Analysis of the Loss of Control Defence under the 2009 Act: A Review

This essay provides a comprehensive analysis of the loss of control defence as established by the Coroners and Justice Act 2009, replacing the previous defence of provocation. It examines the shift in legal philosophy from an excusatory to a justificatory basis, as proposed by the Law Commission. The essay explores the Commission's concerns regarding the trivialization of the defence and its potential misuse on morally unacceptable grounds, such as racism or marital infidelity. It highlights the changes in the legal approach to provocation, including the introduction of requirements such as "extremely grave" provocation causing a "justifiable sense of being seriously wronged," and the judge's power to remove cases from jury consideration. Furthermore, the analysis differentiates between the old law's compassionate excuse and the new law's concept of imperfect justification, focusing on the nuances of anger and fear. The essay also discusses the implications of cultural context in these cases, emphasizing the potential for discrimination against defendants from cultural minorities and the need for specific provisions within the 2009 Act to address cultural circumstances, ensuring universal access to the defense.

INTRODUCTION
An Act to amend the law relating to coroners, to investigation of
deaths and to certification and registration of deaths; to amend the
criminal law; to make provision about criminal justice and about
dealing with offenders; to make provision about the Commissioner for
Victims and Witnesses; to make provision relating to the security of
court and other buildings; to make provision about legal aid and about
payments for legal services provided in connection with employment
matters; to make provision for payments to be made by offenders in
respect of bene fits derived from the exploitation of material pertaining
to offences; to amend the Data Protection Act 1998; and for
connected purposes. Under s.54-56 of the Coroners and Justice Act
2009, the defence of provocation is abolished and in its place comes a
new partial defence involving loss of control. This new defence is
expanded to cover loss of control arising from both anger or outrage
(the old provocation ground) and fear. It is the product of work
undertaken by the Law Commission in 2004 and 2006, culminating in
a Government consultation paper published in 2008.1 As regards
provocation, the new law may cover much of the old ground, but there
is a significant difference of approach and emphasis that emerges
from the Law Commission's deliberations, even if it is not fully carried
through into the law. The essential difference is that the Law
Commission had recommended that new partial defences concerning
anger and fear should be enacted, but had cast these in a way that
entailed that loss of control be abandoned. The new defence, as its
name suggests, does not go that far. The Law Commission's
proposal, however, involved a significantly different way of looking at
killing through anger and fear to which rejection of loss of control was
integral. In this comment, I will focus on the changes made to the law
in light of the Law Commission's approach, the problems the
Commission identified, and the underlying theoretical changes it
sought to introduce.It is therefore argued that without a formal
statutory means of ensuring that the cultural significance of the
provocation to the defendant in question will be explained and given
due regard by the jury,defendants such as Uddin will find themselves
left in an underprivileged position by virtue of the current legal

position. ‘Culture’ is a wide ranging concept with many definitions.
Legal definitions of the term tend to downplay the cultural
contextualization of an incident in order to conform to the universal
application of the law. For the purposes of this discussion I shall use
an anthropological definition put forward by Professor William
Haviland, i.e. “the abstract values, beliefs and perceptions of the world
that lie behind people’s behaviour, and which that behavior reflects.
This definition defines culture by reference to communities which is
where problems with cultural differences focused on in this discussion
are most clearly visible. I shall point out how inadequacies in the
current law governing loss of control discriminate against defendants
from cultural minorities and argue that provision must be made for the
2009 Act to provide specifically for cultural circumstances, thereby
providing universal access to defence. If this is a bare summary of
what has happened, consideration of the nature of the reform and the
likely issues to which it will give rise depend on understanding the
underlying philosophy of the changes proposed. Here a significant
change occurred. In their first report, the Law Commission distinguished
two approaches to provocation, one with a justificatory, the other with
an excusatory basis. While acknowledging that this was problematic, the
Commission felt it did produce helpful arguments and the distinction
between the two operates to identify two different philosophies of
provocation. What are these? The first is that of what I shall call
imperfect justification, and it is this which informs the Law
Commission's own thinking. In this view, anger is not a morally
impermissible emotion, for it reveals a normal and, at one level,
appropriate, even perhaps virtuous, response to certain forms of words
or action. How this insight fits with the law is complex and operates at
two different levels. Some would argue that “anger cannot ethically
afford any ground for mitigating the gravity of deliberately violent
action”, but the counter-argument is that it “can be an ethically
appropriate emotion and that it may be a sign of moral weakness or
human coldness not to feel strong anger”. Even in this view, however,
anger cannot justify outright a violent response, certainly not a killing.
Nevertheless, “a killing in anger produced by serious wrongdoing is
ethically less wicked, and therefore deserving of a lesser punishment,

than, say, killing out of greed, lust, jealousy or for political reasons”.
Where a “belief that the provoked [person] has been wronged by the
provoker … is justified, it does not justify the provoked person in giving
vent to his or her emotions by resorting to unlawful violence, however
great the provocation. Two wrongs do not make a right. However, …
there is a distinction in moral blameworthiness between overreaction to
grave provocation and unprovoked use of violence.” This idea of
responding by way of an action that requires a nuanced and complex
judgment of both its particular rightfulness and its overall wrongness I
seek to catch by the term “imperfect justification”. Note that in this
approach, no reference need be made to a loss of self-control, for on this
account, it is the way that anger righteously informs action, albeit in a
context of overall wrongness, that provides the element of justification
to set against the overall sense of a wrongdoing. On this model, it would
be inappropriate to require a loss of self-control as a part of the defence.
The defendant need not be out of control, though he or she acted when
the “blood was up”. Indeed to be out of control might take the moral
edge off what has been done in righteous, but sanctionable, anger. Note
also that what is true of anger is also true of fear, for fear too may be an
appropriate and justified, if overall wrongful, emotional response. With
both anger and fear, “there is a common element namely a response to
unjust conduct”. If this is the approach of the Law Commission,13 how
does it compare with the previous law and its underlying theoretical
approach? As the Law Commission point out, the approach informing
the 1957 Act was not one of justification but one based on excuse.14
Though they do not elaborate it, I would call it one of compassionate
excuse. This reflects the fact that the person is held to have lost self-
control, so that their act is intrinsically marked from the first as wrong. It
is (arguably) one thing to act out of morally appropriate anger,
remaining in control of one's actions, the new approach. It can never be
right at any level to lose one's control, for this entails a defect in one's
rationality, the sine qua non of moral action. Loss of self-control,
hijacking reason, is a problem from the start. At the same time, it can in
appropriate circumstances be understood, sympathised with, and
therefore be partially condoned or excused. The law condemns the act

both for the wrong done and the loss of control, but still extends a
compassionate hand to the actor. This is the basis for the idea that
provocation is a concession to human frailty, for the loss of self-control
and its consequence is condemned, but the weakness it represents is
viewed with sympathy. Note in this, by the way, the crucial rider “in
appropriate circumstances”, for it is not every loss of self-control that
will produce sympathy. Much will depend on the moral quality of the
provocation to which there was a reaction, as well as to the particular
human circumstances of the defendant. What was it about both the
provocation and the provoked defendant that caused her to lose self-
control, and is the “ordinary person” sympathetic to their plight? Is their
weakness something that can be condoned on a “there but for the grace
of God go I” basis? In sum, if the moral mark of the new Law
Commission approach is that conduct is imperfectly rightful, and
therefore both condemned and partially vindicated, the mark of the old
law was that conduct was partially excused, both wrongful and partially
condoned on ground of compassion. This, as we shall see, marks out two
different territories for the old law of provocation and the new law of
loss of control. I now return to the core problems that led to change in
the law.
Judge and Jury
As noted, there was a concern at the Law Commission that trivial forms
of provocation have to be left to the jury,but was this so serious a
problem? Could juries not be relied on to sort out the sheep from the
goats? In fact, another issue lay behind this concern, which was not the
trivial use of the defence but its use on morally or politically
unacceptable grounds (e.g. provocation to a racist, “honour killing”, and
marital infidelity, the provoked erotomaniac). To combat this, there were
two elements to the Law Commission's proposals, one which involved
strengthening the law with the requirement that provocation be
legitimately grounded as an appropriate response to provocation, and
therefore be (imperfectly) justified, the other involving the procedural
power of the judge, where the case is not legitimately grounded, to
remove the issue from the jury. To strengthen the legitimacy of

provocation claims, the Law Commission stipulated that provocation
should be “gross” and cause a “justifiable sense of being seriously
wronged”. The Act omits reference to “gross” provocation, but requires
instead that it must be “extremely grave”, and cause the same justifiable
sense of being seriously wronged. Here, the substantive moral issue of
what is a rightful or wrongful response to provocation is openly
addressed by both the Law Commission and the new law. Under the old
law, the matter was either dismissed as irrelevant to provocation, as in
the case of Morhall, or finessed, more or less successfully, as in the case
of Morgan Smith (see below). The law essentially declined to commit
itself on what were good or bad reasons to be provoked. The issue of
moral and political acceptability in being provoked was left to the jury.
The law did not provide a standard for assessing acceptability, nor was
the judge empowered to rule on the matter. Under the new law, the idea
of a justifiable sense of being seriously wronged directs the jury to
consider what is morally or politically acceptable, and, further, the judge
has the power to remove cases from the jury's consideration.
Interestingly, it should be noted that, with regard to the power of
removal, the matter is taken from the “actual” jury's consideration in the
name of an “ideal” jury. For example, the Law Commission wrote that
the racist killing in response to supposed provocation would be a case
where, “the jury may conclude that the defendant had no sufficient
reason to regard it as gross provocation, or indeed that the defendant's
attitude… demonstrated an outlook … offensive to the standards of a
civilized society”.
In such a case, no fair-minded jury, properly directed, could
reasonably conclude that there was gross provocation and the proper
course “would therefore be for the judge to withdraw provocation from
the jury”. This formula of the properly directed, reasonable jury makes it
into the law. It is also in this context that the Law Commission raised the
issue of killing a spouse revealing her infidelity. Another case
considered by the Law Commission is that of Stingel, the Australian
case involving killing out of male possessiveness and jealousy by a
stalker (erotomania). In Morgan Smith, Lord Hoffmann expressed the
view that such emotions were not acceptable grounds for being

provoked, but in line with the existing law indicated that the matter had
to be left to the jury, with an indication that they should use their moral
common sense as citizens representing the community to deal with it.
The Objective Test
The new law on this follows the Law Commission's recommendations.
Whereas the Law Commission stipulated that the standard should be that
of a person “of the defendant's age and of ordinary temperament, i.e.
ordinary tolerance and self-restraint, in the circumstances of the
defendant”, the new law speaks of a person of D's sex and age “with a
normal degree of tolerance and self-restraint in the circumstances. Here,
“'sex” is added to “age” as a general characteristic to be taken into
account, but the only other difference in the law from the Law
Commission's formula is the exclusion of the word “ordinary”, which
now suffers the same fate as “reasonable” in earlier case law, though
“normal” is neither more nor less specific than “ordinary”. In any case,
the important rider introduced by the Law Commission, that reference to
D's circumstances excludes matters whose only relevance is that they
bear on D's general capacity for self-control, is retained (though “self-
restraint” is substituted for “self-control”, and a reference to a capacity
for “tolerance” is also included). In this approach, it should be noted that
only age and sex are general characteristics to be taken into account.
This follows the older formula in Camplin, but it is worth pointing out
that it is unclear what role “sex” should play in the new law. Age is
included because, as the Law Commission put it, “capacity for self-
control is an aspect of maturity, and it would be unjust to expect the
same level of a 12-year-old and an adult”. Presumably the idea is that
sex also generally affects capacity for self-control, but exactly how is
left unstated. In any case, there is a problem with age. Capacity for self-
control is indeed an aspect of maturity, but age is not then the main
issue, maturity is. Age is no more than a rough and ready way of
marking maturity. One could have twelve year olds with very different
levels of maturity, and one could have adults with the maturity of 12-
year-olds. The Law Commission recognizes both issues. Of the child
with developmental immaturity, it notes that taking account of age

“allows for the child of normal development (who very seldom kills) but
not for the child with significant developmental problems”.
Such a child, further, may well have difficulties in being included under
the defence of diminished responsibility. What of the immature adult?
The Law Commission notes that “mental age is a complex subject” and
that many who kill are emotionally immature. But it argues that probing
psychiatric and psychological evidence about an accused's maturity
would be complicated and undermine the objective test. It accepts the
logic of extending the rule beyond a single “temporal” account of age,
but does not support it “for policy reasons”.31 The route here for a
defendant should be towards diminished responsibility, but it is doubtful
whether that defence, especially in its new form,32 is sufficiently
capacious to include all cases of emotional immaturity. In which case,
on its own proposal, justice is lost. The more general point, however,
concerns the limiting of general characteristics, a position which the
Law Commission recognised placed itself in the position of the minority
in Morgan Smith and majority in Holley under the old law. This takes us
back to what was wrong with Morgan Smith, and the problems that it
bequeathed to the subsequent law. In that case, Lord Hoffmann's
judgement left considerable power in the hands of the jury to decide
whether a “reasonable person sharing the characteristics of the accused”
under the Camplin test was entitled to the defence of provocation. In line
with Camplin and later case law, no ultimate distinction was drawn
between characteristics Page4 affecting the gravity of the provocation
and those affecting the general provability of the defendant, and no
distinction was made between morally acceptable and unacceptable
characteristics.