Coroners and Justices Act 2009 - loss of control partial defence to murder

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This is a BRAND NEW special partial defence to murder, introduced by **.54 and 55 of the CORONERS AND JUSTICE ACT 2009 which came into force on the 4th October 2010. It completely REPLACES the ancient common law defence of provocation, which was abolished by s.56 (1) CAJA 2009, although some of the case law that had built up around the old defence may continue to have relevance under the new defence.

NB  Section 3 Homicide Act 1957 ceases to have effect.

Background to the reform:

The Law Commi**ion had been advocating reform of the provocation defence for several years and in their Murder, Manslaughter and Infanticide Report 2006 they stated that the “defence of provocation is a confusing mixture of judge made law and legislative provision.”

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Loss of control continues to operate as a special partial defence; only available to murder and reducing liability to voluntary manslaughter. (s.54 (7)) To rely on this, D must provide sufficient evidence meaning the judge must be satisfied there would be enough evidence for a jury to apply the defence (evidential burden), thereby taking cases that are “purely speculative and wholly unmeritorious” away from the hands of juries.

The onus is then on the prosecution to disprove, beyond reasonable doubt that D did not kill as a result of loss of control. (s.54 (5)). If the prosecution fail to do this, D will be convicted of voluntary manslaughter, providing the judge with discretion when sentencing.

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Section 54 Coroners and Justice Act 2009

(1) Where a person (D) kills or is party to the killing of another (V), D is not to be convicted of murder if:

a. Ds acts and omissions in doing or being a party to the killing resulted from Ds loss of self control,

b. The loss of self control had a qualifying trigger (see s.55), and

c. A person of Ds gender and age, with a normal degree of tolerance and self restraint and in the circumstances of D might have reacted in the same or a similar way to D.

(2) For the purposes of subsection (1) (a), it does not matter whether or not the loss of control was sudden.

(3) In subsection (1) (c) the reference to ‘the circumstances of D’ is a reference to all of Ds circumstances other than those whose only relevance to Ds conduct is that they bear on Ds general capacity for tolerance or self restraint.

(4) Subsection (1) does not apply if...D acted in a considered desire for revenge.

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Loss of control

The central issue to the defence is to show that D killed as a result of a loss of control; however there is no longer a requirement for the loss to be sudden as was essential for provocation~Duffy [1949].

Previously, the courts had accepted the “slow burn” reaction (Thornton [1992] and therefore, a time delay between the last provocative incident and Ds eventual loss of control was not necessarily fatal to the defence but the longer the gap, the weaker the defence (Ahluwalia [1992]). The omission of the word “sudden” from the new defence does mean that a time delay in itself will not negate the defence provided D did indeed lose control.

However, this change is unlikely to make much difference in practice. Cases such as Thornton [1992] and Ahluwalia [1992] failed because it was decided that there simply was no loss of control, it was felt they planned their attacks, and it is therefore unlikely that such cases will be viewed differently by the courts under the new law. Therefore, an opportunity to provide a viable defence for women in abusive relationships who go on to kill appears to have been missed.

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Loss of control

Loss of control will also not be allowed if it results from Ds considered desire for revenge – therefore implying that some form of moral justification may be necessary on Ds part (s.54(4)).

It will also not be available where Ds loss of control arose from the alleged sexual infidelity on Vs part, thereby overruling Davies [1975].

This will ensure that men who, in order to preserve or restore the family honour, intentionally kill their wives or other female relatives who have allegedly been unfaithful will no longer be able to plead loss of control. Nor will the excessively jealous partners who kill their wives/girlfriends on discovering they have been having an affair. (However, note impact of R v Clinton [2012]) on this element of the defence.)

The Government’s message is loud and clear: male violence towards women is unacceptable in the 21st century and will not be condoned.

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R v Clinton 2012

R v Clinton 2012

Now provides that sexual infidelity can be considered if it provides “an essential part of the context” of another qualifying trigger. Judge accepted that often it is not possible to separate the sexual infidelity from all the background factors to the loss of control of D.

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TRIGGER 1: A “fear of serious violence” (s. 55 (3)

This trigger is available for those who cannot plead self defence because although there was an anticipated attack, it was not an immediate threat, and hence no necessity to use force. Loss of control could therefore be available in domestic violence cases, but only where it is still believed there has been a loss of control, in contrast to Ahluwalia [1992] and Thornton [1992].

It should also be available to those subject to gross bullying and terrorising from V – as happened in Ibrams and Gregory [1981] (though the defence would nevertheless have failed in this particular case due to no loss of control.)

Lastly, it should also apply to those who would be unable to use self defence because, although they were (or believed themselves to be) under attack, they had used excessive force.

Limitations of this trigger:

  •  D must fear violence from V as opposed to from some other third party.
  •  D must fear that the violence will be used against D or “another identified person” (s.55(3))– which could possibly include a younger sibling as in Pearson [1992].
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TRIGGER 2: A thing or things done or said (or both

Loss of control is much narrower than provocation in imposing two further requirements not found in the old defence. A jury must believe that the things done/said:

  • (a) Constitute circumstances of an extremely grave character and
  • (b) Cause D to have a justifiable sense of being seriously wronged.

The word ‘justifiable’ adds an objectivity to the test as someone may have a sense of being seriously wronged by a seemingly minor insult. It would now surely be impossible for the new defence to work in such cases as:

  • o Doughty [1986] where D killed his son after he would not stop crying.
  • o Smith (Morgan James) [2000] where V sold Ds tools to buy alcohol.              

However, the new defence would be available in cases such as:

  • o Camplin [1978] as being ***** would surely amount to ‘circumstances of an extremely grave character’ and D would no doubt feel ‘a justifiable sense of being seriously wronged'.
  • o Humphreys [1995] D believed her violent boyfriend/pimp (V) and his friends were going to gang **** her and she also claimed V had mocked her failed suicide attempt giving D a “justifiable sense of being seriously wronged”.)
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See above – Humphreys [1995]


Even if D has a “fear of serious violence” or a “sense of being seriously wronged by a thing said/done” and has a loss of control resulting in Vs death, s/he will not be able to rely on the defence if the trigger was self inflicted, i.e. D incited something to be said or done “for the purpose of providing an excuse to use violence”.

However, the use of ‘incite’ and ‘purpose’ seem to suggest that D will still be able to rely on the defence if he inadvertently self induced the triggers (case law will need to confirm this though.)

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THE ‘NORMAL’ PERSON TEST (s.54 (1) (c):

Whichever trigger is relied upon, D will be expected to be able to show that a “person of Ds age and sex, with a normal degree of tolerance and self restraint and in the circumstances of D, might have reacted in the same or similar way to D”.

This appears to take its lead from Camplin [1978] and Holley [2005] where none of Ds characteristics (other than age and sex) were relevant in assessing Ds ability to exercise self control (i.e. normal degree of tolerance and self restraint).

(1) The reference to a ‘normal degree of tolerance’ means that any irrational prejudices such as racism and homophobia are excluded.

(2) The reference to a ‘normal degree of self restraint’ means that characteristics such as a bad temper and pugnacity (hostile/eagerness to fight) are excluded from the ‘normal person’ test.

(3) However, the ‘normal person’ must be placed in “the circumstances of D”. This again reflects the pre reform situation that in certain cases, Ds characteristics may be taken into account in determining the reaction of the ‘reasonable man’ to the trigger. (Diplock’s two part test – gravity of provocation.)

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THE ‘NORMAL’ PERSON TEST (s.54 (1) (c): continued

Case law will still need to be developed to fully explain the meaning of this terminology, but the kind of circumstances into which the normal person may have to be placed may include:

  • o Gregson [2006] D was unemployed, suffered depression and epilepsy. V taunted him about the unemployment. To D, all issues were connected – he attributed unemployment to his depression and epilepsy. Unemployment is clearly a ‘circumstance’ and so the ‘normal person’ would also be unemployed.
  • o Hill [2008] D had been sexually abused as a child. V tried to sexually assault D. If history of sexual abuse is a ‘circumstance’ then the normal person would have to be placed there too. A history of sexual abuse is a circumstance which has relevance beyond Ds “general capacity for tolerance and self restraint”.

(4) The jury will also have to be satisfied that the ‘normal person’ might have ‘reacted to the trigger’ in the same way and therefore gone on to kill as D did.

This could be seen as the limiting factor. A jury might believe that a ‘normal person’ would have lost control, but not then believe he would react in the same way – such as head-butted, strangled and electrocuted his ex girlfriend after being told she was going to have an abortion (R v Clarke [1991]).

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1. The defence will only be available if the trigger was of an extremely grave character, meaning words or conduct which causes the D to have a “justifiable sense of being seriously wronged” or “fear of serious violence”.

This second scenario could extend the defence to murder where a person has used excessive force in self-defence. Thus the defence could cover both where D has killed in anger and where the D has killed in fear. 

2. The focus of the defence does not seem to be on Vs conduct in provoking D and making D lose control but rather on D having a “justifiable sense of being seriously wronged.” The wording suggests that D should have some moral right on his/her side rather than this simply being an example of human frailty. 

3. The need for a “sudden” loss of self control is abolished, thus addressing the issue that the defence favoured the male defendant (but the practical effects of this change still remains to be seen - a long time delay makes it harder to find that D did actually lose control).

4. Male defendants frequently used the defence on the basis that the victim had been unfaithful – this will no longer be permitted (save for the qualification made in R v Clinton [2012]).

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