Manslaughter: Loss of Control

• Partial defense that reduces murder to voluntary manslaughter.

Old Law: Provocation (s.3 Homicide Act 1957)

• Requires proof of provocation, a sudden loss of self-control, and a reasonable person acting similarly.
• "Sudden" requirement:
  • Duffy: Defined provocation as causing "sudden and temporary" loss of control.
  • Ahluwalia: Defense failed due to time delay in domestic abuse case.
  • Thornton: Similar domestic abuse facts led to failure due to time delay.
• Reasonable Person Test:
  • Camplin: Age and sex relevant to the reasonable person test.
  • Morgan Smith: Controversially, allowed depression to be considered.
  • Holley: House of Lords tried to restore objectivity, limiting relevant characteristics to age and sex.
• Main problems:
  • "Sudden" requirement was unfair to abuse victims.
  • There was confusion about characteristics for the "reasonable person".
  • There were no restrictions on what could count as provocation.

New Law: Loss of Control (ss.54-56 Coroners and Justice Act 2009)

• Still reduces murder to manslaughter and remains a partial defense.
• Requires proof of loss of self-control, a qualifying trigger, and a normal person reacting similarly.
• Loss of control no longer needs to be "sudden."

Qualifying Triggers (s.55)

• Fear Trigger (s.55(3)):
  • Loss of control was attributable to fear of serious violence from the victim.
  • Designed to help domestic abuse victims who kill out of fear rather than anger.
  • Tension exists between "fear" and "loss of control."
  • Herring: Fundamental tension exists between control loss and fear and fear often leads to controlled responses, while the defense still privileges anger-based responses.
  • Norrie: Requiring loss of control makes it difficult to run both self-defense and this partial defense because self-defense requires rational action while loss of control suggests irrationality.
• Anger Trigger (s.55(4)):
  • Things said or done that were of an "extremely grave character" and caused a "justifiable sense of being seriously wronged."
  • Has a higher threshold than the old law's simple "provocation."
  • Objective element in "justifiable" requires a judging of the context, not just the defendant's personal feeling.
  • Dawes: Mere discovery of infidelity or relationship breakdown is insufficient on its own.
  • Bowyer: A Minor physical altercation not "extremely grave".
• A normal person of the same age and sex might have reacted the same way.
• Circumstances takes into account the context of the provocation or fear.
• Parsons: The Court of Appeal has been highly restrictive in its interpretation of the "anger trigger" requirement and this is determined through "objective assessment" by the judge and jury, not by the defendant.
• Parsons: The Court has established what does not qualify (e.g., relationship breakups, discovering burglars) and the bar is "much higher than under the former provocation defence, where even a baby crying could constitute provocation."
• Parsons: The cases provide limited guidance on what actually does qualify.
• Norrie: The "person of D's sex and age" test fails to address developmental immaturity in children or emotional immaturity in adults because age is just a "rough and ready" proxy for maturity.

What Is Not Allowed

• Revenge
• Self-induced provocation
• Sexual infidelity alone as a trigger (s. 55(6)(c)).
• Norrie: The blanket exclusion of sexual infidelity as a qualifying trigger creates problems in complex cases where infidelity is part of a pattern of taunting behavior.
• Parsons: Significant confusion exists about whether the "effects" of sexual infidelity (like jealousy or possessiveness) are excluded, arguing that both the acts and their effects should be excluded, otherwise "the exclusion in s. 55(6)(c) is meaningless."

Key Issues & Cases

• Loss of Control Concept:
  • Jewell: Planning (gathering weapons and survival gear) undermined loss of control claim.
  • Rejmanski: Explored boundaries between planning and genuine loss of control.
  • Gurpinar: Judges should filter out weak loss of control claims before jury consideration.
• Qualifying Triggers:
  • Dawes: Just feeling angry isn't enough because circumstances must be "extremely grave."
  • Parsons: Criticizes the Court of Appeal's interpretation in Dawes, where Lord Judge set an extremely high threshold for what constitutes "loss of control," providing minimal guidance on when this threshold is reached, leaving the meaning "somewhat obscure."
  • Parsons: Says Dawes was likely acting out of anger that fueled his loss of control, but the court required something more "overwhelming," setting a higher threshold than the previous provocation defense, where loss of control had to be fueled by anger but "did not have to be overwhelming."
  • Clinton: Sexual infidelity can provide context even if not the main trigger.
  • Hatter: Further clarified the boundaries of sexual infidelity exclusion.
• Objective Test:
  • Asmelash: Being drunk doesn't count in the "normal person" test.
  • Martin: Clarified which characteristics beyond age and sex might be considered.
  • Bunch: Explored overlap between loss of control and diminished responsibility.

Assessing the Reforms

• What's Better:
  • The removal of "sudden" requirement.
  • The addition of "fear trigger" to help domestic abuse victims.
  • Judge filters out weak cases before jury sees them.
• What's Still Problematic:
  • The "loss of control" concept remains unclear.
  • The sexual infidelity exclusion is undermined by Clinton case.
  • It's hard to reconcile fear with loss of control.
• Norrie: The new law increases the judge's power to determine what triggers are "morally or politically acceptable" rather than leaving this to the jury, shifting moral evaluation from an actual jury to an "ideal" jury that is "properly directed."

Key Academic Criticisms

• Norrie: Reform is "conceptually confused" and trying to address both anger and fear in one defense is contradictory, as the qualifying trigger concept doesn't solve underlying problems.
• Herring: Fundamental tension exists between control loss and fear and fear often leads to controlled responses, while the defense still privileges anger-based responses.
• Miles: Called sexual infidelity exclusion a "dog's breakfast" because said artificial separation of motives doesn't reflect how relationships work and Clinton case exposed the impracticality of the exclusion.
• Wells: Despite reforms, defense remains gender-biased, not properly recognizing women's experiences, suggesting a separate defense for domestic abuse victims.
• Reed & Wake: "Extremely grave" and "seriously wronged" thresholds remain vague while a a lack of clear definitions causes inconsistent application and courts struggle to set consistent standards.

Exam Tips

• Compare old and new law directly.
• Use case names to support your points.
• Link academic criticisms to specific aspects of the law.
• Discuss if the reform achieved its goals.