The defence of loss of control replaces the defence of provocation which was abolished by Section 56 (1) of the Coroners and Justice Act 2009. Provocation had operated as a special defence or partial defence to a charge of murder and had the effect of reducing the murder charge to one of manslaughter under Section 3 of the Homicide Act 1957. The new partial defence of loss of control is provided by Sections 54 and 55 of the 2009 Act. The defence can only therefore be raised as a defence to a murder charge. Even if successful there will still be a conviction for manslaughter and not murder. If the defence is not successful there will be a conviction for murder.
The nature of the defence is that there must be a loss of control (Section 54 (1) and there needs to be a qualifying trigger (Section 54 (1) (b). Section 55 later helps to define what amounts to a qualifying trigger but Section 54 (2) deals with concerns about ‘slow burn’ type situations by providing that loss of control need not be sudden. The loss of control is a matter of fact for the jury to determine and whilst it need not be sudden, time is a factor and any lapse of time between any incident and the killing is material. It does not necessarily follow that the old case law under the law of provocation is no longer relevant and time will tell how helpful the former cases will be. We also know from the 2009 Act that the defence will fail if it can be shown that the defendant acted out of revenge (Section 54 (4).
Section 54 (1) (c) deals specifically with the individual’s circumstances by setting the bar in terms of reasonableness. Would a person with certain characteristics such as the same sex, age and with an ordinary level of tolerance and self-restraint as the defendant have acted in the same or similar way to the defendant.12
Although the loss of management is mindful of provocation, it’s a lot of prescriptive. The reason for the derangement should currently have a ‘qualifying trigger’ below Section 55 CJA 2009. polemically Parliament fixed that sexual infidelity was to be forgotten as a qualifying trigger while sexual infidelity cannot offer associate excuse to deliver fatal blows as a penalty, it’s capable of arousing sturdy emotions. It should sure be illogical for a fact-finder to be liberated to contemplate the other betrayal at intervals a relationship however a sexual one. Sexual infidelity isn’t excluded from thought. It will not be the only real basis of the defence of loss of management however it will be thought of as a part of a course of conduct.
– The first case, R V Clinton 2012 Clinton killed his wife because of her sexual infidelity. He was sentenced to life in prison and sentenced to life in prison for at least 26 years. His case was dismissed appeals for mitigation of offenses and penalties remained unchanged.34
Under the new halfway guard of loss of restraint s54 CJA 2009 looks like the old law of incitement with a couple of contrasts. Keeping in mind the end goal to raise the protection the loss of discretion must have a qualifying trigger (a subjective test) and a man of the litigant’s sex and age with an ordinary level of resistance and patience and in similar conditions may have responded in the same or comparable path to the respondent (a test must be same as Camplin).5
Coroners and Justice Act 2009 Section 54 is issued to help defendants (who may be victims of the victims, especially rape and adultery cases). Incitement from the victim to the defendant caused them to lose control of themselves leading to murder. There are many reasons for the case. Depending on the circumstances, the judge in the court makes the decision and bases the case on the law accordingly. Particularly with s.54, murder of an irritated and uncontrolled self is grounded for consideration. However, not all appeals are mitigated, in cases where the court can not adjudicate and refute the appeal, serious cases are reviewed and adjudicated several times in high court order. There are higher court decisions overturn with previous judgments.
2.This area will no doubt be the subject of judicial consideration. In the meantime the fact that the defendant was said to be unwell, sleeping badly, tired, depressed and “unable to think straight” was found insufficient for loss of self-control ( R v Jewell (2014)).
2 R v Doughty 1986 where a baby crying was accepted as a provocative act and the judge was wrong to decide the crying did not fall within the definition of a provocative act. (Webstroke Law, 1986)
3 Jersey v Holley 2005 the review of the tolerance was dismissed.
(Casa briefs, 2005)
4 DPP v Camplin 1978 House of Lords (e-lawresources.co.uk, 1978)