If a prosecution can prove that a defendant had the necessary actus reus and mens rea for a murder conviction, that defendant may attempt to rely on one of three defences: diminished responsibility, loss of self-control or killing in the pursuance of a suicide pact (not discussed). If one of these partial defences to murder can be successfully relied upon, the defendant’s conviction for murder will be substituted with one of voluntary manslaughter. These partial defences exist primarily as a way to mitigate the mandatory life sentences required to be imposed upon murderers.
This defence will be further explored in a later section. It is sufficient here to note that section 52 of the Coroners and Justice Act 2009 substituted the partial defence to murder of diminished responsibility into section 2 of the Homicide Act 1957. It is the partial defence ‘equivalent’ of insanity, which is a complete defence to murder. The legal burden is on the defendant to prove that he had an abnormality of mental functioning which arose from a recognised medical condition. This abnormality must have impaired the defendant’s ability to understand the nature of his conduct; affected his judgment or affected his self-control. The rationale behind the defence is usually recognised as good, as it directly relates to issues which can affect a defendant’s mental functions, however it is criticised for not connecting medical terminology with the terminology presented to juries.
Loss of self-control
Loss of self-control is the modern equivalent of the now abolished partial defence of provocation. Section 54 of the Coroners and Justice Act 2009 substituted the partial defence into section 3 of the Homicide Act 1957.
The rationale behind the old provocation defence was that killing is hot blood was undeserving of the murder label. Often seen as allowing a jury to be compassionate about human infirmity, theorists such as Wells perhaps correctly noted that anger should never be condoned over self-restraint. There were three issues with the defence. Firstly, the slightest provocation would allow a defendant to raise the defence, even where perhaps inappropriate, in cases such R v Doubty . Secondly, provocation did not cater for case of long-term abuse, such as R v Ahluwalia . Finally, the defence made heavy use of the reasonable man test, which became dubious over time as the reasonable man started to be assigned unreasonable characteristics, such as in R v Smith , where the jury were asked to apply the reasonable man test to a defendant who was both depressed and an alcoholic.
The new defence
There are three elements to the new defence of loss of self-control: there must be: a loss of self-control; a qualifying trigger which caused the loss of self-control, and an objective test requiring a jury to find the loss of self-control to be reasonable.
Actual loss of self-control
Section 54(1)(a) of the Coroners and Justice Act 2009 provides that in order to raise the defence, where must have been a ‘loss of self-control’. A defendant may raise the defence subject to an evidential burden, or a judge may raise the defence with no such burden. In either eventuality, according to R v Clinton , this subsection requires a judge to decide whether the defence can be raised or not, as opposed to provocation, where the defence could almost always be raised. The Law Commission’s suggestion advocated removing this requirement and relying on the proceeding two.
The judge must also decide objectively whether there was a qualifying trigger upon which the defence can be put to the jury. There are three qualifying triggers listed in the 2009 legislation.
The first trigger is set out in section 55(3): a fear of serious violence to either the defendant or another person. R v Dawes  suggested that the defendant should always attempt to raise the complete defence of self-defence, allowing the judge to substitute loss of self-control if that defence fails. Self-defence does require proportionate force to be delivered however, which could be a reason why the judge substitutes the loss of self-control defence. This trigger recognises that fear is a more acceptable trigger than anger for a defendant to act upon.
The second trigger is set out in section 55(4): things said or done of an extremely grave character which caused the defendant to have a justifiable sense of being seriously wronged. R v Clinton  recognised that this trigger had raised the bar over the provocation defence with the words ‘extremely’ and ‘seriously’. R v Dawes  distinguished the new offence as filtering out provocation’s trivial and irritable causes. Over a prolonged time gap between the thing said or done and the cause of death, the sense of ‘serious wrong’ will likely fade. Section 55(6)(c) omits sexual infidelity as the ‘thing said or done’. The legislation does not define sexual infidelity, but R v Clinton  provides some guidance, in that a report of sexual infidelity is enough to prevent the trigger’s use, but if that sexual infidelity was part of a wider circumstance whose omission would prevent the jury from being told the whole story, or if the so-called infidelity occurred after the ending of the defendant’s relationship, the trigger is not voided. Commentators such as Baker have criticised Clinton as undermining Parliament’s intent to narrow the defence.
The final trigger is set out in section 55(5): a combination of the first two triggers.
Reasonable man test
If the defence is permitted by the judge, it is for the jury to decide, according to section 54(1)(c), whether a person of the defendant’s age and sex, with a normal level of tolerance and restraint in the circumstances, might have reacted in the same or a similar way. According to Camplin v DPP , provocation also allowed for the defendant’s age to be accounted for. The Privy Council in Attorney General for Jersey v Holley  sought to eliminate provocation cases such as R v Smith  by requiring that ‘circumstances’ will not include characteristics of the defendant that only serve to explain the defendant’s lack of self-restraint. R v Asmelash  specifically rejected voluntary intoxication as a circumstance which could be taken into account.
There are a few further points to note on loss of self-control. Firstly, section 54(2) provides that the loss of self-control need not be sudden – R v Ahluwalia  may well be decided differently today. The Law Commission saw no need for the first element to the defence in any event, therefore also rendering this subsection obsolete.
Secondly, section 54(4) prevents loss of self-control being raised where the defendant in a considered desire for revenge, as occurred in Evans, one of the three appeals joined together in R v Clinton , where a husband killed his wife for threatening divorce after 41 years of marriage.
Finally, section 55(6)(a-b) dismisses self-control where the defendant incited the qualifying trigger. This seems to be a fair exception, however, if the incitement was accidental, or predictable but not the purpose of the defendant, it may be unjustified to deny the defence.
The new defence of loss of self-control is beneficial in a number of ways: it provides an avenue for defendants overtaken by fear as opposed to anger; it weeds out unmeritous defences before they reach the jury; it provides a clear and untainted objective test for the jury to apply and its exclusions are well articulated. Only Lord Judge appears to have some reservations: in R v Clinton , he hinted at ‘surprising results’ and ‘considerable difficulties’; and in R v Dawes , he commented on how narrow the circumstances in which the defence could be raised were. Norrie believes providing ‘battered wives’ with an excuse or justification for murder is an overreaction and is critical of the ‘sex’ requirement in the reasonable man test. But undoubtedly, the new defence is an improvement on the outdated defence of provocation.
Next: Involuntary manslaughter