Loss of control

Key elements of the defence

  1. A loss of self control
  2. A qualifying trigger
  3. A "normal person" test

Section 54, Coroners & Justice Act 2009

Where a person [D] kills or is a party to the killing of another [V], D is not to be convicted of murder if:
(a) D's acts and omissions in doing or being a 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 similar way to D.

Procedural aspects

  • Only available as a partial defence to murder (s.54(1))
  • The defence must first adduce 'sufficient evidence' (s.54(5))
  • Burden of proof is on the prosecution to disprove the defence beyond a reasonable doubt (s.54(5))
  • If successful, results in a conviction of manslaughter

'Sufficient evidence'

Whether evidence is sufficient is a question of law

  • R v Clinton (2012): "If there is evidence on which the jury could reasonably conclude that the loss of control defence might apply, it must be left to the jury"

Sufficient evidence of what exactly?

R v Clinton (2012): "There must be sufficient evidence to establish each of the ingredients defined in s.54(1)(a)(b)(c)"

1. Loss of self control

R v Clinton (2012): "S.54(1)(a) is self explanatory. The killing must have resulted from the loss of self-control. The loss of self control need not be sudden, but it must have been lost. That is essential."

Revenge killings

There is no defence if D acted in a 'considered desire for revenge (s.54(4))

2. A qualifying trigger

There are two types of triggers, one or both must exist

Section 55(3): The fear trigger- applies if D's loss of self-control was attributable to a 'fear of serious violence from V against D or another person.'

  • R v Ward (2012)
  • R v Lodge (2014)

Section 55(4): The anger trigger-applies if D's loss of self-control was attributable to 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

  • R v Clinton (2012)

"Cumulative impact" - R v Dawes (2013): " The loss of self control may follow from the cumulative impact of earlier events"

Both triggers together- S.55(5) allows for both triggers to operate together . R v Dawes (2013): In most cases the trigger based on a fear of violence will almost inevitably include consideration of things said and done, in sort, a combination of the features identified in s.55(3) and (4)

Sexual infidelity- R v Clinton (2012): Sexual infidelity cannot, on its own, qualify as a trigger [but] where sexual infidelity is integral to and forms an essential part of the context, the prohibition in s.55(6)(c) does not operate to exclude it"

Restrictions: s.55(6)(a) and (b): If either trigger is self inflicted, i.e. if D 'incited' something to be done or said 'for the purpose of providing an excuse to use violence', then it is to be disregarded (s.55(6)(a) and s.55(6)(b)

Restrictions: s.55(6)(c): ' The fact that a thing done or said constituted sexual infidelity is to be disregarded' (would apply to trigger 2)
Ministry of Justice (July 2008):"It is quite unacceptable for [D] who has killed an unfaithful partner to seek blame [V] for what occurred."

3. The normal person test

  • D's reaction must be compared to that of a normal person of the same sex and age
  • By a normal person we mean a person with a 'normal degree of tolerance'. This means that irrational prejudices such as racism and homophobia are excluded
  • A normal person has a 'normal degree of self restraint'

s.54(3) provides that the reference to the 'circumstances' means all of D's circumstances other than those whose only relevance is that they bear on D's general capacity for tolerance or self-restraint-excludes intoxication

R v Rejmanski: R v Gassman (2017): "If a mental disorder has a relevance to D's conduct other than a bearing on his general capacity for tolerance and self restraint, it is not excluded by s.54(3), and the jury will be entitled to take it into account as one of [D's] circumstances."