Loss of Self-Control: Back to the Good Old Days

AuthorChris Morgan
Publication Date01 April 2013
Loss of Self-control:
Back to the Good Old Days
Chris Morgan*
Keywords Provocation; Loss of self-control; Emotion; Reform;
Diminished responsibility
There has been considerable focus on the loss of control element of the
provocation defence, now known as the loss of self-control defence in
the Coroners and Justice Act 2009 (CJA 2009). It has recently been
argued1that a reform of the loss of self-control element should focus on
the mental occurrences in the defendant’s mind at the time of the killing
to see whether the defendant had scientif‌ically lost his self-control. Only
in this instance could the defendant rely on the defence.
It is clear from the case law pre-CJA 2009 that the lay person’s view
of loss of self-control is f‌lawed. For example, numerous issues have
arisen from the courts’ interpretations of this element, such as the
prejudice towards battered women and how such defendants did not
conform to the stereotypical loss of self-control. This inadvertently led to
some obscure decisions when the courts attempted to mitigate this
hardship. Consequently, some reform of the defence is required, but
basing the law on psychology is equally troubling. There is frequently
disagreement surrounding the brain activity which occurs when some-
one is provoked. Furthermore, it would place too much emphasis on the
expert’s evidence, removing the scrutiny process from the jury. Addi-
tionally, adopting a psychological basis is too subjective, as the objective
criteria which are suggested ultimately depend on the individual in
question, and therefore offer no meaningful safeguard as regards usage
of the defence.
It will be submitted that the focus should remain on the rationale of
the defence and that to f‌ind this we must delve back to the times when
provocation was f‌irst allowed as a defence to locate the correct justif‌ica-
tion for its existence.
The association between provocation and diminished responsibility
will also be highlighted as this plays a fundamental part in the reform
proposal. In order to employ a workable system, we must refrain from
incorporating any sort of mental process within the provocation de-
fence, instead leaving these matters to be dealt with by the diminished
responsibility defence.
* LLB, LLM, University of Northumbria; e-mail: ci_morgan@hotmail.co.uk.
1 Most notably by B. J. Mitchell, R. D. Mackay and W. J. Brookbanks, ‘Pleading for
Provoked Killers: In Defence of Morgan Smith’ (2008) 124 LQR 675.
119The Journal of Criminal Law (2013) 77 JCL 119–135
The rationale for provocation and the concept of loss of
To f‌ind the appropriate basis for the provocation defence, it is necessary
to observe why provocation was deemed to be a defence to murder. It is
clear from cases such as Rv Smith2that it was to enable men who felt
that their honour had been violated to avoid a murder conviction3and
is correctly described as a concession to human frailty.4Clearly, it is
inappropriate to revert back to a standard whereby a man could defend
his honour by resorting to killing and not face the full consequences of
his actions, but it is appropriate to re-establish the principle that provo-
cation was designed to evaluate human behaviour with account taken
of the circumstances that the defendant found himself in at the time of
the killing, with the jury at the forefront of the decision to determine the
acceptability of the defendants reaction.
Thus, provocation was designed to accommodate human emotion
and by using this as a framework, a sensible and realistic defence can be
achieved. This will assess whether the defendant has acted in accordance
with modern-day standards and focuses strongly, if not solely, on an
objective comparison of the acts of the defendant with the social views
of the objective citizen, not a hypothetical reasonable man. This would
involve the removal of the requirement to lose self-control. However, it
is submitted that the current state of the loss of self-control concept is
f‌lawed; therefore removal of the requirement would be a positive step.
More importantly, decisions on the provocation defence can be made
correctly by relying solely on an objective test.
A scientif‌ic basis for the loss of self-control concept
In Rv Duffy5the mental processes of the defendant were not really at the
heart of Devlin Js formulation. His use of loss of self-control was not
unqualif‌ied; it required a loss of self-control which [rendered] the
accused so subject to passion as to make him or her for the moment not
master of his mind.6Passion is therefore the main aspect of this
def‌inition in that it is the underlying cause of a loss of self-control and
can be seen as the consistent element of provocation throughout its
development.7It is def‌ined as strong and barely controllable emotion
3Rv Smith (Morgan) [2001] 1 AC 146 at 160, per Lord Slynn of Hadley; see also R v
Mawgridge [1707] Kel J 119 at 1357, per Lord Holt CJ.
4 Mitchell, Mackay and Brookbanks, above n. 1 at 683.
6Rv Duffy [1949] 1 All ER 932 at 932, per Lord Goddard CJ restating Devlin Js
direction to the jury with approval.
7 Law Commission, Partial Defence to Murder: Final Report, Law Com. Report No. 290
(6 August 2004); ibid. Appendix G, A Sociological History of Provocation and
Diminished Responsibility, 302, paras 74 and 75, both available at http://law
commission.justice.gov.uk/publications/partial-defence-to-murder.htm, accessed 14 February
2013. See the cases of R v Oneby (1727) 2 Ld Raym 1485 at 1494, Rv Lynch (1832)
5 C & P 324 at 325, Rv Kirkham (1837) 8 C&P 115 at 117 and Rv Duffy [1949] 1
All ER 932.
The Journal of Criminal Law

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