In the Media

Court of Appeal dismisses first ?loss of control? challenges

PUBLISHED March 26, 2013

Tuesday 26 March 2013 by Catherine Baksi

The Court of Appeal today provided its first interpretation of the new partial defence to murder, 'loss of control' in cases where fear of violence was claimed.

Loss of control replaces the previous defence of provocation which could reduce murder to voluntary manslaughter. Following Law Commission recommendations, it was introduced through sections 54 and 55 of the Coroners and Justice Act 2009, and came into force in October 2010.

Dismissing the appeals of three men against their separate murder convictions, the court ruled that the circumstances in which 'qualifying triggers' will arise are much more limited than the equivalent provisions in the former provocation defence.

The court, comprising the lord chief justice Lord Judge (pictured), Lady Justice Rafferty and Mr Justice Simon, said that as a result 'some of the more absurd trivia' which had previously required a judge to leave the provocation defence to the jury 'will no longer fall within the ambit of the qualifying triggers defined in the new defence'.

Judge said: 'For the individual with normal capacity of self-restraint and tolerance, unless the circumstances are extremely grave, normal irritation, and even serious anger do not often cross the threshold into loss of control.'

He said that the presence, or otherwise, of a qualifying trigger is not defined or decided by the defendant or any assertions he may make in evidence, or any account given in the investigative process.

For the defence to apply, Judge said the defendant must have a sense of being 'seriously wronged'. Even where that does exist, he said there are two distinctive further requirements.

'The circumstances must be extremely grave and the defendant's sense of being seriously wronged by them must be justifiable,' said Judge.

'In our judgment these matters require objective assessment by the judge at the end of the evidence and, if the defence is left, by the jury considering their verdict.

'If it were otherwise it would mean that a qualifying trigger would be present if the defendant were to give an account to the effect that, "the circumstances were extremely grave to me and caused me to have what I believed was a justifiable sense that I had been seriously wronged".'

Today's judgment follows the case of Clinton [2012] 1 Cr. App R 26 which considered the application of the defence in the context of 'sexual infidelity'.