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CRIMINAL LAW REVIEW: Control; Defenses; Murder and Provocation

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Added on 2024/07/12

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This report examines the legislation surrounding the "partial defense of provocation" in the UK, specifically focusing on the Coroners and Justice Act of 2009. It analyzes whether the new "loss of control" defense is beneficial and evaluates criticisms of the legislation. The report delves into the historical context of provocation, the key arguments surrounding the new defense, and the potential for gender bias in its application. It also explores the impact of the legislation on cases involving battered women and the challenges of defining "suddenness" in the context of "slow burn" reactions. The report concludes by discussing the potential for the new defense to be misused and the need for careful consideration of its application in specific cases.

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CRIMINAL LAW REVIEW: Control; Defenses; Murder and
Provocation
Legislation: Coroners and Justice Act, 2009
1

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Table of Contents
Introduction......................................................................................................................................3
Discussion:.......................................................................................................................................4
Identification of Issues.....................................................................................................................4
Explanation of the Law....................................................................................................................6
Identification of the key aspects of the analysis of the cases and of the main arguments put
forward in the article........................................................................................................................8
Arguments and Criticisms............................................................................................................... 9
Reference List:...............................................................................................................................13
2

Introduction
This report will help to recognize the legislation with the “partial defense of provocation” and
will scrutinize whether, as endorsed by the Coroners and Justice Act of 2009, a new loss of
control defense would be helpful and these criticisms would be evaluated on to construct
effectual justifications. This presumption would aid to trail back the previous times in the
perception of integrity and political principles. This part of the legislature shows the justification
of aggravation, which has been abolished, and the amendments of the partial discrepancy
involving loss of control. This new-fangled amendment have urbanized and augmented to
recuperate the loss in any cases, which was illicit and has been dealt with fury and indignation.
This treatise will categorize the key arguments, which had been pragmatic by Norris during his
case, and this part will be significantly appraised during the continuation of the project. This
assignment will show the identification of the issues in the Coroners and Justice Act of 2009
(CJA), and this law would be explained in relation to these issues so that this can be understood
well and can be worked too.
3

Discussion:
Identification of Issues
The issue that has been faced by the battered women has been acknowledged by the commission
so that these can be used to decipher the predicaments in the laws. It was confronted that the
unexpectedness requirement in the law was misrepresented and this established the issues and
intricacies that were faced by women during the defense. In this case, the woman had been
physically abused and she fled to the kitchen to get a knife and returned to kill her husband.
Therefore, it was concluded by the Counsel that aggravation was not always mandatory to be
done due to the failure of self-control1. It was also incorporated into the law that unembroidered
elucidation will also be a reason for this kind of actions. Thus, it was imperative to discard this
argument and the defendant had to be sentenced to capital punishment on the grounds that were
used in the existing times. Soon after this incident, the Counsel has decided to bring in new acts
known as “slow burn reaction”, which said that anger after aggravation increases gradually if
someone demonstrates brutality after the occurrence has been caused.
There was a concern in the law commission that provocation had to be judged by the Jury if there
was a serious problem. However, in a case the Jury had no idea what to do, in fact, there was
another issue, which had occurred during this period. It was a trivial use of defense but it was
done politically and morally on unacceptable grounds like aggravation to a racist, marital
infidelity and honor killing. There was a huge critic on the loss of self-control that was done by
the commission and it was referenced to unnecessary and undesirable elements that have caused
this problems. There was an issue that was outlined by the commission and the circumstances
were involving ill-treated women who had suffered a enormous assault. She was aggravated by
apprehension and tried to break away from the ill-treatment by killing her abuse when the person
was asleep at night2. It was said by the commission that the defendant could strike and
1 Mitchell, Barry. "Loss of self-control under the Coroners and Justice Act 2009: oh no!." In Loss
of Control and Diminished Responsibility, pp. 53-63. Routledge, 2016
2 Reed, Alan. "Loss of Self-Control: When His Anger is Worth More than Her Fear." In Loss of
Control and Diminished Responsibility, pp. 92-110. Routledge, 2016.
4

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exterminate a person, if the person faced some grave fear or avoided any future violence. This
person can thus, resent to the loss of self-control in this state of affairs and it would be erroneous
to put that person in a statement, just because there was no proof of the loss of self-control. This
can be a cause of fear or for the desire of a survival of the person.
According to Norrie, the philosophy of the thought was flawed, and the decree of location that
was affirmed by the commission has been acknowledged by this individual as a empathetic
justification. According to him, “imperfect justification” was based on the manifestation,
sentiments that are reliant have failed in a convinced circumstance, and it has not been pointed
out that assassination of a person is actually appalling and is the scandalous activity3. Thus, it is
unfortunate to endow with adequate explanation like self-control as a defense, as the sensations
of the defendant was not only an unjust conduct as well as not a self-sufficient justification. It
could have been a vindicated idea if the battered women had essentially reached the boiling point
of emotions and she had performed an action that had evidently killed her husband, which was in
fact, was due to the loss of self-control. This would take the moral age off in a righteous manner.
Thus, the views of Norrie were used to reflect the process and bring changes to the act. The
commission had viewed annoyance as a “justified emotion” and they made it ethically
impermissible, but according to Norrie’s these were sometimes apposite actions and can be used
intentionally to waive off the punishment. There were individual defenselessness that has been
demonstrated and the response and therefore was a sign of moral weakness and human coldness,
and this was argued that the people who have performed these actions were quite same as the one
who have been murdered. Soon after, there was an evaluation that was done by the commission
in which it was decided that slaughter in unfavorable circumstances was morally less wicked
rather that assassination due to gluttony and excitement.
Hence, the commissioner had pointed out excusable justifications, which were related to the
Homicide Act and it was projected in this speculation that excuse had to be reasonable in the
court of law and evidences had to be complied with the excuses and the reason for which these
3 Storey, Tony. "Was it murder? Recent cases for loss of control." A-Level Law Review 10, no. 3
(2015): 14-15.
5

actions have been conducted. According to Norrie, this was termed as an empathetic excuse
which imitated that a person have lost his or her self-control to act in a wrongly manner so that
they could waive off the trepidation or take steps so that they were no more abused in the future.
If the action that has been conducted was convincing enough to waive off the punishment and
evidences has been provided in these cases, the punishment was partially excused4. This
approach was predestined and the failure of organizing of own self, unmitigated sympathy to the
defendant there by the presentation with compassion. This approach of aggravation is
understandable acknowledgement for the limitation of the populace and a reception that these
individuals can act in response impulsively and make errors.
Explanation of the Law
The Coroners and the Justice Act, (CJA) is an act of the United Kingdom and the body which is
responsible is the Parliament of the United Kingdom. This law has been introduced in United
Kingdom to prevent criminals to perform any criminal activities and profit from the publication
about the crimes, the abolishment of the offences and reenacting the provisions in case of
emergencies in the country. This law is also responsible for criminalizing illegal images, holding
slavery or servitude, and creation of partial defense of the loss of control. According to the
section 54 (1) (A) CJA, the conduct of the defendant has to be a consequence from a failure of
self-control. It has to be apparent that these peoples, who act as defendants in this case, have not
lost the control utterly in their actions and have not known what they were doing5.
Moreover, 54 (2) suggests that the loss of control case does not need to be impulsive at all times.
The law has taken the unsophisticated examination of provocation and it can be relied when the
defendant has been required to show his fury and resentment, which have resulted in such cases.
The “loss of control” was obligatory and has come to the strength in the 19th century and it was
brought to transparency and was explain as “a sudden and a temporary loss of self-control,
4 Nathan, Rajan, and Simon Medland. "Psychiatric expert evidence and the new partial defences
of diminished responsibility and loss of control." BJPsych Advances 22, no. 4 (2016): 277-284.
5 Reed, Alan. "The Serious Wrong of Domestic Abuse and the Loss of Control Defence." In Loss
of Control and Diminished Responsibility, pp. 78-91. Routledge, 2016.
6

rendering the accused subject to passion as to make him for the moment not master of his
mind.“ This was a component of the case of Norris and this element of the law unswervingly
relates to it. Secondly, the whole case of Norris was based on this legislature and it would be
unproblematic to comprehend if the law is understood well6. This would also be evidence for the
issues in the commandment and can be associated to the case of Norris.
Noteworthy influence was placed on the ‘unexpected and temporary’ necessities consequential in
them being measured prerequisites of aggravation. The judges have thrashed about to construe
and pertain, so that the facts related to the different cases have contrasting views. There was an
issue of gender biasness. It was as the suddenness requirement has catastrophic consequences on
the woman who was battered to death and there was a delay between the provocation and the act
of murder. Consequently, it was recognized by the commission that the conception of loss of
control was bothersome, principally after the case of battered woman syndrome. Thus, it was
essential to permit the psychosomatic understanding how men and women respond differently.
According to the psychiatrists, it has been seen that the people who are commonly bent to use
irate moments by losing self-control, the conditions were evaluated more. In general, if a man is
aggravated by women in definite circumstances he may resent to anger or fury where as a
woman is less likely to be aggravated by resentment and may not lose self-control in these
situations and make it worse. This was an issue and the loss of self-control concepts was termed
to be a dilemma7. Prearranged about a theoretical defendant who is ‘stereotypically gentleman
with aggressive responses to provocation’, the “loss of control requirement” obviously replicates
the technique in which people are to be expected to respond when aggravated. This is as they are
apt to convey their antagonism and mislay self-control by performing some criminal activities.
On this manifestation, the commandment comes out to be compassionate towards man who
6 Reed, Alan. "The Model of Tolerance and Self-Restraint." In Loss of Control and Diminished
Responsibility, pp. 64-77. Routledge, 2016.
7 Storey, Tony. "Loss of Control:‘Sufficient Evidence’(Again) R v Gurpinar; R v Kojo-Smith
[2015] EWCA Crim 178, Court of Appeal." The Journal of Criminal Law 79, no. 3 (2015): 154-
157.
7

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performs the deeds, even as building the defense more or less unavailable for women who are
determined to slaughter after existence of maltreatment.
Identification of the key aspects of the analysis of the cases and of the main arguments put
forward in the article
According to the new law of partial defense, the murders that have caused due to the loss of
control, requires loss of abilities to act in such situations. Thus, an administrator, had conducted
an objective test, was used to stipulate the experiences by the person, according to the age, the
sex and the degree of tolerance, that this person has faced in these certain circumstances and that
have caused that person take such a step. The proposal of the Commission was not accepted by
the government, it was immediately removed in connection with the self-control law, and the
government understood the flaws behind these proposals. It was suggested to the Ministry of
Justice that this would be a defense for the defendants who had been performing acts of
manslaughters in full possession of the senses. It was easily identified by the government that
this thing can be used as a defense for inappropriate actions done by the defendants such as
revenge killings and it was believed that the defense had a flaw and the defendants can lose self-
control in order to avoid danger for cold-blooded killings8.
To strike off a balance between these problems the commission has highlighted certain problems.
These issues have been according to the case of battered women when ending up in revenge
killings, the government has proposed to resolve the requirements of the suddenness in the case
of the loss of self-control in these women. It only applies for the situation where the defendant
could not react and the pain was going gradually due to the case of domestic violences. Maria
Eagle MP opined that there is generally a delay between the aggravated incident and the killing
and if the defendant has not taken action in this period, the loss of self-control policy would not
be applicable and the person would be punished. Thus, it was recognized that a battered women
8 Storey, Tony. "Loss of control:‘sufficient evidence’ R v Barnsdale-Quean [2014] EWCA Crim
1418, Court of Appeal." The Journal of Criminal Law 79, no. 1 (2015): 6-8.
8

may apply the laws of self-control in a delayed reaction but an insignificant delay would cause a
negligence of the defense9.
Arguments and Criticisms
As the government has removed the immediacy principle, it ensured that the defense would be
more appropriate for abused women and in all cases; the suddenness would not be a concern to
raise the fractional defense rather than being stigmatized so that the person can use this defense
for reduced dependability. As the loss of self-control does not need to be sudden, the defendant
has to provide some evidence in front of the judges and the juries so that the action that has been
done by them was due to the loss of self-control. The Jury and the Judges would then analyze if
the action has been done in a certain period or has been delayed by the defendant. This would
construct a general case law that constitutes the acceptable delay and the cause for which the
revenge has been taken10.
The government has assured that the new defense will be allowed and the women would be
given certain flexibility in some certain circumstances such as domestic violence, so that this
people can act when they face the fear of being abused. However, another issue had been found
that even if “slow burn” cases were used, there was a delay in the experience and this could have
been worse as the person had lost self-control and could not refrain from killing. The
Government of UK has emerged to overpower the purpose of the commission in broadening the
defense to the terror of aggressive cases. Notwithstanding the removal of the “sudden”
constituent, by keeping hold of the loss of control obligation, the Government comes out to “take
back with one hand what it gives with the other”.
9 Parsons, Simon. "The Loss of Control Defence—Fit for Purpose?." The Journal of Criminal
Law 79, no. 2 (2015): 94-101.
10 Powell, Jonathan. "Excessive warranted emotional killing: proposing a new partial defence
following an evaluation of the Coroners and Justice Act 2009 reform." PhD diss., University of
Birmingham, 2015.
9

According to the section (3) of the Homicide act, anything that has been conducted due to a
provocation conduct would be a part of the homicide act. Hogan and Smith argued that this was
unsatisfactory, as the defendant could have lost self-control while it should not have mattered
what caused them to take such an action. However, as opined by Herring, the person who accepts
the justification rationally has to provide the evidences and thus, Herring has criticized the
broadness of this act and he says that this can give way to some wrong judgments in the court of
law. It had been noted by the commission of UK that the word provoked means no more than
“caused” and even if the conduct were done by a minor person, it would be lawful and would be
considered as a provocation. As “Doughty” had said a crying baby is capable of using a
provocative action when it is in need. Gardner and Macklem had argued that if any angry
reaction was to be executed, it would be identified and accepted by the society and would be
classified as the provoking insults within the principles of the society. Thus, according to them
crying baby would not be considered as provocative conducts 11.
If the old law were taken into consideration, the defendant would be able to argue about sexual
infidelity, which was caused and would have provided a justifiable sense that they were
wronged. When the court would direct the Jury to analyze if there was a provocation, the actions
of the wife should be taken into consideration, her infidelity and the time gap that has been used
to conduct the action. Even if it is accepted that the person was sexually abused, the person
would be providing a defense to the provocation on the gender biases, the men of that time had
taken the advantage of the situation, and the jury was too much sympathetic towards these men.
Even if it is discussed that the old law was broad and constituted the loss of control, one of the
main criticism that the old law faced was that it was too much of restraining in nature and the
flaws can be used by the defendant to waive off the punishments12. It was recognized by the
commission that even though there was a defense for a case, then some evidence had to be
11 Clough, Amanda. "Battered Women: Loss of Control and Lost Opportunities." (2016): 279.
12 Horder, Jeremy, and Kate Fitz-Gibbon. "When sexual infidelity triggers murder: examining the
impact of homicide law reform on judicial attitudes in sentencing." The Cambridge Law
Journal 74, no. 2 (2015): 307-328.
10

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provided by the defendant that they lost control and acted for the defense concerned with
antagonism and prompted by the uncertainties13.
There was a huge debate as the Government of UK had excluded the sexual infidelity from the
homicide act of UK. It was offered to the government that this theory might be made a bit
sympathized for the people who care after discovering the partners infertility if they provide
evidences against the persons who cheat on their partners. It was agreed by the government the
loss of control could not only be caused due to abuses factors but it can also be caused due this
type of factors. If the government had excluded sexual infertility and not the circumstances like
killings then it would act as a demonstrating bias.
13 Storey, Tony. "Loss of Control:‘Sufficient Evidence’(Again) R v Gurpinar; R v Kojo-Smith
[2015] EWCA Crim 178, Court of Appeal." The Journal of Criminal Law 79, no. 3 (2015): 154-
157.
11

Conclusion
The above assignments have identified the criticisms of the partial defense provocation and the
Government of UK has enacted against the Coroners and Justice Act of 2009, so that defence
that is more effective can be provided. The law has been defined so that it can be related to the
case of Norris, and the injustice that had been created in the case of the battered women. The
objective test has been clarified in the above section and the retaining of the loss of control had
been conducted to provide concluding results. The above assignment has shown the legislation
and the justification of provocation and the amendments that had been included for in the
involvement and the loss of control. The key arguments and the criticisms had been provided in
the project and the cases have been critically evaluated. Finally this slower has been explain
relation to the case of Norris and the key analysis has been provided so that the law was easy to
understand. It constituted of the identification of the issues, the acceleration of the law, the
identification of the key aspects and their evaluation of the arguments and criticisms.
12

Reference List:
Clough, Amanda. "Battered Women: Loss of Control and Lost Opportunities." (2016): 279.
Horder, Jeremy, and Kate Fitz-Gibbon. "When sexual infidelity triggers murder: examining the
impact of homicide law reform on judicial attitudes in sentencing." The Cambridge Law
Journal 74, no. 2 (2015): 307-328.
Mitchell, Barry. "Loss of self-control under the Coroners and Justice Act 2009: oh no!." In Loss
of Control and Diminished Responsibility, pp. 53-63. Routledge, 2016.
Nathan, Rajan, and Simon Medland. "Psychiatric expert evidence and the new partial defences of
diminished responsibility and loss of control." BJPsych Advances 22, no. 4 (2016): 277-284.
Parsons, Simon. "The Loss of Control Defence—Fit for Purpose?." The Journal of Criminal
Law 79, no. 2 (2015): 94-101.
Powell, Jonathan. "Excessive warranted emotional killing: proposing a new partial defence
following an evaluation of the Coroners and Justice Act 2009 reform." PhD diss., University of
Birmingham, 2015.
Reed, Alan. "Loss of Self-Control: When His Anger is Worth More than Her Fear." In Loss of
Control and Diminished Responsibility, pp. 92-110. Routledge, 2016.
Reed, Alan. "The Model of Tolerance and Self-Restraint." In Loss of Control and Diminished
Responsibility, pp. 64-77. Routledge, 2016.
Reed, Alan. "The Serious Wrong of Domestic Abuse and the Loss of Control Defence." In Loss
of Control and Diminished Responsibility, pp. 78-91. Routledge, 2016.
Storey, Tony. "Loss of control:‘sufficient evidence’ R v Barnsdale-Quean [2014] EWCA Crim
1418, Court of Appeal." The Journal of Criminal Law 79, no. 1 (2015): 6-8.
Storey, Tony. "Loss of Control:‘Sufficient Evidence’(Again) R v Gurpinar; R v Kojo-Smith
[2015] EWCA Crim 178, Court of Appeal." The Journal of Criminal Law 79, no. 3 (2015): 154-
157.
13

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Storey, Tony. "Was it murder? Recent cases for loss of control." A-Level Law Review 10, no. 3
(2015): 14-15.
14

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CRIMINAL LAW REVIEW: Control; Defenses; Murder and Provocation

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