Introduction

Voluntary manslaughter is a category of unlawful homicide. It can apply in cases where a defendant who would otherwise be guilty of murder is able to plead one of two specific partial defences.

The partial defences, diminished responsibility and loss of control, can be found in the Coroners and Justice Act 2009. If a defendant successfully pleads one of these defences he may be found guilty of manslaughter not murder. A manslaughter verdict allows the judge more discretion in sentencing.

Definition

Loss of control replaces the former defence of provocation, found in the Homicide Act 1957.

Essentially, a defendant must prove they lost self control, there must have been a qualifying trigger for this loss of control and that a person of the same sex and age would have reacted in the same way in the circumstances.

Loss of self control

The defendant must prove loss control at the time of the killing.

Under the provocation defence in the Homicide Act 1957 this loss of control had to be sudden.

There is no such requirement under the new legislation.

Qualifying trigger

For the loss of control defence there must be a qualifying trigger, defined under S55 of Coroners and Justice Act 2009.

• Fear of violence

  A fear of violence was not a sufficient reason for loss of control under the former defence of provocation.

  Martin [2002]

  Defendant shot intruders at his home, one died and the other was seriously injured. Defendant heard the intruders and feared they may be violent towards him.

  Defendant’s appeal on the ground of self defence was rejected. However, court did reduce the conviction to manslaughter on the basis of diminished responsibility as the defendant was suffering from a longstanding paranoid personality disorder.

  Under the new rules set out in Coroners and Justice Act 2009 the defence of loss of controlmay have been available to the defendant.

  Coroners and Justice Act 2009

  S55(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.

  As set out in S55(3) ,The defendant does not have to fear violence from the victim. However, the fear of violence cannot be a general fear, it must relate to a specific identified person.

• Things said or done

  Coroners and Justice Act 2009

  S55(4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which-
  S55(4)(a)constituted circumstances of an extremely grave character, and
  S55(4)(b)caused D to have a justifiable sense of being seriously wronged.
  S55(5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).

  These tests were not part of the former law of provocation and therefore loss of control is narrower in this aspect.

  Extremely grave character

  The Act is silent on whether this is a subjective or objective test. It is likely defendants who suffer damage to property may argue this is a circumstance which is extremely grave character. Awaiting case law to develop further.

  Justifiable sense of being seriously wronged

  The explanatory notes state that the test is an objective test but case law has yet to develop this meaning any further.

  Doughty [1986]

  Defendant killed his 19 day old baby as he was crying constantly.

  Defendant’s conviction for murder was quashed on under the law of provocation.

  Defendant would be unlikely to have a defence under loss of control as he would be unlikely to be able to prove he had a justifiable sense of being seriously wronged.

• Excluded matters

  A few scenarios are explicitly ruled out in the Act.

  Sexual infidelity

  Coroners and Justice Act 2009

  S55(6)(c)the fact that a thing done or said constituted sexual infidelity is to be disregarded.

  It was argued the former law of provocation allowed an unfair defence for jealous partners who killed their lovers who were having an affair.

  Humes (Attorney General Reference No. 95) [2002]

  Defendant killed his wife. Defendant argued he had found out she had been sleeping with another man.

  Defendant was not put on trial as he plead guilty to manslaughter. Provocation was accepted by the judge and prosecution and he was sentenced to 7 years.

  Attorney General appealed the sentence. Court of Appeal confirmed defence of provocation and the seven year sentence were appropriate.

  Revenge

  Coroners and Justice Act 2009

  S54(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.

  Under the provocation law, there was a need for sudden loss of control and therefore if the defendant had time to consider revenge the defence was unavailable.

  Ibrahms and Gregory (1981)

  Defendants had been repeatedly terrorised by the victim, the ex boyfriend of one of the defendants. . Defendants reported the latest incident to the police on 5 October. On 10 October defendants attacked the victim aiming to cause him injury but not to kill but victim died of his injuries. Defendants were convicted of murder.

  Court of Appeal upheld the conviction as there was no sudden loss of control.

  However, if a sudden loss of control was present then the defence of provocation was available even if a desire for revenge was also an element.

  Baillie (1995)

  Defendant, a father, killed his son’s drug dealer. After finding out the victim had made threats towards his son. The trial judge refused to allow the defence of provocation to be put to the jury.

  Court of Appeal found the judge had erred as there was evidence of provocation and therefore it was a matter for the jury to decide if the defendant was suffering loss of control at the time of the killing.

  Under the Coroners and Justice Act 2009 it is unclear if the defence of loss of control would be available as there was an element of revenge.

  Awaiting case law to see how revenge is treated under the new Act.

Standard of self control

This seems to have codified a principle which had been developed in the case law relating to provocation – only sex and age are relevant characteristics to be considered.

Circumstances of the defendant

Sex and age are the only characteristics that con be considered in relation to loss of control. However, other circumstances of the defendant may be taken into account in deciding whether a person with a normal degree of tolerance and self-restraint may have reacted in the same way.

This was also the rule under the defence of provocation.