Introduction
The defence of provocation, now replaced by the loss of control defence under sections 54-56 of the Coroners and Justice Act 2009, has long been a contentious area in criminal law. Simon Parsons (2015, p. 94) aptly observes that “the law got into a mess because of the disagreement as to whether there should be a constant standard of self-control in the provocation defence applied against all defendants or whether the standard expected should be reduced to take into account particular characteristics of defendants including mental disabilities.” This statement highlights a central debate: the balance between a universal standard of self-control and a more subjective approach tailored to individual circumstances. This essay explores whether the loss of control defence represents an improvement over the previous provocation law by addressing the issues Parsons identifies. It critically analyses the current legal framework, evaluates its strengths and limitations with reference to academic perspectives, and considers whether further reforms are necessary. Ultimately, the discussion seeks to assess if the law has resolved the “mess” or if underlying tensions persist.
The Provocation Defence: A Historical Standard of Self-Control
Under the old provocation defence, as outlined in section 3 of the Homicide Act 1957, the law required defendants to meet an objective standard of self-control, often described as that of the “reasonable man.” This meant that a defendant’s individual characteristics, such as mental disabilities or personal circumstances, were largely irrelevant to the assessment of whether their loss of self-control was reasonable (Horder, 1992). The landmark case of R v Camplin (1978) introduced some flexibility by allowing the jury to consider the defendant’s age and sex, but other personal traits, including mental health issues, were generally excluded from consideration, as seen in cases like R v Morhall (1996).
This rigid standard created significant problems. Parsons (2015, p. 95) argues that the law struggled to balance fairness with consistency, often leaving defendants with mental disabilities or other impairments at a disadvantage. For instance, a defendant with a recognised mental health condition might fail to meet the “reasonable man” threshold, despite their impaired capacity for self-control being a contributing factor to their actions. Academic critique, such as that from Horder (1992), suggests that the provocation defence was inherently flawed because it prioritised an abstract notion of reasonableness over the lived realities of defendants. The resulting “mess,” as Parsons describes, stemmed from judicial disagreement and inconsistent application, prompting calls for reform to address whether a universal standard could ever be just.
The Loss of Control Defence: A Step Forward?
The introduction of the loss of control defence under sections 54-56 of the Coroners and Justice Act 2009 sought to address these historical shortcomings. The new defence replaced provocation and aimed to provide a more nuanced framework. It requires a qualifying trigger—either fear of serious violence or a situation of an extremely grave character causing a justifiable sense of being seriously wronged—and that a person of the defendant’s sex and age with a normal degree of tolerance and self-restraint might have reacted similarly (s.55). This partially subjective test marks a departure from the strict objectivity of the provocation defence, acknowledging, to some extent, individual circumstances.
Parsons (2015, p. 98) suggests that this reform is a partial improvement, as it offers a more flexible standard by incorporating the defendant’s age and sex into the assessment of self-control. Furthermore, the qualifying trigger requirement adds clarity by narrowing the scope of acceptable circumstances, avoiding the overly broad interpretations seen under provocation (Herring, 2018). For example, in cases like R v Clinton (2012), the court demonstrated a willingness to consider complex personal circumstances alongside the trigger, suggesting a more inclusive approach than under the old law.
Nevertheless, the reform has not fully resolved the tension Parsons identifies. The Act still clings to a partially objective standard by referencing a “normal degree of tolerance and self-restraint,” which arguably fails to account for defendants with mental disabilities or other exceptional characteristics (Herring, 2018). This limitation raises questions about fairness. If a defendant’s capacity for self-control is impaired by a condition beyond their control, should the law not adjust its expectations? Critics like Norrie (2010) argue that while the loss of control defence is an improvement, it remains insufficiently subjective, perpetuating the exclusion of vulnerable defendants.
Critical Analysis: Does the Defence Fit its Purpose?
Parsons’ critique (2015, p. 101) questions whether the loss of control defence is “fit for purpose,” and this warrants deeper examination. On one hand, the defence addresses some historical inequities by moving away from the rigid “reasonable man” test and introducing qualifying triggers that provide a clearer boundary for its application. This can be seen as a pragmatic response to the earlier “mess” of judicial disagreement over standards of self-control. Indeed, the Law Commission (2006) advocated for such changes, arguing that the old law often failed victims of domestic violence and others whose reactions were influenced by extreme circumstances.
On the other hand, the defence retains an inherent flaw in its refusal to fully accommodate personal characteristics beyond age and sex. Herring (2018) notes that defendants with mental health issues or cultural backgrounds that influence their perception of wrongdoing are often disadvantaged by the objective elements of the test. For instance, a defendant with severe anxiety or post-traumatic stress disorder might react disproportionately to a perceived threat, yet fail to meet the “normal” standard of tolerance. This suggests that the law has not fully escaped the “mess” Parsons describes; it merely reframes it.
Moreover, the loss of control defence has been criticised for its complexity. The qualifying trigger requirement, while narrowing the scope, introduces additional legal hurdles, potentially making the defence less accessible to defendants who cannot clearly articulate a trigger (Norrie, 2010). Therefore, while the reform is arguably a step forward, it falls short of resolving the core disagreement over whether self-control standards should be universal or tailored to individual characteristics.
Is Further Reform Necessary?
Given these limitations, it is worth considering whether further reform is necessary. Personally, I believe the law would benefit from a more subjective approach that explicitly allows consideration of mental disabilities and other personal traits in assessing self-control. This could align the defence more closely with principles of fairness and individual justice. A possible model might draw from the Law Commission’s (2006) earlier proposals, which suggested a broader consideration of the defendant’s circumstances. Such reform could ensure that the law does not penalise those whose capacity for self-control is impaired through no fault of their own.
However, adopting a fully subjective test risks undermining consistency and predictability in the law. Parsons (2015, p. 100) warns that overly subjective standards could lead to erratic jury decisions, as personal biases might influence outcomes. Balancing fairness with legal certainty remains a challenge, and any reform must carefully navigate this tension. Perhaps a middle ground—allowing evidence of mental health conditions as a mitigating factor rather than a complete defence—could address these concerns while still promoting equity.
Conclusion
In conclusion, the loss of control defence under the Coroners and Justice Act 2009 represents a partial improvement over the provocation defence by introducing a more nuanced standard of self-control and clearer criteria for application. However, as Parsons (2015) highlights, the underlying “mess” of disagreement over universal versus subjective standards persists. The current law, while more flexible, still disadvantages certain defendants, particularly those with mental disabilities, due to its reliance on a partially objective test. Critical analysis reveals that while the reform addresses some historical flaws, it is not fully “fit for purpose” and may require further adjustment to better accommodate individual circumstances. Future reforms should strive to balance fairness with consistency, ensuring that the law neither excludes vulnerable defendants nor sacrifices legal predictability. Until such changes are made, the debate over self-control standards will likely continue to challenge the coherence of criminal law in this area.
References
- Herring, J. (2018) Criminal Law: Text, Cases, and Materials. 8th ed. Oxford: Oxford University Press.
- Horder, J. (1992) Provocation and Responsibility. Oxford: Clarendon Press.
- Law Commission (2006) Murder, Manslaughter and Infanticide. Law Com No 304. London: The Stationery Office.
- Norrie, A. (2010) ‘The Coroners and Justice Act 2009 – Partial Defences to Murder (1) Loss of Control’. Criminal Law Review, 4, pp. 275-289.
- Parsons, S. (2015) ‘The Loss of Control Defence – Fit for Purpose?’ Journal of Criminal Law, 79(2), pp. 94-101.
