Criminal Essay on the Loss of Control as a Defence to Murder

The following is my own work, and no AI has been used in its making.

Extracted from a Word Document.

'Critically examine the application of loss of control as a criminal defence. In your

answer consider whether it is an effective defence in modern criminal law. Refer to

both primary and secondary sources in your answer'

Introduction

This question requires an examination of the effectiveness of loss of control. How effectiveness might be measured is the qualitative changes from failures of the past; the loss of control defence came into being with the Coroners and Justice Act 2009, replacing the old common law defence of provocation.[1] This essay supports its effectiveness as a modern criminal defence, arguing the old law of provocation was necessarily ended and that loss of control improves on it, though inherent issues remain. Reforms must go further.

An Improvement From Its Predecessor?

Provocation’s end came after decades of legal miasma and confusion about whether defendants afflicted with conditions affecting self-control should be judged by a general standard, or by a standard of a reasonable person with their own condition, with confusion further unaided by the fact leeway regarding a defendant’s mental condition overlapped with diminished responsibility.[2] In this light, loss of control evidently made structured improvements to the defence. The 2009 Act removed the requirement for a ‘sudden and temporary’ loss of control.[3] This was a development which seems a necessary one, as it had the controversial effect of negating the impact of a continued relationship of abuse, particularly within a domestic context, as evidenced in R v Ahluwalia, where, after years of violent abuse from her husband, Ahluwalia lit her husband on fire. Part of her defence was that she was provoked after years of abuse; however, the courts dismissed her provocation defence due to the ‘sudden and temporary’ requirement.[4] The change that came with the statutory loss of control has, therefore, been a much welcomed one,[5] with there now being the acknowledgement that reactions to extremely grave acts may be slowed.[6] However, serious criticism exists that the law, because it is not a wholly different nor reformed one from the old law, still fails many domestic abuse victims. The 2009 Act bars revenge from loss of control,[7] but it is not a caring piece of legislation when all forms of pre-meditation are non-applicable; analysis by Alan Reed and Michael Bohlander argues many female victims of domestic abuse instinctively realise they cannot afford immediate confrontation with their spouse, so they wait until the spouse is off-guard,[8]as in Ahluwalia. Pre-meditation, therefore, should be given some regard.

Nevertheless, loss of control has been shown to draw a sensible line that was absent from provocation, strengthening the evidence for its effectiveness. In R v Doughty, the defendant killed his infant son and successfully argued his excessive tiredness from the baby’s crying was a provocative act.[9] By contrast, in R v Zebedee, the defendant unsuccessfully argued that his elderly father, who suffered from Alzheimer’s and incontinence, constituted a qualifying trigger for loss of control.[10] The former judgment is open to wide criticism; provocation was given too wide a scope. Indeed, on its third limb, the law requires the defendant have a normal level of tolerance and self-restraint.[11] This wording resurrects the same debate which obfuscated provocation; by what standard must a defendant be judged: of the normal standard with the defendant’s condition or of a universal standard? Loss of control gives an unequivocal answer: a blanket normal level of tolerance and self-restraint, only limited by the sex and age of the defendant.[12] Contrasted to the previous standard of the ‘reasonable man’ under the Homicide Act 1957,[13] this wording takes into account limited reasonable characteristics and expanding the ‘reasonable man’ more clearly to that of a normal tolerance and restraint;[14] if a defendant suffers from a mental condition, they can avail of diminished responsibility.[15]

Sexual Infidelity & Fear

Somewhat unusually, the law makes clear that sexual infidelity is not a qualifying trigger,[16] with the understandable goal of ensuring a jury does not become overly sympathetic towards the defendant because of the victim’s unfaithfulness.[17] However noble a goal, its ability to protect women has been robustly challenged. Shortly after the defence’s creation, the sexual infidelity clause was put to the test in the Clinton Case, where a man had found his wife had sex with five different men. She began taunting him about it and about his suicidal thoughts, leading him to kill her. The Court of Appeal concluded sexual infidelity could be considered as part of a wider background of other qualifying triggers —although not in cases of pure sexual infidelity being the cause.[18] The framing within the judgment appears to create sympathy for the defendant. Anna Carline argues this framing of the defendant as a ‘forlorn individual’ deeply hurt by his wife’s affair seeks to undermine the expressly forbidden use of sexual infidelity as a qualifying trigger.[19] This undermining is vindicated in the judgment, where the sexual infidelity’s gravity was ultimately considered. There exists a serious criticism which, perhaps, suggests that the eternal failure of the old law of provocation to protect vulnerable women from their husbands did not totally die in its abolition and continues in the defence of loss of control.

Loss of control does not inherently lend itself easily to any emotion other than anger, as it is commonly understood to be a rageful emotion often leading to violent reaction.[20] This deepens the mistreatment of female victims by their husbands. Despite this, the 2009 Act aided women by allowing for a ‘fear of serious violence’ clause and with the removal of the ‘sudden and temporary’ requirement,[21] which was innately linked to anger. Additionally, R v Jewell provides a definition of loss of control that does not disqualify fear; it is the ‘loss of the ability to act in accordance with considered judgment or a loss of normal powers of reasoning’.[22] Although a positive development, issues remain; the bar of evidence for fear under the 2009 Act requires fear of ‘serious violence’ as opposed to the broader requirement under anger of an ‘extremely grave character’ and ‘justifiable sense of being seriously wronged’. A requirement of serious violence implies a high bar of proof that the victim did not overreact and use excessive force, whereas —to anger— the defence may be more fluid, with a lower bar of evidentiality. This point illuminates some of the irreconcilably inherent problems to do with loss of control, such as legitimising honour-based concepts in law, inherited from provocation.[23]

Conclusion

What defined the old law was a confused attempt to give a necessary defence for the nuanced crime of murder. It provided easier succour to the male inclination towards anger than the often fear-based killing of an abused wife. The statutory definition retired this beaten system, and this is the context in which its benefits and drawbacks must be viewed. Loss of control narrowed the definition, trimmed overlap with diminished responsibility, removed the much criticised ‘sudden and temporary’ provision, replaced the ‘reasonable man’ with the better-defined person of normal ‘tolerance and self-restraint’, and aided women by providing the fear of serious violence provision and the barring of sexual infidelity as a qualifying trigger. Its effectiveness has been questioned, and its resolve to sensibly narrow its application —like in the Zebedee Case— has been equally challenged by its inability to disapply some of its inherent prejudices —like in the Clinton Case. Ultimately, it seems loss of control has the potential to provide a fair defence, even if it is lacking in that fulfilment. This essay hopes reform can go further in this area, so loss of control’s serious strengths can used to their fullest potential.

 

Bibliography

Legislation

Coroners and Justice Act 2009

Homicide Act 1957

Cases

R v Ahluwalia [1992] EWCA Crim 1; (1993) 96 Cr App R 133

R v Clinton [2012] EWCA Crim 2

R v Dawes [2013] EWCA Crim 322

R v Doughty [1986] EWCA Crim J0523-18; (1986) 83 Cr App R 319

R v Jewell [2014] EWCA Crim 414

R v Zebedee [2012] EWCA Crim 1320; [2013] 1 Cr App R (S) 37

Books

Clough A, Loss of Self-Control as a Defence: The Key to Replacing Provocation (Routledge 2015)

Reed A and Bohlander M (eds), Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate 2011)

Chapters in Edited Collections

Carline A, ‘Critical Perspectives on the Partial Defence of Loss of Control: Justice for Women?’ in Rachel M McPherson (ed), Women Who Kill, Criminal Law and Domestic Abuse (Routledge 2023)

Edwards SSM, ‘Loss of Self-Control: When His Anger Is Worth More than Her Fear’ in Alan Reed and Michael Bohlander (eds), Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate 2011)

Journal Articles

Bix B, ‘H L A Hart and the “Open Texture” of Language’ (1991) 10 Law and Philosophy 51

Edwards SSM, ‘Anger and Fear as Justifiable Preludes for Loss of Self-Control’ (2010) 74 Journal of Criminal Law 223

Parsons S, ‘The Loss of Control Defence—Fit for Purpose?’ (2015) 79 Journal of Criminal Law 94

Williams GW, ‘Duress and Loss of Control: Fear and Anger in Excusatory Defences’ (2020) 71(3) Northern Ireland Legal Quarterly 401

Government Publications

Ministry of Justice, Murder, Manslaughter and Infanticide: Proposals for Reform of the Law (Consultation Paper CP19/08, 2008)

[1] Coroners and Justice Act 2009 s 56

[2] S Parsons, ‘The Loss of Control Defence—Fit for Purpose?’ (2015) 79 Journal of Criminal Law 94, 99–100

[3] SSM Edwards, ‘Anger and Fear as Justifiable Preludes for Loss of Self‑Control’ (2010) 74 Journal of Criminal Law 223, 224–25

[4] [1992] EWCA Crim 1 (96 Cr App R 133, 133)

[5] A Clough, Loss of Self-Control as a Defence: The Key to Replacing Provocation (2010) 74 Journal of Criminal Law 118, 123–24

[6] R v Dawes [2013] EWCA Crim 322, [54]

[7] Coroners and Justice Act 2009 s 54(4)

[8] A Reed and M Bohlander (eds), Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Ashgate Publishing 2011) 42, 49–50

[9] R v Doughty [1986] EWCA Crim J0523‑18 (83 Cr App R 319, 320, 327)

[10] R v Zebedee [2012] EWCA Crim 1428, [1]–[3]

[11] Coroners and Justice Act 2009 s 54(1)(c)

[12] Parsons (n 4) 100

[13] Homicide Act 1957 s 3

[14] Clough (n 7) 124

[15] Homicide Act 1957 s 2(1)

[16] Coroners and Justice Act 2009 s 55(6)(c)

[17] Ministry of Justice, Murder, Manslaughter and Infanticide: Proposals for Reform of the Law (Consultation Paper CP19/08, 2008) para 32

[18] R v Clinton [2012] EWCA Crim 2, [39]

[19] Anna Carline, ‘Critical perspectives on the partial defence of loss of control: Justice for women?’ in Rachel M McPherson (ed), Women Who Kill, Criminal Law and Domestic Abuse (Routledge 2023) 51, 55

[20] Edwards (n 5) 228

[21] Coroners and Justice Act 2009 s 55(3)

[22] [2014] EWCA Crim 414, [23]–[24]

[23] Williams GW, ‘Duress and loss of control: fear and anger in excusatory defences’ (2020) 71(3) Northern Ireland Legal Quarterly 401–428, 413, 426, 428