Homicide : Murder 1 –

Loss of Control

Katharine Matheson

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BPP SCHOOL
LAW SCHOOL
Homicide

Three lectures on Homicide:

1. Murder (A/R and M/R) and first
special defence – Loss of Control
2. Murder: second special defence –
Diminished Responsibility
3. Involuntary Manslaughter

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Murder: Actus Reus

Unlawful killing of another human being

under the Queen’s Peace: Coke (3 Inst 47)
Killing unlawful unless:
Killing an enemy soldier in battle
“Advancement of justice” (i.e. the death
penalty)?
Self defence
“Killing”: see causation (lecture 2)

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Homicide: Murder (Actus Reus)

“A reasonable person”
• A person born alive and capable of
independent life
R v Poulton
A-G’s Reference (No 3 of 1994)
R v Reeves
“Under the Queen’s Peace”
R v Adebolajo

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Murder: Mens Rea

Intention to kill/cause GBH

R v Vickers

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Defences to Murder

Full Defence:
Self Defence
Partial Defences:
Loss of Control
Diminished Responsibility

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Loss of Control

Previous defence of Provocation abolished

4 October 2010
Coroners and Justice Act 2009
New defence of Loss of Control
CJA 2009 ss 54-56

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 Loss of Control

1. Effect of Defence
If defence operates, D guilty of voluntary
manslaughter, not murder: s54(7)
2. Burden of Proof: s 54(5)&(6)
3. Relevance of previous law
R v Clinton, Parker & Evans

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Elements of the Defence

1. Did the defendant kill another person as a

result of losing control? S 54(1)(a)
2. Did the loss of control have a qualifying
trigger? S 54(1)(b)
3. Might “another person” have acted in the same
or similar way? S 54(1)(c)
• All three elements need to be analysed
sequentially and in detail: R v Clinton
• Prosecution need disprove only one element

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Element 1: did the defendant lose control?

Loss of control need not be complete: R v

Richens
Note s 54(2): “it does not matter that the
loss of control was not sudden”
But see reasoning in R v Ahluwalia
Note also s 54(4): no defence if D “acted in
a considered desire for revenge”

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 Element 2: the Qualifying Trigger

• S 55
• Two qualifying triggers identified
• The facts of a particular case may mean
that both qualifying triggers apply: s 55(5)

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 Qualifying Trigger 1:

Fear of serious violence: s 55(3)

Did D subjectively fear serious violence from
the victim aimed at him or another?

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 Qualifying Trigger 2

S 55(4)
Three requirements
1.Things said or done
2. that “constitute circumstances of an
extremely grave character: s 55(4)(a); and
3. Which “caused D to have a justifiable
sense of being seriously wronged”: s 55(4)(b)

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 Qualifying Trigger 2

When is a circumstance “extremely

grave”?
When is a feeling of being seriously
wronged justifiable?

Explanatory Notes

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Test in s55(4) – R v Clinton
An objective test.

Lord Judge stressed a fear of serious

violence, circumstances of an extremely
grave character, and a sense of being
seriously wronged. A high threshold.

Both requirements must be satisfied

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 Academic Opinion
Herring: It must be more than the normal
trials and disappointments of life.

Baker and Zhao: Must accord with

contemporary society’s norms and values.

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Events that cannot amount to a qualifying trigger

Fear of violence caused by something D

incited to be done: s 55(6)(a)
A sense of being seriously wronged caused
by something D incited to be done: s 55(6)
(b)
See R v Dawes, Hatter and Bowyer

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Events that cannot amount to a qualifying
trigger
Sexual infidelity: s 55(6)(c)
See Clinton
What amounts to infidelity?
In the context of what relationship?
Where infidelity is the sole reason for acting, the
defence fails.
Where infidelity is part of a wider picture, the jury
can consider all the evidence, including the
infidelity.

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Element 3: the reaction of “another person”

S 54(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
a similar way.’
“S54(3) -“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”.

Lord Diplock in DPP v Camplin

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What might only be relevant to capacity for tolerance and
self restraint?

R v Rejmanski;Gassman
Post traumatic stress disorder and a personality
disorder would be excluded by s54(3).

What else can you think of which might be

excluded?

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 A third category
R v Rejmanski
Hallet LJ: If a mental disorder has a relevance to the defendant’s
conduct other than a bearing on his general capacity for
tolerance or self-restraint, it is not excluded by subsection 3 and
the jury will be entitled to take it into account as one of the
defendant’s circumstances under s54(1)(c)….. but [it] would not
be relevant to the question of the degree of tolerance and self-
restraint which would be exercised by the hypothetical person
referred to in s54(1)(c).
R v Wilcocks
R v Morhall
R v Masiantoni

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Loss of Control and Intoxication

R v Asmelash

“with a normal degree of tolerance and self

restraint”

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Loss of Control and Intoxication

R v Asmelash
1. Can use the defence when drunk
2. Intoxication will be ignored in accordance
with s54(3) if only relevance is to tolerance
and self restraint”
3. If connected to the qualifying trigger, will be
taken into account in assessing the
qualifying trigger.

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