Homicide offences - Partial defences: loss of control

Learning Outcomes

This article explains the partial defence of loss of control as established by the Coroners and Justice Act 2009, which can reduce a murder conviction to voluntary manslaughter. It outlines the three components required for the defence: the defendant's loss of self-control, the presence of a qualifying trigger, and the objective standard of reaction expected from a person with similar characteristics. You will learn to identify the qualifying triggers (fear of serious violence or justifiable sense of being seriously wronged) and the exclusions, such as the 'considered desire for revenge' or sexual infidelity alone. This knowledge is essential for applying the relevant legal principles in SQE1 scenarios.

SQE1 Syllabus

For SQE1, candidates are required to understand the partial defences to murder, specifically loss of control. This involves applying the statutory framework provided by the Coroners and Justice Act 2009 to factual scenarios. Key areas for revision include:

• The three components of the loss of control defence (loss of self-control, qualifying trigger, objective test).
• The definition and application of the two qualifying triggers: fear of serious violence and things said or done constituting circumstances of an extremely grave character causing a justifiable sense of being seriously wronged.
• Exclusions to the defence, such as the 'considered desire for revenge' and the specific rules regarding sexual infidelity.
• The objective test: how a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint, might have reacted in the circumstances.
• The burden and standard of proof relating to the loss of control defence.
• The effect of successfully raising the defence (reduction from murder to voluntary manslaughter).

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

1. Which statute introduced the partial defence of loss of control, replacing the common law defence of provocation?
   1. Homicide Act 1957
   2. Theft Act 1968
   3. Coroners and Justice Act 2009
   4. Criminal Justice Act 2003
2. Which of the following is NOT a required element for the loss of control defence?
   1. The defendant must have actually lost self-control.
   2. The loss of self-control must have been sudden.
   3. There must have been a qualifying trigger.
   4. A person of the defendant's sex and age, with normal tolerance and self-restraint, might have reacted similarly.
3. Can sexual infidelity, on its own, be a qualifying trigger for the loss of control defence?
   1. Yes, always.
   2. Yes, but only if the infidelity was extreme.
   3. No, it is specifically excluded as a sole trigger.
   4. No, unless it caused the defendant to fear serious violence.

Introduction

When a defendant is charged with murder, the law recognises that certain circumstances surrounding the killing may reduce the defendant's culpability, even if the actus reus (unlawful killing) and mens rea (intention to kill or cause grievous bodily harm (GBH)) are established. Loss of control is one such partial defence, provided under ss 54–55 of the Coroners and Justice Act (CJA) 2009. This defence replaced the common law defence of provocation. If successfully pleaded, it reduces the conviction from murder to voluntary manslaughter, allowing the judge sentencing discretion rather than imposing the mandatory life sentence for murder.

Key Term: Partial Defence A defence that, if successfully raised, reduces criminal liability from a more serious offence (like murder) to a lesser offence (like voluntary manslaughter), but does not result in a complete acquittal.

Key Term: Voluntary Manslaughter An unlawful killing committed with the mens rea for murder, but where the defendant successfully pleads a partial defence such as loss of control or diminished responsibility.

Understanding the precise requirements and limitations of the loss of control defence is essential for SQE1. The defence involves a three-stage test, and failure to satisfy any part will mean the defence fails.

The Legal Framework: CJA 2009

The Coroners and Justice Act 2009 abolished the common law defence of provocation (s 54(4)) and established the statutory defence of loss of control. The defence is outlined in s 54, with the qualifying triggers detailed in s 55.

The Three Components of Loss of Control

Section 54(1) CJA 2009 sets out the three limbs that must all be met for the defence to succeed:

1. The defendant’s acts or omissions in doing or being a party to the killing resulted from the defendant’s loss of self-control (s 54(1)(a)).
2. The loss of self-control had a qualifying trigger (s 54(1)(b)).
3. 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 (s 54(1)(c)).

Burden and Standard of Proof

Unlike diminished responsibility, the defendant only bears an evidential burden to raise the issue of loss of control (s 54(5)). This means the defendant must adduce sufficient evidence upon which a jury, properly directed, could reasonably conclude the defence might apply. Once this evidential threshold is met, the legal burden shifts to the prosecution to disprove the defence beyond reasonable doubt (s 54(5)). If the prosecution fails to disprove any of the three limbs, the defence succeeds.

Component 1: Loss of Self-Control

The first requirement is that the defendant actually lost their self-control. This is a subjective question focusing on the defendant's state of mind at the time of the killing.

Key Term: Loss of Self-Control A state where the defendant is unable to restrain themselves, potentially due to extreme anger, fear, or panic, leading them to act in a way inconsistent with considered judgment.

A key change from the old law of provocation is that the loss of self-control does not need to be sudden (s 54(2)). This acknowledges that loss of control can result from a slow burn of events, particularly relevant in cases involving long-term abuse (often referred to as 'battered person syndrome'). However, a significant delay between the trigger and the killing might still suggest a planned attack motivated by revenge, rather than a genuine loss of control.

Exclusion: Considered Desire for Revenge

Section 54(4) explicitly states that the defence is not available if the defendant acted in a 'considered desire for revenge'. Evidence of planning or significant delay can point towards revenge rather than a loss of control.

Worked Example 1.1

David discovers his partner has been having an affair. He calmly waits for three days, purchases a weapon, and then kills his partner. Can David rely on loss of control?

Answer: Likely no. The three-day delay and the act of purchasing a weapon strongly suggest a considered desire for revenge, which is explicitly excluded under s 54(4) CJA 2009. The loss of control was not the operating factor at the time of the killing.

Component 2: Qualifying Trigger

The loss of self-control must have been caused by a 'qualifying trigger' as defined in s 55 CJA 2009. There are two possible triggers, or a combination of both (s 55(5)).

Fear Trigger: Fear of Serious Violence (s 55(3))

The defendant lost self-control due to a fear of serious violence from the victim (V) against the defendant (D) or another identified person.

• The fear must be of serious violence. Fear of minor violence is insufficient.
• The fear must be genuine, although it does not need to be reasonable. A mistaken belief can suffice if genuinely held.
• The violence feared must be from the victim (V).
• This trigger is aimed particularly at situations involving self-defence where excessive force might have been used, or in contexts of domestic abuse where the defendant acts preemptively out of fear.

Anger Trigger: Things Said or Done (s 55(4))

The defendant lost self-control due to things said or done (or both) which:

(a) constituted circumstances of an extremely grave character; AND
(b) caused D to have a justifiable sense of being seriously wronged.

Key Term: Qualifying Trigger A specific circumstance defined by statute (fear of serious violence or exceptionally provoking words/acts) that must be present to potentially excuse a loss of self-control leading to killing.

• Extremely Grave Character: This is an objective assessment. Trivial matters or ordinary life stresses are unlikely to qualify. The circumstances must be highly unusual and significantly provocative.
• Justifiable Sense of Being Seriously Wronged: This also involves an objective element. Would a reasonable person consider the sense of wrong to be justifiable in the context? Personal prejudices or unusual sensitivities are unlikely to render the sense of wrong justifiable.

Exclusions to Qualifying Triggers

Section 55(6) specifies circumstances that cannot qualify as triggers:

(a) Incitement (s 55(6)(a), (b)): D cannot rely on fear of violence if D incited the violence merely to provide an excuse to use violence. Similarly, D cannot rely on a sense of being seriously wronged if D incited the thing said or done merely as an excuse.
(b) Sexual Infidelity (s 55(6)(c)): The fact that a thing done or said constituted sexual infidelity is to be disregarded.

Exam Warning

Sexual infidelity alone cannot be a qualifying trigger. However, the courts (R v Clinton) have held that it does not need to be entirely disregarded if it forms part of the essential context in which other potentially qualifying things were said or done. For example, if infidelity is revealed alongside other grave insults or taunts, the infidelity can be considered as part of the overall circumstances affecting the gravity and the defendant’s sense of being wronged.

Worked Example 1.2

Anna has been subjected to years of physical and emotional abuse by her partner, Ben. One evening, Ben threatens to kill her and starts approaching her aggressively. Anna, fearing for her life, grabs a nearby lamp and strikes Ben, killing him. Which qualifying trigger might apply?

Answer: The fear trigger (s 55(3)) is most relevant. Anna's loss of self-control appears attributable to her genuine fear of serious violence from Ben, based on his threat and aggressive approach, particularly in the context of past abuse.

Component 3: The Objective Test

The final limb requires that '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' (s 54(1)(c)).

This objective test acts as a critical check, ensuring that the defendant's reaction, even if resulting from a genuine loss of control due to a qualifying trigger, aligns with societal standards of behaviour.

• Sex and Age: These are the only characteristics explicitly mentioned that can modify the standard of the 'normal person'.
• Normal Degree of Tolerance and Self-Restraint: The defendant is judged against a standard of normalcy. Characteristics like short temper, unusual aggression, or intoxication are disregarded if they only bear on the defendant's general capacity for tolerance and self-restraint (s 54(3)).
• In the Circumstances of D: This allows relevant circumstances to be considered, but only those that relate to the gravity of the qualifying trigger, not those affecting the defendant's general capacity for self-control. For example, a history of abuse (relevant to the gravity of a threat) could be considered, but voluntary intoxication at the time of the killing would not be (R v Asmelash).

Revision Tip

Focus on distinguishing which circumstances are relevant to the gravity of the trigger (and thus considered by the objective test) versus those that only affect the defendant's general capacity for self-control (and are excluded).

Key Point Checklist

This article has covered the following key knowledge points:

• Loss of control is a partial defence specific to murder, reducing the conviction to voluntary manslaughter (CJA 2009, s 54).
• The defendant bears an evidential burden; the prosecution must disprove the defence beyond reasonable doubt once raised.
• The three essential components are: (1) actual loss of self-control by the defendant, (2) resulting from a qualifying trigger, and (3) an objective test concerning how a normal person might have reacted.
• Loss of self-control does not need to be sudden.
• Acting out of a considered desire for revenge negates the defence.
• Qualifying triggers are: (a) fear of serious violence from V against D or another, OR (b) things said/done of an extremely grave character causing D a justifiable sense of being seriously wronged.
• Incitement by D prevents reliance on the triggers.
• Sexual infidelity alone cannot be a qualifying trigger but may be relevant contextually.
• The objective test considers a person of D's sex and age with normal tolerance/self-restraint in D's circumstances (excluding circumstances only relevant to general self-control capacity, like intoxication).

Key Terms and Concepts

• Partial Defence
• Voluntary Manslaughter
• Loss of Self-Control
• Qualifying Trigger