The Loss of Control Defence—Fit for Purpose?
| Author | Simon Parsons |
| DOI | 10.1177/0022018315574819 |
| Published date | 01 April 2015 |
| Date | 01 April 2015 |
| Subject Matter | Comment |
Comment
The Loss of Control
Defence—Fit for Purpose?
Simon Parsons
Southampton Solent University, Southampton, Hampshire, UK
Abstract
This article examines the case law on the loss of control defence and considers whether the
interpretation of the defence has been too conservative so that the defence is barely available
as a defence to murder.
Keywords
Loss of control, anger trigger, sexual infidelity, normal capacity of self-restraint and tolerance
Under ss 54–56 of the Coroners and Justice Act 2009 (the Act), the defence of provocation was abolished
(with effect from Monday 4 October 2010) and replaced by a new partial defence to murder involving
loss of control. The loss of control defence is partial because if successful the defendant will be con-
victed of manslaughter, thus avoiding the mandatory life sentence for murder and giving the judge dis-
cretion as to sentence. The partial defence of loss of control has three essential elements. First, the killing
must have been the consequence of a loss of self-control, but the killing must not have been the result of a
considered desire for revenge. Secondly, the loss of self-control must be linked to a qualifying trigger,
being attributable either to the defendant’s fear of serious violence (the fear trigger), or to things done or
said which constituted circumstances of an extremely grave character and which caused the defendant to
have a justifiable sense of being seriously wronged (the anger trigger), or to both. But the defendant’s
fear of serious violence or sense of being wronged should be ignored to the extent that it was self-
induced, and the fact that a thing done or said constituted sexual infidelity is also to be disregarded.
Thirdly, there must be evidence that a person of the defendant’s sex and age, with a normal degree of
tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same
or in a similar way to the defendant (the objective standard). The judge must be satisfied that there is
sufficient evidence to raise each of the three elements, the prosecution then having the burden to con-
vince the jury beyond reasonable doubt that one or more is not present.
This article will examine judicial interpretation of these rather complex and, at times, badly drafted
provisions. The reported cases concern loss of control, the anger trigger and the objective standard.
It will be shown that in most respects there has been a conservative interpretation of the loss of
control provisions by the former Lord Chief Justice Lord Judge, thus restricting the availability of
Corresponding author:
Simon Parsons, Southampton Solent University, Southampton, Hampshire SO14 0YN, UK.
E-mail: simon.parsons@solent.ac.uk
The Journal of Criminal Law
2015, Vol. 79(2) 94–101
ªThe Author(s) 2015
Reprints and permissions:
sagepub.co.uk/journalsPermissions.nav
DOI: 10.1177/0022018315574819
clj.sagepub.com
To continue reading
Request your trial