The introduction of the loss of control defence is a step backwards for the criminal law
The defence of provocation has been turned upside down by the Coroners and Justice Act 2009, and now it’s so hard to prove it’s practically non-existent.
This partial defence has been rebranded and renamed as loss of control, and only applies to murder cases. It’s a statutory recognition that, in some cases, people just lose it, see red and kill people.
The new law has greatly narrowed the scope of the defendants that qualify for this defence. The action that is “said or done” by the victim that provokes the killing must now fall within one the qualifying triggers laid down in section 55(6). The law says that the trigger must be “an extremely provocative act”, emphasising that simple provocative actions are no longer considered and the defendant must now be facing circumstances of an “extremely grave character” that caused him to have a “justifiable sense of being seriously wronged.”
The current legislation has not clarified the meaning of this and it’s been left to the courts to decide how it should be determined. In the case of R v Dawes, the courts concluded that the ending of a relationship does not constitute this and neither does the constant crying of a baby — as previously accepted in the 19th century case of R v Daughty.
We can assume that the new statute is designed to restrict the defence to a constricted range of circumstances. It does seem as though this defence would be suitable for cases where a victim of rape killed her attacker, showing that the threshold has been considerably increased compared to the old law of loss of control.
The courts affirmed their high threshold position in R v Clinton, where the courts held that the defendant must feel gravely wronged to rely on the trigger and simply cannot rely on “something said or done”.
The government deliberately set the bar high to facilitate such a result, preventing previous abuse of the older, laxer law. However, one can question whether the law has become over-strict and increased its threshold beyond a defendant’s reach, making it essentially null.
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Rather surprisingly, the new law has excluded sexual infidelity as a qualifying trigger. The Ministry of Justice has emphasised that “it is quite unacceptable for a defendant who has killed an unfaithful partner to seek to blame the victim for what occurred”, and a similar view was also taken by the courts in the case of R v Smith (Morgan).
This issue has led to intense controversy, with many critics holding conflicting views. The pinnacle case in this area is R v Clinton. The Court of Appeal surprisingly weren’t keen on the strict application of section 55(6) that excludes sexual infidelity.
Partners who find out that their other half has committed infidelity will no doubt feel some anger. They may not necessarily kill out of jealousy but may kill out of feeling cheated. The courts are not happy with outright exclusion of sexual infidelity as a qualifying trigger, as not every person that kills a cheating spouse has done so out of jealousy. It is apparent that the lawmakers have found a quick way of overcoming this problem by simply excluding the whole issue of sexual infidelity from the staute — a move that needs to be reconsidered.
Another issue is that the majority of sexual infidelity cases also include heated arguments, so can be classified as a ‘mixed case’. This will no doubt allow the defendant to refer to the heated discussions as a trigger rather than the act of sexual infidelity, a sneaky loophole.
The law has also changed dramatically in another area, assisting women who kill their partners out of fear of future violence. Section 54(2) of the act specifically removed the requirement for the loss of control to be “sudden”. The reason for this law reform was to develop and remove the requirement that the killing was “sudden and temporary”, as it was a rickety structure and was preventing innocent victims of domestic abuse accessing a defence to murder. The statute now acknowledges that women tend to lose control due to cumulative acts known as the ‘slow-burn principle’.
This development in the law will assist women that kill out of fear of facing future violence from their abusive partners; a defence that was not accessible previously. The law has recognised its previous flaws and has now moved to recognise a group of people who required assistance.
However, it is also recognised that this aspect of the defence has set a high threshold for defendants. It was predicted that this part of the defence would be open to abuse as women could potentially kill out of revenge (I recommend you watch ‘Snapped: Women who Kill’, and you’ll understand why).
So what can we say about these legal reforms? The new law has vastly raised the bar in terms of what constitutes loss of control, and now the defendant has a lot of hoops to jump through. The law has used terms such as “extremely” provocative act and “extremely grave character”, highlighting the fact that the defence is now strictly reserved for certain applicable cases and not widely available.
The problem is this: the defence has become too rigid, and is now verging on inaccessible.
Zahira Mahmood is a law graduate from the University of Bradford and is now studying dentistry in Spain.
Lead image via Wikimedia Commons