Loss of Control

Key Facts:

• Set out in Coroners and Justice Act 2009. s54 and s55
• Replaces old law on provocation (set out in the Homicide Act 1957)
• Only applicable to murder
• Partial defence, as successful pleas will reduce murder to voluntary manslaughter
• There are some similarities between provocation and loss of control, so some of the case law still applies
• If D provides sufficient evidence, the P must disprove this beyond a reasonable doubt

Where D kills, or is party to the killing of another, D cannot be convicted of murder if:

• s54(a) - D's acts or omissions in doing, or being party to the killing resulted from D's loss of self-control
• s54(b) - The loss of self-control had a qualifying trigger and
• s54(c) - A person of D's 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 similar way to D

Note: Loss of Control applies to secondary participants, in addition to primary murderers. It applies to omissions as well as actions

*Note: the actual wording in the act is 's*x', not 'gender', but Get Revising won't allow that to be written

s54(2): LOSS OF SELF-CONTROL NEED NOT BE SUDDEN. This is a change from provocation, where the law on loss of control did have to be sudden

R v Duffy (1949)

• D killed her husband whilst he was sleeping
• the V had previously subjected her to violence
• Because this took place before the Coroners and Justice Act 2009, D was found guilty

Ahluwalia (1992)

• D had been abused by her husband for many years. one night, he threatened to kill her
• D poured petrol over V, while he slept and set fire to it
• D convicted - under the old law of provocation, D's response had to be 'sudden'. The longer the delay, the more likely the act would have been deliberate and the less likely provocation would have been successful

Thornton (1992, 1996)

• D was abused by her husband. He threatened violence towards her, so she went to the kitchen, sharpened a knife and killed him
• D convicted and appeal dismissed. Provocation, at the time, required proof of sudden loss of self-control

D's loss of self-control must be due to a qualifying trigger. They are outlined in s55:

• s55(3) a fear of serious violence from V against D or another identified person

And/Or

• s55(4) A thing or things said or done (or both) which - 
  • (a) amounted to circumstances of an extrmemely grave character, and
  • (b) caused D to have a justifiable sense of being seriously wronged

Or

• s55(5) a combination of the two

• This was not in the old law of provocation. It was introduced to likely apply to Ds who kill their abusive partners
  • e.g. Duffy, Alhuwalia, Thornton
• Fear of serious violence will be a question for the jury and the V's previous bad character (for instance, whether the V was an abusive partner) could be relevant
• law is silent on whether this is to be tested objectively, or subjectively, but a Ministry of Justice Circular 2010 implied that it was subjective.
  • "the D does not need to prove that his/her fear was reasonable; the jury need only be convicned that the fear was genuine" 
• The fear of serious violence must be against D or another identified person

Two things D has to show for raising this defence

• the circumstace of an extremely grave character
• They caused D to have a justifiable sense of being seriously wronged

This was not contained in the old law of provocation, so Doughty (1986) (for example), who killed his baby because it wouldn't stop crying, would most likely be convicted under loss of control, because there is no justifiable sense of being seriously wronged

Two things are excluded from being qualifying triggers:

• Sexual infidelity 
• 'considered desire for revenge'

• Things said or done could be words, or actions, but they must amount to:
  •  V having an extremely grave character

AND

• giving D a justifiable sense of being seriously wronged

Pearson (1992)

• D's father abused his younger brother
• this provoked D to kill his father with a sledgehammer
• Defence successful
• LP: if courts follow Pearson, the 'things said or done'  need not necessarily be aimed at D  

The things said or done MUST AMOUNT TO CIRCUMSTANCES OF AN EXTREMELY GRAVE CHARACTER for the defence to succeed

OBJECTIVELY tested:

• The jury consider what D ought to have thought, according to the standards of a reasonable man.
• The jury do not have to consider what the D actually thought

R v Hatter (2013)

• V cheated on D
• D climbed through a window at night with a knife
• Claimed to be taking up the carpet, but accidently stabbed V twice, then then himself
• Held: 
  • Circumstances of an extremely grave character and justifiable sense of being seriously wronged tested objectively
  • Proved he was not justifiably wronged and V was not of extremely grave character. 

• Tested OBJECTIVELY, just as circumstances of an extremely grave character
  • confirmed in Bower

R v Bowyer (2013)

• D tried to burgle V. V caught D and taunted him. D killed V
• Held: D was not justifiably wronged by being taunted in that scenario. If anything, the person justifably wronged was the V, who was being burlgled

Zebedee (2012)

• D's dad had altzeimer's and was very ill. D killed him and tried to use loss of control
• Conviction upheld: Things said or done must constitue extremely grave character and D must have a justifiable sense of being seriously wronged
  • Neither of those present in this case

s55(6) Coroners and Justice Act 2009 outlines two specific limits to what can constitue a qualifying trigger

• s55(6) (a and b) - Qualifying trigger will not apply if D incited the thing said or done to provide a defence
• s55(6)(c) - sexual infidelity, as a thing said or done, should be disregarded

• When D taunts V in order to provoke V into saying or doing something bad to D, so then D fatally attacks V in return

R v Johnson (1989)

• D and V had both been drinking
• D threatened V's girlfriend and a fight broke out between D and V
• D fatally stabbed V
• D's conviction was quashed on appeal, because it was under the old law of provocation
  • Loss of control has tried to ammend this and D's appeal would probably be dismissed if he had committed the crime now, because incitement to provide a defence is specified as a limitation to qualifying triggers

R v Dawes (2013)

• D came home to see his girlfriend asleep with V.
• D punched V and threw a bottle at him. V threw the bottle back. D then fatally stabed V
• This did not overrule Johnson, as incitement only negates the qualifying triggers when D incites for the specific purpose of providing himself with a legal defence

Clinton (2012)

• D and V = husband and wife
• V walked out on D + children, making him suicidal
• D invited her to talk and sort things out and she told him that she had an affair, mocked his suicidal thoughts and told him that she didn't want the kids
• Initial trial: D's defence initially failed. The trial judge refused to make the defence available, because sexual infidelity is a excluded from being a qualifying trigger.
• CA: Loss of Control was allowed by the CA; his murder conviction was substituted for manslaughter.
  • sexual infidelety cannot be relied on by itself, but may be taken into account where there are other qualifying triggers, including mocking his suicidal thoughts and disowning the children
    • Interpretted through Hansard, as the minister behind the Act gave a speech on how this scenario should be interpretted by the courts

Loss of Control will not apply if "in doing, or being party to the killing, D acted in a considered desire for revenge" (s54(4) Coroners and Justice Act)

Ibrams and Gregory (1982)

• D and D planned to kill V five days after V provoked them.
• Their defence failed, because the planning and five day wait signals evidence of revenge.

s54(1) and (3) states:

"a person of D's 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 in a similar way to D"

this is the 'normal person' test and it takes into account:

• D's age
• D's gender*
• D's circumstances

But a normal degree of tolerance and self restraint is required

• used to be a stricter reasonable man test with provocation; none of D's characteristics could be taken into account
• Loss of Control changed the law to allow the jury to consider some characteristics (D's gender* and age), after these harsh rulings: 

R v Lesbini (1914)

• V made anti-semitic comments towards D, a jew
• D shot V and his murder conviction was upheld
  • His faith was not taken into account, as the reasonable man was not Jewish
• His faith would have been taken into account with Loss of Control

Bedder (1954)

• D was impotent and tried to have intercourse with a prostitute. She laughed and he killed her
• Impotence not taken into account, as reasonable man isn't impotent

Camplin (1978)

• D = 15 year old boy
• V buggr3d + taunted D
• D hit V with a chapati pan and V died
• D's defence failed, because the 'reasonable man' was not a 'reasonable 15 year old boy'
  • Convicted of murder
• CA quashed his conviction on appeal, as the jury should have been directed to consider the effect of the provocation on a '15 year old boy'
  • Lord Diplock: "the reasonable man ... is a person having the power of self control to be expected of an ordinary person of the (same) gender* and age as the D"

• If D has a short temper, the jury should not take this into account

• Includes any circumstances, except circumstances relating to D's general capacity for tolerance and self-restraint
• E.g. a history of abuse towards D from V could be taken into account (Dyer, Thornton, Ahluwalia). If D is a 23 year old woman, who has been abused frequently by V, the jury must consider whether a woman of the same age, with an ordinary level of tolerance and degree of self-restraint might have done the same, or a similar thing, to their partner

• Loss of Control is set out in s54 the Coroners and Justice Act 2009 and the qualifying triggers are set out in s55. This replaces the old law of Provocation, under the Homicide Act 1957
• s54(a) - D's acts or omissions In doing, or being party to the killing must have resulted from a loss of self-control
  • the loss of self control now need not be sudden
  • cases: Duffy, Thornton, Ahluwalia
• s54(b)The loss of self conrol had a qualifying trigger
  • s55(3)fear of serious violence from V agains D or another identified person AND/OR
  • s55(4) a thing said or done (or both) which
    • (a) amounted to circumstances of an extremely grave character AND
    • (b) caused D a justifiable sense of being seriously wronged
  • s55(5) OR a combination of the two
  • cases: Doughty, Pearson, Hatter, Bowyer, Zebedee, Johnson, Dawes, Clinton
• A person of D's gender* and age, with a normal degree of tolerance and self restraint and in the circumstances of D might have acted in the same, or similar way to D
  • Cases: Lesbini, Bedder, Camplin
• A person cannot use Loss of Control for revenge killings (Ibrams and Gregory)