LAW03: Criminal Law (Offences against the Person).

The defence of loss of control replaced the

old defence of provocation and if it is
successful the D will be found guilty of
manslaughter and not murder.

The defence is set out in s. 54 Coroners

and Justice Act 2009.
"(1) Where a person kills or is party to the killing of another, D is not
to be convicted of murder if –

a) D's acts and omissions in doing or being party to the killing

resulted from D's loss of self-control;

b) The loss of self-control had a qualifying trigger, and;

c) A person of D's sex and age, with a normal degree of tolerance

and self restraint and in the circumstances of D, might have
reacted in the same or in a similar way to D."
It must be proved that the D had lost his self-control
when doing the acts which caused the death.
The loss of self-control does not need to be sudden.
This means there could be a time delay between the
qualifying trigger and the D's reaction in killing the V.
This was not the case in the old defence of
provocation.
 As there no longer needs to be
a sudden loss of control it is
possible that Ds in situations
like the one in Ahluwalia would
be able to use the defence of
loss of control.
The D had been physically
abused by her husband for
years. One night, after he had
threatened her with violence,
D poured petrol over him and
set him alight. He died 6 days
later.
D was convicted of murder
and appealed. The appeal,
based on provocation, failed
because the D's reaction to
his behaviour was not sudden.
The loss of self-control must be as a result of a
qualifying trigger.

s. 55 Coroners and Justice Act 2009 sets out the

qualifying triggers.
s. 55(3): D fears serious violence from the V against himself or another identified person.

s. 55(4): a thing or things done or said (or both) which –

a) Constituted circumstances of an extremely grave character; and

b) Caused D to have a justifiable sense of being seriously wronged.

s. 55(5): the qualifying trigger can also be a combination of both these things.
 The old law of provocation didn't allow a defence if the D lost
control through a fear of violence, as shown in the case of Martin
(Anthony) (2002).
Battered wives, such as Ahluwalia, could also be able to use the
defence if they are in fear of serious violence from their partners.
The D does not have to just fear violence from the V. The fear
could from another person as long as that other person is
identified. A general fear of violence from a situation is not
enough to satisfy the defence.
 If the D is relying on things said or done as a qualifying trigger 2
criteria must also be met:

1. The things said or done must be of an extremely grave

character; and

2. They must have caused the D to have a justifiable sense of being

seriously wronged.
The introduction of these criteria make this defence much
more restrictive than the old defence of provocation. Many
situations that did qualify under the old defence would
now not satisfy the defence of loss of control.
For example, in Doughty, the D killed his 19 day old son
because the child would not stop crying and he was
allowed a defence of provocation because of 'things done'.
Under the new defence it would be difficult for Doughty to
prove that he had a 'justifiable sense of being seriously
wronged' and the the defence would fail.
 This case confirmed that in order
for things said and things done to
be a qualifying trigger they must
constitute circumstances of an
extremely grave character and the
D must have a justifiable sense of
being seriously wronged.
D's 94 year old father
suffered from
Alzheimer's disease and
was also incontinent. D
lost control and killed
him after he repeatedly
soiled himself.
The D's defence of loss of
control was not allowed.
 The Act specifically states that sexual infidelity alone can never be a
qualifying trigger for loss of control.
The Government felt that the old law allowed a defence for jealous men
that killed their wives and girlfriends because they were having an affair
and that this was no longer acceptable.

But, sexual infidelity can be considered if it is integral to and forms an

essential part of the context where there are other factors which could
be qualifying triggers.
Although sexual infidelity alone
cannot satisfy a defence of loss
of control the CA stated it could
be taken into consideration
when there were other factors
that amounted to qualifying
triggers.
D suffered from depression
and was on medication. The
day before he killed his wife
she told the D she was having
an affair and had also taunted
him about visiting suicide
websites saying he didn't
have the courage to kill
himself. They argued and D
killed her.
D was convicted but his
appeal was allowed.
The Coroners and Justice Act 2009 will also not allow a
defence of loss of control if the D has acted in a
considered desire for revenge.

So, if the D has time to consider (plan) revenge the

defence will not be available.
 The gap of 5 days between the V's
last 'provocative act' and the killing
meant that the Ds had time to
consider revenge against him.
This was not a defence at the time
and would certainly not be allowed
as a defence under the defence of
loss of control.
The ex-boyfriend (V) of
Ibrams' current girlfriend
had been visiting their flat
and terrorising them. On
the 7th October Ibrams
called the police, who did
nothing. On 10th October
the Ds made a plan to
attack V and carried it out
and killed V on 12th
October.
In the case of Baillie the D loses his control and acts with an
element of a desire for revenge. His loss of control is
sudden and technically his desire for revenge is not
'considered' as he has had no time to plan it.

Under the Coroners and Justice Act 2009 it is unclear if this

type of situation would satisfy the defence of loss of control
as there is an element of revenge … but is it considered?
The Coroners and Justice Act 2009 requires that no matter which qualifying
trigger is relied upon …

" … a person of D's sex and age, with a normal degree of tolerance and
self-restraint and in the circumstances of D, might have reacted in the
same or similar way."

This is similar to the old law and the decision in the case of Camplin (1978).
 In the judgement of the HL Lord Diplock stated:

"The reasonable man is a person having the

power of self-control to be expected of an
ordinary person of the sex and age of the
accused, but in other respects sharing such of the
accused's characteristics as they think would
affect the gravity of the provocation to him."

This was confirmed in the Privy Council case of A-

G for Jersey v Holley (2005).
 The Coroners and Justice Act 2009 put this decision in
Camplin into statutory form. So, the fact that the D is
particularly hot-tempered is irrelevant when looking at the
level of self-control expected.

In short … when deciding if the reasonable man would also

have lost their self-control only the sex and age of the D are
relevant characteristics that can be transferred to the
reasonable man.
However, when deciding if such a 'normal'
person would have reacted in the same or
similar way to the D ANY relevant
characteristics of the D can be taken into
consideration and transferred onto the
reasonable man.
Under the Coroners and Justice Act
2009 the D's unemployment,
depression and epilepsy would all
be relevant characteristics that
could be transferred to the
reasonable man to determine
whether he would have reacted in
the same or similar way to the D.
The D was unemployed and
suffered from depression
and epilepsy. The V taunted
D about his unemployment,
depression and epilepsy. D
lost control and killed V.
The evidence showed that
the D was more sensitive to
the taunts about his
unemployment than
anything else.
 In this case the 'normal'
person would have to have
had a history of sexual abuse
in deciding whether or not
they would have reacted in
the same or in a similar way
to the D.
The D had been
sexually abused as a
child. The V tried to
sexually assault D
and D lost control
and killed V.
Voluntary intoxication is not a relevant
characteristic when it comes to
deciding if the reasonable man would
have reacted in the same or similar way
to the D (Asmelash (2013)).
Once the relevant characteristics have been identified the jury
must consider whether a normal person in the circumstances of
the D would have reacted as the D did.

The defence will fail if the jury thinks the normal person would
have lost control but would not have reacted in the same way.
The case of Van Dongen (2005) is an example of this.