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Criminal Law: Defence of Loss of Control as Compared to Defence of Provocation

In making decisions regarding cases related to domestic violence, victims who were subject to violence were overlooked in most cases. This is because the old law about “loss of control” formed a strong basis for determining such cases. Thus, victims subjected to this form of violence did not receive just treatment. However, due to efforts made to replace the old law with the new law of “law of provocation”, the plight of such victims was considered. Therefore, the aim of this paper is to provide a clear analysis of the reasons why the old law was replaced with the “loss of provocation” law as well as discuss resultant contribution it made.


Loss of control is a form of defence, which is presided over by section 54 of the Corners and Justice Act formulated in 2009. It should be noted that the case of R v Clinton, Parker & Evans was the basis on which the court developed the “law of provocation” hence replacing the old and outdated law of “loss of control”. This “law of provocation” is perceived as having established two forms of testing cases. This is laid out in facts of the case for which one, the involved party, had lost the virtue of self control as a result of the vested trigger, which had already been provided by the accused (Toczek, 2000).


Second, it is possible that the accused acted in a manner, which resembled that of an individual of the same age and sex placed in the same scenario: pulled the trigger. Nevertheless, it was decided that a person of the same age and sex as the accused person lacked high degree of tolerance as well as self-restraint thus allowing emotions to take control over the situation at hand. In a critical point of view, it is logical to assume that two aforementioned forms of testing had developed into strengthening of the “law of provocation” thus limiting the allowance attributed to such defences. However, the law helped consider numerous cases as domestic violence, which were not considered by the old law of “loss of control”. Consequently, with the formulation of a new law, defendants were limited in the way they could use it in order to defend their respective behaviours.


Despite the fact that the law became popular across the globe, in the United States of America it was made clear that it needed to be changed on its aspect of punishment so that defendants were subjected to different forms of punishments in accordance with the degree of murder. This was not the case in courts of the United Kingdom since accused persons were subjected to a life sentence in case they were found guilty of murder. In the United Kingdom once an accused is proven guilty of murder under the law of provocation, they are subjected to 15 years of life-imprisonment (Toczek, 2000). After this period they are pardoned, although on license by the government. Licensing of former inmate, who was accused of murder, meant that their movements were monitored and limited in the sense that if they were involved in mere crime, they were sentenced again and were subjected to even harsher judgment.

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For instance, let’s assume a situation where a daughter who is subjected to rape by his father for a long period of time after gets fed up of the situation and, as a result, kills the father. In another scenario, a man is accused of killing other people for fun. These two cases are different and unique, and it is considered unfair to subject two aforementioned defendants to the same punishment. It is due to such cases that the old law was replaced with the new one, which used “loss of provocation” as a defence mechanism. The new law was meant to distinguish between violence committed in different scenarios. Thus, it took care of the possible justice impairments, which thrived in the old law (Toczek, 2000).

It is safe to note that defence of “loss of control” is applicable to murder cases only. In cases where defendants used the old law to successfully defend their actions, their respective murder claims acts were replaced with manslaughter. In case the accused is found guilty of manslaughter, it is established that they become imprisoned, and upon release they cannot be licensed by the government. This is because manslaughter is considered to be less serious as compared to murder cases.


The first amendment under section 54(1) (a) portrays the facts of the case under the condition that the accused lost self-control. In the current law of provocation, this defence is closely analyzed, and it is expected that the defendant proves loss of control. However, defendants are not able to defend themselves due to the notion that a reasonable man cannot in any way loose self-control. A good example for which the law of provocation was established is the case of R v Duffy whereby the defendant was accused of killing the husband after a heated argument. In the course of hearing, the defendant was found guilty of murder upon which she pleaded for provocation (Toczek, 2000).

Her appeal about the verdict was later dismissed and the Court of Appeal, Lord Goddard CJ went ahead and approved the appeal for loss of provocation to the sitting jury. It should be noted that old law of “loss of control” was perceived to have numerous loopholes. This is because it failed to recognize cases for which there was lapse of time so that there were no words to expound on the difference in time between provocation through words and the resultant killing. In this manner, killing is considered to be the last resort for a provoked defendant hence a cooling period. However, the courts were confused by the case, where a wife killed her abusive husband.


The cooling-off period in a murder case was determined based on the case of R v Ahluwalia. In this case the defendant killed her husband for raping and abusing her for a period of more than 10 years. Furthermore, the defendant claimed that her religious beliefs did not allow her to leave her husband despite the fact they had long been separated. One night, after the husband had beaten and raped her, the wife waited for him to fall asleep after which she poured petrol over his body and set him on fire. This defendant was later charged with murder of her husband. Contrary to the law of provocation, the jury could not treat it as a form of defence given the fact that the defendant had enough time to cool-off. Cooling-off time is described as a cooling-off period covering the time frame for which she was beaten through the husband falling asleep (Toczek, 2000). Thus, it was perceived that lengthening of the period resulted in an even stronger case since the defendant had acted on deliberation.

In the course of replacing the “loss of control” law, it was perceived as having favoured men given the assumption that they were more likely to react faster when provoked by either words or actions of their wives. The old “law of provocation” had not been crafted in a manner that allowed inclusion of victims, who acted in a slower manner. Thus, it was highly criticized for burdening women, who were likely to react in a much slower manner.

Notably, the Corners and Justice Act of 2009 does not involve any requirement which conforms to the necessity of “spontaneous” in the course of deciding murder cases. In effect, sec. 54(2) eliminates possible confusion which could be formulated on the basis that spontaneous loss of control be settled with any forms of delays between the periods of time linking the actual provocation and the resultant killings (Toczek, 2000).

Thus, presiding judges are given the mandate to determine length of delay, which occurs between provocation and resultant killings. Defence for loss of control is an issue settled by aforementioned judges.

Whenever the accused person is purported to be guilty of murder, it is crucial that the court figures out whether the accused had premeditated to kill or cause any harm to the body. Actually, this is taken to be the rationale behind comprehension of the true meaning of “loss of self-control”. Loss of self-control does not conform to the claims that the accused person was in fact angry or lost the ability to control their actions. If it is determined that they lost control of their anger, they cannot benefit from the Mensrea or Actusreus of murder in the court of law (Toczek, 2000).

In case the court is able to figure out that there was prolonged and premeditated attack, it is challenging for the accused person to rely on the defence of “loss of control”. This fact is cemented by sec.54 (4), which postulates that when the accused indeed acts out of revenge and commits murder, in that case defence is baseless. In proving the validity of “qualifying trigger”, there has to be threat of violence, not necessary actual violence, and the accused must prove that this threat of violence was directed towards them. Also, the threat of violence should have been serious in that matter. Consequently, the accuser must prove that the threat of violence was directed towards another person. It should be noted that in order for the accused to proclaim the trigger necessity in effect, he must have killed the accuser to eliminate the threat of violence. According to sec.55(6)(a),the defence from threat of violence cannot be used in case it is found out that it was a result of incitement (Toczek, 2000). This means that proclamation prevents elements of deliberate incitement from the wife to husband for killing him. The government has created two provisions for which the “trigger” is qualified. First is whenever it is established that the victim suffered abuse from the husband, she attacked him due to intention, which was not immediate in nature. Second is whenever it is established that an individual overreacted to what they perceived as imminent danger.

Contentious contribution made in sec. 55(6) (c) states the assumption that matter, which is done or purported to be sexually constituted should be discounted upon. This puts sexual infidelity out of the picture given the fact that it never constituted a “qualifying trigger”. The clause was put out of sympathy of juries, who pardoned men who killed their wives because of unfaithfulness (Toczek, 2000). The government condemns this sympathy stating that victims of murder should not be blamed for their misfortune and that the accused should not be subjected to manslaughter. In the case R v Clinton, Parker & Evans, the Court of Appeal indicated that infidelity could have contributed to the events, which led to murder. However, the court rejected the qualification of “trigger”.

Subsequently, the decision of whether one’s action was to be considered a serious wrongdoing to the accused but not to most people was a contentious issue to be addressed. Under the outdated law, the act of provocation was considered serious enough to provoke a reasonable man to commit murder. However, with the objectivity test, a reasonable man could not commit murder even because of intense provocation.

In sec. 54(1) (c), the law stipulates that actions of the accused should be compared to those of an individual, who depicts a “normal level of lenience and self-restraint” and also is of the same age and sex as the accused. In addition to this, the section does allow for inclusion of circumstances of the accused. This means that such aspects as past history of abuse as well as intensity should be taken into consideration whenever assessing reactions involved. This is reflected in the case of R v Humphrey whereby past history of accused with her boyfriend was taken into account. In another case, R v Thornton, the court treated the past history of “battered women syndrome” as relevant. In cases where killings are triggered by a minor incident and a proof of provocative action is given, it is upon the jury to consider cumulative background of provocation as well as to determine whether the accused has actually lost control (Toczek, 2000).

To sum up, it is possible to say that both the old and new law had significant influence on deciding murder cases caused by infidelity. However, with subsequent improvements, it was made clear that the Court of Appeal became more just towards women, who had long been disadvantaged by these decisions.


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