Loss of Control

teachlawhub
May 3
5 min read

Loss of control is a partial defence to murder, here the law is recognising that the defendant has killed the victim but they are not fully liable for murder as they have acted out of a loss of control. The law therefore provides a partial defence to murder in these circumstances and if the defence is successful, the conviction is reduced to voluntary manslaughter (loss of control). This is important because it removes the mandatory life sentence and gives the judge flexibility when sentencing.

The Definition of Loss of Control:

The partial defence of loss of control is defined in Section 54 of the Coroners and Justice Act 2009. It explains that a defendant will not be convicted of murder if three elements are satisfied:

a) The defendant’s acts and omissions in doing or being a party to the killing resulted from the defendant’s loss of self-control.

b) The loss of self-control had a qualifying trigger; and

c) A person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of defendant, might have reacted in the same or in a similar way to defendant.

Loss of Self-Control:

Section 54(1)(a) of the Coroners and Justice Act 2009 states that the defendant must have lost self-control at the time of the killing. In simple terms This means that it must be proven that the defendant had lost their self-control when doing the acts which caused the victims death.

The courts have made it clear that this is more than just being angry or upset.

In the case of R v Jewell, the court explained that a loss of control means that the defendant has lost the ability to act in accordance with considered judgment or normal reasoning. Here in this case, the defendant claimed he felt threatened by a colleague, but he armed himself, gathered equipment, and waited overnight before carrying out the attack. This level of planning suggested he was still in control of his actions. This case shows that if a defendant appears to have planned their actions, it will be difficult to prove a genuine loss of control.

A loss of control therefore occurs if the defendant:

Could not act according to a considered judgment (the defendant couldn’t control their actions).
Lost their normal powers of reasoning.
Acted in a way that was very out of character and unusual for them.

Section 54(2) of the Coroners and Justice Act 2009 adds an important clarification here, the loss of control does not have to be sudden. This is a key difference from the old law of provocation and makes the defence more flexible.

In the case of R v Dawes, the courts stated that there doesn’t have to be a sudden loss of control as the defendant’s reaction can be delayed. It is for the jury decide if defendant lost control. Here in this case the defendant killed his estranged wife’s partner after discovering them together. Although there was not an immediate reaction, the court confirmed that a delay does not automatically prevent the defence from applying. Instead, it is up to the jury to decide whether the defendant genuinely lost control, even if there was some time between the trigger and the killing.

Qualifying Triggers

Once a loss of control is established, the next step is to identify the cause of that loss, this is known legally as a qualifying trigger. Section 55 of the Coroners and Justice Act 2009 states that the loss of control must result from a qualifying trigger. There are two main types of trigger, a fear of serious violence and/or thing said or done and understanding the difference between them is essential.

Fear of Serious Violence

Section 55(3) of the Coroners and Justice Act 2009 states that the defendant’s loss of control can result from the defendant’s fear of serious violence from the victim against the defendant or another identifiable person.

This was confirmed in the case of R v Ward, where the defendant killed the victim after the victim had previously attacked his brother. The defendant feared that the victim would attack his brother again. The court accepted that the fear of serious violence can be directed at someone other than the defendant.

Things Said or Done

Section 55(4) of the Coroners and Justice Act 2009 provides a second type of trigger, based on things said or done or both. However, the law sets a high threshold. The thing said or done must constituted circumstances of an extremely grave character, and it must have caused the defendant to have a justifiable sense of being seriously wronged. This basically means that it was really bad and gave the defendant enough reason to get angry to kill.

A case example of this can be seen in the case of R v Hatter, here the defendant tried to rely on the breakdown of his relationship as a trigger after killing his former partner. The court rejected this argument, explaining that a relationship breakdown on its own is not enough as it doesn’t provide a justifiable sense of being wronged. This highlights that everyday emotional situations, even if distressing, will not usually meet the legal standard required.

Excluded Matters:

Even where a trigger exists, there are important limits. And the law has excluded some circumstances from ever classing as a qualifying trigger.

Section 54(4) of the Coroners and Justice Act 2009 states that the defence cannot be used if the defendant acted out of a desire for revenge. If there is evidence that the defendant had time to reflect and then decided to act, the defence is likely to fail. This reinforces the idea that the defence is about loss of control, not calculated retaliation and revenge.

Section 55(6) of the Coroners and Justice Act 2009 states that sexual infidelity cannot, by itself, be a qualifying trigger. This means if the defendant discovers or believes that their partner has been unfaithful (e.g. cheating or having an affair) and then kills them because of this alone, the partial defence of loss of control will fail.

However, in the case of Clinton and others states that sexual infidelity can be taken into account alongside other qualifying triggers. In this case, the defendant killed his wife following a series of arguments involving both taunts and admissions of infidelity. The court held that while sexual infidelity alone is excluded, it can still be considered as part of the wider context when combined with other factors.

Another key excluded matter is found in Section 55(6)(a)-(b), which prevents defendants from relying on triggers that they have deliberately created, this is known as the defendant inciting a qualifying trigger. If the defendant provoked the situation in order to use it as an excuse for violence, they cannot rely on the defence.

The Standard of Self Control

Even if the defendant can show a loss of control and a qualifying trigger, the final stage is the objective test. Section 54(1)(c) of the Coroners and Justice Act 2009 requires the jury to consider whether a person of the defendant’s sex and age, with a normal level of tolerance and self-restraint, might have reacted in the same or a similar way.

This is where many cases fail. The jury might accept that the defendant lost control but still decide that a reasonable person would not have reacted by killing. In that situation, the defence will not succeed.

Section 54(3) of the Coroners and Justice Act 2009 allows the jury to take into account the defendant’s circumstances when applying the objective test. This might include factors such as depression, personality disorders, or post-traumatic stress disorder. These factors can help explain why the defendant reacted as they did, but they do not lower the standard of self-control expected.

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