Loss of Self-Control as a Defence: The Key to Replacing Provocation
| Author | Amanda Clough |
| DOI | 10.1350/jcla.2010.74.2.624 |
| Published date | 01 April 2010 |
| Date | 01 April 2010 |
| Subject Matter | Comment |
COMMENT
Loss of Self-control as a Defence: The Key to
Replacing Provocation
Amanda Clough*
Keywords Provocation; Loss of control; Partial defences to murder;
Reform; Coroners and Justice Act 2009
The Coroners and Justice Act 2009 abolishes the common law partial
defence of provocation and in its place introduces a new partial defence
to murder of loss of control,1which can be attributed to fear as well as
anger. This is the government’s response to the Law Commission’s 20062
Report which recommended not only reshaping the partial defences to
murder, but also reforming the law of homicide as a whole. Regarded as
the first step to reform in this area, this comment considers whether it is
a step we needed to take.
The problem with provocation
Provocation has always had its place in English law as the recognition of
human frailty, as passion aroused in the provoked killer takes away his
ability to reason. It has a vast common law background of change and
interpretation, and the defence as presented in the modern-day court-
room still shows aspects that appear outdated. Holten and Shute noted
that the defence contains features ‘not applicable to modern times’.3It
has always been the subject of criticism and proposals for reform, either
as regards the oxymoronic objective standard of reasonableness or as to
whether cumulative provocation should be accepted to make the de-
fence more accessible for women who have suffered domestic violence.
It is therefore unsurprising that the Law Commission has focused on this
topic in recent years,4suggesting some radical changes not only to
defences to murder, but also to the structure of homicide itself. Indeed,
most criminal law commentators have queried as to how much longer
the law on provocation will need to be stretched to include worthy cases
before it is finally realised that the defence needs to be cut from new
cloth.
A Consultation Paper published in July 2008 recommended a new
partial defence to murder with two limbs to replace provocation, still
based on a loss of self-control with an objective measure, but recognising
* LLB; e-mail: amandaclough@hotmail.com.
1 Coroners and Justice Act 2009, ss 54–56. The Act received Royal Assent on 12
November 2009.
2 Law Commission, Murder, Manslaughter and Infanticide, Law Com. No. 304 (2006).
3 R. Holten and S. Shute, ‘Self-Control in the Modern Provocation Defence’ (2007)
27(1) OJLS 49.
4 See Law Commission, Partial Defences to Murder, Law Com. No. 290 (2004) and Law
Com. No. 304 (2006), above n. 2.
118 The Journal of Criminal Law (2010) 74 JCL 118–126
doi:10.1350/jcla.2010.74.2.624
To continue reading
Request your trial