Anger and Fear as Justifiable Preludes for Loss of Self-Control
| Author | Susan S. M. Edwards |
| DOI | 10.1350/jcla.2010.74.3.638 |
| Published date | 01 June 2010 |
| Date | 01 June 2010 |
Anger and Fear as Justifiable
Preludes for Loss of Self-Control
Susan S. M. Edwards*
Abstract Following the Coroners and Justice Act 2009, s. 56, the common
law defence of provocation, which depended on a sudden and temporary
loss of self-control (following R v Duffy1), is now abolished, as is s. 3 of the
Homicide Act 1957. In its place is substituted a statutory defence of loss of
self-control, which relies on some of the principles that constituted the
grounds for provocation, its predecessor. For the first time fear qualifies as
a new ground for loss of self-control (2009 Act, s. 55(3)). This article
examines the new partial defence of ‘loss of self-control’ and considers
what distinguishes the new defence from its predecessor and the features
which are retained. It also evaluates whether the overarching objectives of
restricting the ambit of the earlier defence and providing a new defence
for battered women, shared by both the Law Commission and the govern-
ment, are well considered and likely to be achievable. The new partial
defence will be considerably restricted both by the new criteria and by
returning the power to the judge, as ‘gatekeeper’, to prohibit an un-
meritorious defence from going to the jury (2009 Act, s. 54(6)). The
inclusion of fear as a new ground for loss of self-control will continue to
present difficulties as long as the definition of ‘extremely grave’, a requis-
ite of the qualifying trigger to this loss of self-control, is a jury question,
and also insofar as ‘justifiable sense of being seriously wronged’ is to be
judged on objective grounds. Further difficulties are presented by the
requirement that the capacity for self-control, now expressed as the
‘tolerance’ and ‘restraint’, required of the defendant, is to be decided on
objective grounds.
Keywords Loss of self-control; Battered women; Anger; Fear
This article considers the new defence of ‘loss of self-control’. Sections
54–56 of the Coroners and Justice Act 2009 is the product, in the main,
of the recommendations of the Law Commission which began working
on this project in 2003, when it published its Consultation Paper, Partial
Defences to Murder (2003).2This was followed by its Final Report on
Partial Defences to Murder (2004),3and a further Report on Murder Man-
slaughter and Infanticide (2006).4The government responded in 2008.5
The Law Commission Consultation Paper, as in its later reports, was
primarily concerned with two questions: (1) ‘Is it morally sustainable for
sudden anger to found a partial defence to murder?’ (para. 4.163), and
* Professor and Dean of Law, University of Buckingham; Door Tenant, Clarendon
Chambers, Temple, London; e-mail: susan.edwards@buckingham.ac.uk.
1 [1949] 1 All ER 932.
2 Law Commission, Partial Defences to Murder, Law Com. Consultation Paper No. 173
(2003).
3 Law Commission, Partial Defences to Murder, Law Com. Report No. 290 (2004).
4 Law Commission, Murder, Manslaughter and Infanticide, Law Com. Report No. 304
(2006).
5 Ministry of Justice Murder, Manslaughter and Infanticide: Proposals for Reform,
Consultation Paper CP19/08 (2008).
223The Journal of Criminal Law (2010) 74 JCL 223–241
doi:10.1350/jcla.2010.74.3.638
(2) is it sustainable to provide a partial defence for those who kill in
anger, but not for those who kill out of despair? (paras 4.166, 4.167).
The anger trigger to loss of self-control
The new defence is no longer to be referred to as provocation but as ‘loss
of self-control manslaughter’. Section 54 sets out the criteria which
must be met in order for the defence to succeed. Subsection (1) states,
‘the defendant’s conduct resulted from a loss of self-control . . .’. While
loss of self-control remains at the very heart, no explanatory note is
provided as to what will be accepted as evidence of loss of self-control.
Given that there is no change in the nomenclature, we can expect a
mirror image of the behaviour and legal descriptors that passed for loss
of self-control under the old law of provocation to be replicated here.
Angered states clearly remain the leitmotif of loss of self-control. As
such, the experience of the common law will be drawn upon and loss of
self-control will continue to be founded on moral indignation or out-
rage,6or on what Norrie calls ‘imperfect justification’.7The manifesta-
tion of ‘loss of self-control’ will continue to depend on outwardly visible
and physical signs of outburst,8and defendants will continue to express
themselves in identifiable formulaic terms: for example, ‘spin round
quickly’9and ‘went berserk’.10 Loss of self-control is all or it is nothing,
although the current law in removing ‘temporary’ does leave this ques-
tion, albeit unintentionally, rather open. It is to be noted that much of
the criticism of the former law on provocation was concerned that this
behaviourally specific outward expression of loss of self-control which
prioritised anger as its clearest expression, excluded anxiety, fear, panic
and horror, as impassioned states somewhat outside the conventional
sign/signifier of loss of self-control.
The new thinking on loss of self-control (s. 54(2)) abandons the
requirement of immediacy, which owed its central place in the common
law to the definition of provocation, formulated by Devlin J in Duffy and
endorsed by Lord Goddard CJ in the Court of Appeal.11 Devlin J had
placed immediacy at the heart of the defence of provocation, when he
directed the jury, with these words:
Provocation is therein defined as some act, or series of acts, done by the
dead man to the accused which would cause in any reasonable person, and
6 J. Horder, Provocation and Responsibility (Clarendon Press: Oxford, 1992) 97, 106, in
which he argues that grave provocation took the place of ‘honour’ in deeming what
was sufficient for killing under provocation.
7 A. Norrie, ‘The Coroners and Justice Act 2009—Partial Defences to Murder: (1)
Loss of Control’ [2010] Crim LR 275 at 278.
8 R. Holton and S. Shute, ‘Self-control in the Modern Provocation Defence’ (2007)
27(1) OJLS 49.
9R v Phillips [1969] 2 AC 130.
10 R v Richens [1993] 4 All ER 877; the trial judge’s direction on provocation included
the phrase ‘going berserk’. In R v Campbell [1997] 1 Cr App R 199, the fact that the
defendant had ‘gone berserk’ provided the opportunity for retrial on grounds of
provocation (where the defendant had hit a woman hitchhiker with a hockey stick
round the throat and strangled her!).
11 R v Duffy [1949] 1 All ER 932. See also S. Edwards, ‘Mr Justice Devlin’s Legacy:
Duffy—A Battered Woman “Caught” in Time’ [2009] Crim LR 851.
The Journal of Criminal Law
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