The Old Law: Provocation
Under the old law, a defendant could use the defence of provocation leading to a loss of self-control against homicide charges.
This defence had both a subjective and an objective element.
Subjective Element: the defendant conducted an action as a result of a provoked loss of self-control.
Objective Element: the provocation must be in a way that a reasonable person might have reacted.
In Mawgridge, it is established that sufficient provocation can be used as a defence to a murder charge in cases of insulting assault, seeing an Englishman unlawfully deprived of liberty or catching.
‘Jealousy is the rage of the man, and adultery is the highest invasion of property’.
Reason for Changes:
In cases where the defence of provocation was risen, the burden was placed on the prosecution to disprove.
The Homicide Act 1957 was enacted as juries were acquitting defendants of murder under the common law defence of provocation. It was quite hard to rebut the evidence provided by the defendant, as victims were no longer alive to give contrary evidence. This lead to an unequal application of the law that typically favoured men.
Loss of Control
A loss of control is the loss of the normal powers of reasoning.
The loss of control does not need to be sudden. [1] However, the greater the gap between the provocation and the killing, the less likely It is that the defence can be relied upon.
In Jewell, J killed V as a result of perceived intimidation by V. J later shot V and was convicted of murder.
Loss of control is only a partial defence to murder. [2] This means that, if successfully argued, the charge will be reduced to manslaughter.
It is the duty of prosecution to prove beyond reasonable doubt that the defence cannot be used once the elements have been proven by the defence.
The defence does not require the judge to leave loss of control to the jury; the judge has to consider whether, based on all evidence, the defence arises (regardless of whether it has been raised by the defendant or their council). [3] If there is sufficient evidence, it may be left to the jury to determine.
In Dawes, the judge was correct in not allowing the defence to be determined by the jury where there was no evidence of a loss of control or a triggering condition.
Subjective Condition:
The jury examine the defendants actions in regard to their own situation as they perceived the events.
The defendant will not be convicted of murder if their 'acts and omissions in doing or being a party to the killing resulted from the defendants loss of self-control.’ [4]
Objective Condition:
The jury will objectively decide whether the defendants actions were appropriate in comparison to another reasonable person that shares the same characteristics.
‘A person of D’s sex and age, with normal powers of tolerance and self-restraint might have acted in the same or in a similar way, in the circumstances.’ [5]
There is an additional requirement for the fear of serious violence.
‘Loss of control must have been caused by either a fear of serious violence and/or by things said or done, amounting to exceptionally grave circumstances, which caused D to have a justifiable sense of being seriously wronged.’ [6]
Qualifying Trigger:
A qualifying trigger is required to make a loss of control a valid defence.
‘D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person’. [7]
or
‘Circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged’. [8]
Exceptions [9]:
Sexual infidelity cannot be a qualifying trigger. [10] This marks a complete change from the common law defence of provocation, which was primarily based on this principle.
Someone cannot rely on loss of self-control when they incited the actions of the victim.
When there is a desire for revenge, loss of self-control cannot be applied. [11]
In Clinton, D’s wife (V) admitted to an affair. After taking drink and drugs, D beat and strangled V to death. It was determined that because of the sexual infidelity, the defence of loss of control could not be used. The House of Lords state that V’s words about infidelity are different from the actual act of infidelity, so it is not excluded from being a qualifying trigger. The conviction was quashed and D was retried by jury.
Resources:
References:
[1] R v Dawes [2013] EWCA Crim 322 [2] Homicide Act 1957 s3 [3] R v Gurpinar [2015] EWCA Crim 178 [4] Homicide Act 1957 s54(1)(a) [5] Coroners and Justice Act 2009 s54(1)(c)
[6] Coroners and Justice Act 2009 s55 [7] Coroners and Justice Act 2009 s55 [8] Coroners and Justice Act 2009 s55(4) [9] Coroners and Justice Act 2009 s55(6) [10] Ministry of Justice, Murder, manslaughter and infanticide: proposals for reform of the law (2008) [11] Coroners and Justice Act 2009 s54(4)
Cases Mentioned:
R v Mawgridge (1707) (Holt CJ)
R v Jewell [2014] EWCA Crim 414
R v Dawes [2013] EWCA Crim 322
R v Clinton [2012] EWCA Crim 2 (CA)
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