Loss of Control – Domestic and Comparative Perspectives
Published date | 01 April 2023 |
DOI | http://doi.org/10.1177/00220183231170043 |
Author | Amanda Clough,Alan Reed |
Date | 01 April 2023 |
Loss of Control –Domestic and
Comparative Perspectives
Amanda Clough
Northumbria School of Law, Northumbria University, UK
Alan Reed
University of Northumbria, UK
A new template for loss of control as a partial defence to the crime of murder became effective in English
criminal law from 4 October 2010 by the provisions contained within sections 54–56 of the Coroners and
Justice Act (CJA) 2009. A tripartite schema was adopted which focused on whether the defendant lost
self-control predicated upon a delimited qualifying trigger, and whether the normative objective individ-
ual of normal tolerance and self-restraint might also have lost control in all of the circumstances. Revenge
killings were presumptively excluded, and controversially also sexual infidelity killings-more specifically
things said and done that relate to sexual infidelity. Since adoption of these novel overarching precepts, a
series of domestic appellate cases have striven to rationalise and contextualise the legislative terminology,
and important developments in this arena have occurred across a panoply of alternative legal systems. In
this Special Edition leading academicians in the field evaluate and critique these developments and
provide novel insights on reform optimality to enhance justice and fair outcomes.
The first article by Professor Susan S.M. Edwards and Professor Jennifer Koshan highlights that in
England and Wales, the CJA 2009, s. 55(3) introduced into statute ‘fear of serious violence’as a
ground (or ‘a trigger’) for loss of control manslaughter. It was intended to take into account the circum-
stances of women who in self-preservation kill abusive and violent intimate partners. Despite this import-
ant reform, a woman who defends herself from a partner’s abuse and violence in both manslaughter and
self-defence pleadings continues to be assessed with reference to a masculinist interpretation of what is
reasonable through the anthropomorphic ‘reasonable man/person’, and loss of control still underpins vol-
untary manslaughter.
In Canada, the homicide provisions in the Criminal Code, RSC 1985, c C-46, were amended in 2012
to reframe the law of self-defence (s. 34) and in 2015 to revise the law of provocation by which culpable
homicide can be reduced to manslaughter (s. 232), with neither amendment accounting explicitly for the
circumstances of women who kill abusive partners.
In both jurisdictions despite revisions to the legal construct of ‘loss of control manslaughter’(England
and Wales) or the provocation defence (Canada), the common law underpinnings of these defences and
jurors’perceptions of what constitutes or what can trigger ‘loss of control’continues to inform such
pleadings whilst the law on self-defence (with its masculinist requirements and interpretation of propor-
tionality and reasonableness) remains largely inaccessible to the abused woman who defends herself from
an intimate partner’s violence and abuse.
Corresponding author:
Alan Reed, Northumbria University, Newcastle upon Tyne, NE1 8ST, UK.
E-mail: alan.reed@northumbria.ac.uk
Editorial
The Journal of Criminal Law
2023, Vol. 87(2) 73–74
© The Author(s) 2023
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DOI: 10.1177/00220183231170043
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