Loss of control, provocation and the criminal law

Under s 54 of CJA 2009, someone who kills or was party to a killing may be convicted of manslaughter rather than murder if:

• the defendant’s acts and omissions in doing or being a party to the killing resulted from their loss of self-control;
• the loss of self-control had a qualifying trigger; and
• 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.

Unlike the defence of provocation, there is no requirement that the loss of self control be sudden. However, under s 54(4), if the defendant acted out of a desire for revenge, they could not rely on the loss of control defence.

Whether 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 similar way is a question for the jury to decide.

The jury must decide whether a relevant person might have reacted in the same or similar way, rather than whether the provocation would have made a reasonable man do as the defendant did, as was required under the previous law.

According to s 55 of CJA 2009, a loss of self control is said to have a qualifying trigger if any of the following two events, or a combination of both, occur:

• the defendant’s loss of self control was attributable to the defendant’s fear of serious violence against him or another party;
• the defendant’s loss of self control was attributable to things done or said which:
  • constituted circumstances of an extremely grave character;
  • caused the defendant to have a justifiable sense of feeling wronged.

When establishing if there was a qualifying trigger, the defendant’s fear of serious violence must be disregarded if it was caused by an event with the defendant incited and is simply being used as an excuse for the act.

Similarly, a sense of being seriously wronged by a thing done or said will not be justifiable if the defendant incited the thing to be done or said and is simply using it as an excuse to use violence.

The test of what constitutes circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged is an objective one (R v Hatter (2013)).

Under s 55(6)(a), if the thing done or said constituted sexual infidelity, this will be disregarded in establishing a qualifying trigger for the violence.

The standard of proof required for loss of control is beyond a reasonable doubt. That is if sufficient evidence is adduced to raise an issue of the defence being satisfied, the prosecution must prove beyond a reasonable doubt that the defendant was not suffering from a loss of self control.

If there is more than one party to the killing each party’s case will be judged on its own facts. If one of the defendants is able to successfully plead the defence of loss of control being convicted of manslaughter it does not affect the case of the other defendants who can still be charged with murder.