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CRIMINAL | Offences Against The Person

Voluntary Manslaughter:
Loss of Control
Study Note | A Level

26 SEPTEMBER 2011

Introduction
Voluntary manslaughter is a category of unlawful homicide. It can apply in cases where a defendant who would
otherwise be guilty of murder is able to plead one of two specific partial defences.

The partial defences, diminished responsibility and loss of control, can be found in the Coroners and Justice Act
2009. If a defendant successfully pleads one of these defences he may be found guilty of manslaughter not murder.
A manslaughter verdict allows the judge more discretion in sentencing.

Definition
Loss of control replaces the former defence of provocation, found in the Homicide Act 1957.

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 CORONERS AND JUSTICE ACT 2009
'S54(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be
convicted of murder if-
S54(1) (a) D's acts and omissions in doing or being a party to the killing resulted from D's loss
of self-control,
S54(1) (b) the loss of self-control had a qualifying trigger, and
S54(1) (c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and
in the circumstances of D, might have reacted in the same or in a similar way to D. S54(2) For
the purposes of subsection (1)(a), it does not matter whether or not the loss of control was
sudden.
S54(3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D's
circumstances other than those whose only relevance to D's conduct is that they bear on D's
general capacity for tolerance or self-restraint.
S54(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a
considered desire for revenge.
S54(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to
the defence under subsection (1), the jury must assume that the defence is satisfied unless the
prosecution proves beyond reasonable doubt that it is not.
S54(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with
respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury,
properly directed, could reasonably conclude that the defence might apply.
S54(7) A person who, but for this section, would be liable to be convicted of murder is liable
instead to be convicted of manslaughter.
S54(8) The fact that one party to a killing is by virtue of this section not liable to be convicted of
murder does not affect the question whether the killing amounted to murder in the case of any
other party to it.'

Essentially, a defendant must prove they lost self control, there must have been a qualifying trigger for this loss of
control and that a person of the same sex and age would have reacted in the same way in the circumstances.

Loss of self control

The defendant must prove 'loss control' at the time of the killing.

Under the provocation defence in the Homicide Act 1957 this loss of control had to be sudden.

AHLUWALIA (1992)
Defendant killed her husband when he fell asleep. Defendant was suffering from Battered Woman’s
Syndrome, after being subjected to many years of abuse. Defendant was found guilty of murder.

Court of Appeal did not allow her appeal on the basis of provocation as there was no sudden loss of
control, highlighting the longer the delay the more likely the act had been deliberate. However, the
court did allow her appeal on the grounds of diminished responsibility.

There is no such requirement under the new legislation.

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Qualifying trigger
For the loss of control defence there must be a 'qualifying trigger', defined under S55 of Coroners and Justice Act
2009.

Fear of violence
A fear of violence was not a sufficient reason for 'loss of control' under the former defence of provocation.

MARTIN [2002]
Defendant shot intruders at his home, one died and the other was seriously injured. Defendant heard
the intruders and feared they may be violent towards him.

Defendant’s appeal on the ground of self defence was rejected. However, court did reduce the
conviction to manslaughter on the basis of diminished responsibility as the defendant was suffering
from a longstanding paranoid personality disorder.

Under the new rules set out in Coroners and Justice Act 2009 the defence of 'loss of control'may
have been available to the defendant.

CORONERS AND JUSTICE ACT 2009

'S55(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious
violence from V against D or another identified person.'

As set out in S55(3) ,The defendant does not have to fear violence from the victim. However, the fear of violence
cannot be a general fear, it must relate to a specific identified person.

Things said or done

CORONERS AND JUSTICE ACT 2009

'S55(4) This subsection applies if D's loss of self-control was attributable to a thing or things
done or said (or both) which-
S55(4)(a)constituted circumstances of an extremely grave character, and
S55(4)(b)caused D to have a justifiable sense of being seriously wronged.
S55(5) This subsection applies if D's loss of self-control was attributable to a combination of
the matters mentioned in subsections (3) and (4).'

These tests were not part of the former law of provocation and therefore 'loss of control' is narrower in this aspect.

Extremely grave character

The Act is silent on whether this is a subjective or objective test. It is likely defendants who suffer damage to property
may argue this is a circumstance which is 'extremely grave character'. Awaiting case law to develop further.

Justifiable sense of being seriously wronged

The explanatory notes state that the test is an objective test but case law has yet to develop this meaning any
further.

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 DOUGHTY [1986]
Defendant killed his 19 day old baby as he was crying constantly.

Defendant’s conviction for murder was quashed on under the law of provocation.

Defendant would be unlikely to have a defence under 'loss of control' as he would be unlikely to be
able to prove he had a 'justifiable sense of being seriously wronged'.

Excluded matters
A few scenarios are explicitly ruled out in the Act.

Sexual infidelity

CORONERS AND JUSTICE ACT 2009

'S55(6)(c)the fact that a thing done or said constituted sexual infidelity is to be disregarded.'

It was argued the former law of provocation allowed an unfair defence for jealous partners who killed their lovers who
were having an affair.

HUMES (ATTORNEY GENERAL REFERENCE NO. 95) [2002]

Defendant killed his wife. Defendant argued he had found out she had been sleeping with another
man.

Defendant was not put on trial as he plead guilty to manslaughter. Provocation was accepted by the
judge and prosecution and he was sentenced to 7 years.

Attorney General appealed the sentence. Court of Appeal confirmed defence of provocation and the
seven year sentence were appropriate.

Revenge

CORONERS AND JUSTICE ACT 2009

'S54(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a
considered desire for revenge.'

Under the provocation law, there was a need for sudden loss of control and therefore if the defendant had time to
consider revenge the defence was unavailable.

IBRAHMS AND GREGORY (1981)

Defendants had been repeatedly terrorised by the victim, the ex boyfriend of one of the defendants. .
Defendants reported the latest incident to the police on 5 October. On 10 October defendants attacked
the victim aiming to cause him injury but not to kill but victim died of his injuries. Defendants were
convicted of murder.

Court of Appeal upheld the conviction as there was no sudden loss of control.

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However, if a sudden loss of control was present then the defence of provocation was available even if a desire for
revenge was also an element.

BAILLIE (1995)
Defendant, a father, killed his son’s drug dealer. After finding out the victim had made threats towards
his son. The trial judge refused to allow the defence of provocation to be put to the jury.

Court of Appeal found the judge had erred as there was evidence of provocation and therefore it was a
matter for the jury to decide if the defendant was suffering loss of control at the time of the killing.

Under the Coroners and Justice Act 2009 it is unclear if the defence of 'loss of control' would be available as there
was an element of revenge.

Awaiting case law to see how revenge is treated under the new Act.

Standard of self control

CORONERS AND JUSTICE ACT 2009

'S54(1) (c) a person of D's sex and age, with a normal degree of tolerance and self-restraint and
in the circumstances of D, might have reacted in the same or in a similar way to D. '

This seems to have codified a principle which had been developed in the case law relating to provocation – only sex
and age are relevant characteristics to be considered.

CAMPLIN [1978]
Defendant, a 15 year old boy, had been sexually abused and taunted by the victim, an older man.
Defendant killed the victim by hitting him over the head with a heavy frying pan. Defendant was
convicted of murder following a direction by the trial judge to the jury that they were to judge him by the
standards of the reasonable adult.

House of Lords allowed the defendant's appeal on the basis that a more subjective test, taking into
account of the defendant's age, should have been applied. Defendant’s conviction substituted for
manslaughter.

Lord Diplock: '..the reasonable man... is a person having the power of self-control to be expected
of an ordinary person of the sex and age of the accused, but in other respects sharing such of
the accused's characteristics as they [the jury] think would affect the gravity of the provocation
to him...'.

ATTORNEY GENERAL FOR JERSEY V HOLLEY [2005]

Defendant killed his girlfriend with an axe. Both were alcoholics.

It was held test is an objective one, where none of the defendant’s characteristics are relevant, except
for sex and age, in assessing loss of control.

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Circumstances of the defendant
Sex and age are the only characteristics that con be considered in relation to 'loss of control'. However, other
circumstances of the defendant may be taken into account in deciding whether a person 'with a normal degree of
tolerance and self-restraint' may have reacted in the same way.

This was also the rule under the defence of provocation.

GREGSON (2006)
Defendant suffered from epilepsy and depression and was unemployed. Defendant killed the victim
who was taunting him about his unemployment.

Defendant’s epilepsy, depression and unemployment could be considered in relation to the gravity of
provocation but not in relation to the standard of self control expected.

HILL (2008)
Defendant lost control and killed the victim. Defendant had been sexually abused as a child and the
victim tried to sexually assault the defendant.

Defendant successfully argued the defence of provocation.

This article can be found online at www.bitsoflaw.org/criminal/offences-against-the-person/study-note/a-level/voluntary-manslaughter-loss-

control where links to further resources are available.

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