Provocation- now called Loss of
Self Control
Under Coroners and Justice Act 2009 this defence
applies where the D kills after suffering a loss of self
control because they feared serious violence form the
deceased or because of things said or done that were
extremely grave and gave the defendant a ‘justifiable
sense of bring wronged
Loss of Self Control
• Introduced by Homicide Act 1957 and amended by
Coroners and Justice Act 2009 s54.
• A person who kills or was party to a killing may be
convicted of manslaughter rather than murder where
there exists:
• (a) a loss of self-control,
• (b) the loss of self-control had a qualifying trigger, and
• (c) a person of D's sex 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.
A subjective Test
• Do not need to show that the D did not know
he did not know what he was doing
• There still is an intention to kill or cause GBH,
but the D was unable to control himself
• There loss of control needs not be sudden
• There needs to be some evidence to support
the D’s claim
• Revenge and killings for jealousy are express
excluded under s55 CJA
The qualifying Triggers
• 1 Fear of serious violence from the victim
against the D or another identified person
• Fear of violence does not have to be from the
person killed but it must be against an
identifiable person.
• TASK- Write down Case examples to highlight this
point
2- things said or done (or both) which constituted circumstances
if an extremely grave character, and cause the D to have a
justifiable sense of being wronged
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Things said or done - must be for the jury to decide whether it was of extremely grave character
and caused D to have a justifiable sense of being wronged whilst considering whether someone of
the same age and sex would have considered it so.
Certain matters are specifically excluded under s55 CJA 2009:
Sexual infidelity
Desire for revenge
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The old defence of provocation could be available to people who killed in these circumstances if
they could convince the jury that there was an immediate and responsive loss of control. This was
one of the policy reasons for the introduction of ‘loss of control’ to replace provocation.
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R v Ibrams and Gregory (1981) – Ibrams’ ex boyfriend was harassing her at her flat and new
boyfriend Gregory was not happy about this. On 7th October the police would not respond to their
calls complaining about V and On 10th October they hatched a plan to attack V and, then carried it
out on 12th October, killing him. Their argument of voluntary manslaughter by provocation was not
accepted on the grounds that the delay of 5 days meant that it was not a sudden loss of control in
response to the provocation.
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TASK- write out the facts of Weller 2003 and Clinton, Parker and Evans 2012
3- A person of the D’s sex and age, with a normal degree of
tolerance and self restraint and in the circumstances may have
acted in a similar way.
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If D has lost control as a result of a qualifying trigger then it is necessary for D to show that:
“…person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and
in the circumstances of the defendant, might have reacted in the same or similar way”. This is a
question of fact for the jury to decide.
This is similar to old provocation in that D’s sex and age should be taken into account. In the case of
R v Camplin [1978] House of Lords said the sex and age of the defendant were the only things to be
considered and this was re-affirmed in the case of Attorney General for Jersey v Holley [2005] which
further stated that none of D’s characteristics, apart from age and sex, were relevant in assessing
D’s ability to exercise self control.
The Coroners and Justices Act 2009 now puts these considerations into statute. D is expected to
show a normal degree of tolerance and self control and the jury cannot consider any circumstances
of D that might have made him have less self-control e.g. being particularly hot-tempered.
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The consideration of whether a normal person of D’s age and sex would have acted in the same or
similar way has to be judged against the circumstances which D was in.
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R v Gregson [2006]
• – D was epileptic and suffering from depression and was recently
unemployed as a result of his epilepsy. V taunted D about his
unemployment and D attacked and killed V. Although this case was
considered under the old law of provocation, if considering it in light of
loss of control, his unemployment, depression and epilepsy would
probably be relevant to the circumstances that D was in and therefore
relevant to be considered for his partial defence.
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• Remember – they would not be considered in relation to D’s ability to
exercise self restraint or to his levels of tolerance as only age and sex are
considered re: this element.
• If D has shown that he suffered a loss of self control that was brought on
by a qualifying trigger and that a normal person of the same age and sex
as D would have lost control, then it is for the jury to consider whether
that normal person would have acted in the same or a similar way to D i.e.
the defence will fail if the jury consider that a normal person would have
lost control but would not have acted in the same way.
TASK
• Using the cases of Holley and James and
Karimi explain what factors can be taken into
account
Comparison of provocation and loss
of control:
• The law on provocation was a common law one and despite some
guidance in the Homicide Act 1957 the rules on the various
elements were vague and inc. reasonable man test not being more
fully defined until R v Camplin [1978].
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• Loss of control is now defined by statute and in some ways provides
a wider defence than provocation in that the loss of control does
not have to be sudden and there is the possibility to rely on it in
relation to the fear of serious violence which in tandem opens the
defence to battered wives, abused children etc.
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• It also narrows the possibility of jealous spouses or people out for
revenge (literally) being able to get away with murder.
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Provocation now termed Loss of self control – under
s54-56 CJA 2009
• Evaluation of this change – the following differences apply:
– Whereas previously there needed to be things said/done/both which
provoked the D now there needs to be fear of serious violence from Victim (V)
against D or another identifiable person or a thing(s) done/said/both which
constituted circumstances of an extremely grave character and caused D to
have a justifiable sense of being seriously wronged or a combination of both
of these. Note that if the fear of serious violence or a sense of being seriously
wronged will not be acceptable if D incited the thing said/done for the
purpose of using an excuse to use violence and also anything said/done which
constitutes sexual infidelity is also not acceptable as a trigger.
– Whereas previously there needed to be a sudden and temporary loss of self
control this no longer applies
– Whereas previously the reasonable person test had come under much debate
due to recent cases this now seems to have been restricted to reasonable
person of age/sex as D with normal powers of control and self-restraint.
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CONSOLIDATION & REVISION
QUESTIONS
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What is the effect of a successful defence of diminished responsibility or loss of control to the
charge of murder?
What type of abnormality must D be suffering from in order to rely on the defence of diminished
responsibility?
What has “substantially impaired” been held to mean?
What act deals with the definitions for diminished responsibility and loss of control?
Can intoxication due to addiction to alcohol be considered in diminished responsibility?
Give two problems which still remain in the law on diminished responsibility.
What does the Coroners and Justices Act 2009 specifically exclude as qualifying triggers for the
purpose of loss of control?
Does the loss of control relied on as a partial defence have to be a sudden response to provocation
by V?
What standard of self control is D judged against?
Give two problems which still remain with the law of loss of control.