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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.
It is now thought that the effect is that a judge must leave the partial defence to the jury even where the evidence is such that no jury properly directed could reasonably conclude that a reasonable person would have reacted as the defendant did. This contrasts with the common law position that existed prior to the Homicide Act 1957, where the judge was not required to leave the issue to the jury in such circumstances. In R v Clinton 2012 the trial judge held that the defence of loss of control was not available to the defendant because the words relating to infidelity should be disregarded as a qualifying trigger. On appeal the Court of Appeal decided that where infidelity was a factor this could influence other qualifying triggers and a retrial was ordered.
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.
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)).
In R v Workman (2014) The defendant's estranged wife was stabbed during a quarrel and whilst there was evidence that the victim charged at the defendant there was no evidence that the defendant had lost control. A similar finding of no loss of control was found in R v Barnsdale-Quean (2014).
Section 55 requires one or both of two qualifying triggers to exist which are accountable for the loss of control. Under Section 55 (3) and (4) the qualifying triggers are fear of serious violence which need not be from the victim, and of a thing or things done or said (or both) in circumstances of an extremely grave character and a justifiable sense of being seriously wronged. Whether a defendant’s sense of being seriously wronged is justifiable will be an objective question for a jury to determine (assuming that there is sufficient evidence for the defence to be left to the jury).
In R v Asmelash (2013) what amounted to a qualifying trigger was tested. In that case the defendant had murdered the victim when drunk. The defence failed, whilst intoxication did not rule out the partial defence, it did not meet the reasonableness test as envisaged by Section 54 C) (1). We are further helped by the case of R v Dawes (2013) where the defendant entered his estranged wife's house and found her asleep with a third party. The defendant set about the third party hitting him with a bottle. The third party managed to get the bottle away and attacked the defendant. The defence of loss of control was not put to the jury and there was an appeal. On appeal there was insufficient evidence that it was Dawes' purpose to provide him with an excuse or opportunity to use violence by acting in the way he initiated the attack but the Court of Appeal held the trial judge was correct for not leaving the loss of control defence to the jury as there was insufficient evidence that he had lost his control.
Section 54 (1)(c) contains what we understand to be 'a normal person test' that is to say an objective element in that 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's. However some aspects of the partial defence are subjective, for example the jury must must be satisfied that the defendant lost control as a result of one of the qualifying triggers, so it is necessary to examine the defendant's state of mind. Having said that under Section 55 (3) and (4) the qualifying triggers are fear of serious violence and need not be from the victim, and of a thing or things done or said (or both) in circumstances of an extremely grave character and a justifiable sense of being seriously wronged and Lord Judge in Clinton (2012) clearly acknowledged that these circumstances spoken of in section 55 needed objective evaluation. See also Zebedee (2012) where the Court of Appeal disallowed an appeal against a conviction for murder on the basis that the more strenuous provisions which had raised the bar were not met.
As regards the impact of the defence of loss of control there are a number of areas for comment.
The former law on provocation became undermined by its lack of scope to deal with societies concerns about its apparent bias towards men. This may have come about as a result of domestic abuse cases where female partners had been subjected to long term physical and mental abuse but there seemed to be a problem over the 'slow burn' effect. The old law did, after all, require a sudden loss of control. This aspect was probably best highlighted in the case of Thornton (No 1) (1992) where the defendant had been provoked by her husband and then stabbed him but only after she had left the room to go into the kitchen to find a knife and sharpen it before she killed him. Similarly in Ahluwalia (1992) the defendant in that case had been provoked by her husband and then killed her husband by pouring petrol over him and lighting it when he was asleep and she was convicted of murder.
Both cases raised issues as there was no sudden loss of control. Both convictions were later quashed as there was evidence of diminished responsibility. Would the case be dealt with differently today? The new law does not require any 'sudden' loss of control so this aspect is different but the law still requires a loss of control so as both cases showed no loss of control, sudden or otherwise it would seem that both cases would still fail.
It could be argued that any objectivity test under the former law appeared to be inconsistent in interpretation and application. The former law was thought to be gender biased. More in favour of defendants who had lost their temper and killed their victim and who were, on the whole, men and less biased towards those who killed as a result of being afraid of serious violence and who were, on the whole, women in an abusive and violent relationship. These issues may have led to injustice in some cases.
The 2009 Act seems to have deliberately tried to overcome this by prescribing the normal test and setting this in the context of a real loss of control and the new qualifying triggers which must amount to a grave wrong. In so far as these later requirements have been drafted and set out into the 2009 Act it must be assumed that it is trying to give effect to Parliament's intentions and in turn this is reflecting society's expectations and attitudes towards domestic violence. It remains to be seen whether the new law will suffer the fate of the old law by slipping into a confusion between case law and statute. Either way the Law Commission's original proposal to do away with a requirement for loss of control where women kill abusive partners would have removed the difficulty from the defence, at least in theory, as there may have been problems with setting the bar in terms of levels of abuse or where there was evidence of revenge.
In reality the new law, including the attempts to refine it, are complex and it is likely to be the case that this special defence as it now stands will need to be tested in the courts before there is any degree of confidence about how to predict the courts interpretation of the statutory requirements. In this regard we have already been assisted by such cases as Clinton, Dawes, Jewell and Zebedee.
The new law includes a fear of violence which seems a matter of common sense but at present it is still rather early to evaluate how this will provision will operate and in practice it may be difficult to determine responsibility on the evidence available.
There is one area where the new law has narrowed and that is sexual infidelity which has been excluded. This could be seen as a major shift in ground and argued that it may reflect modern society's sense of realism. However sexual infidelity should not be ruled out entirely as Lord Judge specifically made clear when allowing an appeal that infidelity could be a relevant factor, along with other factors, in the context of the qualifying triggers (in Clinton 2012). This seems to be inconsistent with the wording used in the Act of 2009. Furthermore it seems to go against earlier intentions expressed at the consultation stage which specifically raised the point that it was considered unacceptable to allow the defendant to blame the victim for bringing things on themselves through infidelity. It should also be remembered that the defence of provocation, although it appeared in a modern form in the Homicide Act 1957, had developed over a very long period of time before that. It may be that this particular area of the law will be further tested in the future.
We have already spoken about the confusion under the old law and one area where this was perhaps more noticeable was in the area of what amounted to provocation and the nature of it and the context in which it may have taken place. This has been addressed as the defence is now more tightly controlled. This is made clear under the Act of 2009 when it deals with things said or done, now they must must be of an extremely grave character. From the prosecutions point of view they would say that this is only right as society places a high value on human life and the defence should not appear easy to make out. A negative implication might be that it appears to deny the defendant the ability to raise a range of matters which may appear minor in nature but which have been made by the person killed over a period of time and in a calculating and deliberate way to cause harm to the defendant.
In conclusion whilst it seems as though the new law is to be welcomed for addressing concerns apparent under the old law, there will be the need for cases to test the defence in certain areas so that a better understanding and degree of certainty arises for the future.
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