Demystifying loss of control

The recent Channel 4 TV programme The Jury: Murder Trial focused attention on the jury trial process, but went for drama and sensationalism over accuracy, as our colleague Greg Foxsmith previously argued.

As a result, there was little attention paid to the legal issue in the dramatised case, which was “loss of control” as a partial defence to murder. This may have left some wondering what the actual legal position is.

The legal doctrine of loss of control is a valuable if controversial concept, offering a partial defence, solely for a charge of murder. If successfully deployed, the defendant will be found guilty of manslaughter, which avoids the mandatory life sentence for murder, and will likely attract a much lighter sentence. The starting point for sentencing can be as low as one year’s custody, potentially suspended where the sentence is two years or less; but in practice, sentences are often significantly higher.  

Enshrined within section 54 of the Coroners and Justice Act 2009 (applicable in England, Wales and Northern Ireland), loss of control supplanted the previous defence of provocation. The Court of Appeal has stressed on a number of occasions, most emphatically in R v Gurpinar [2015] EWCA Crim 178, that it “should rarely be necessary to look at cases decided under the old law of provocation. When it is necessary, the cases must be considered in the light of the fact that the defence of loss of control is a defence different to provocation and is fully encompassed within the statutory provisions” (paragraph 4).

The statutory position

Section 54 provides:

1. Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if—

1. D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,
2. the loss of self-control had a qualifying trigger, and
3. 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 in a similar way to D.

2. For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.

3. In subsection (1)(c) the reference to “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.

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

5. On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.

Loss of control offers a pathway for defendants whose actions were propelled by an involuntary loss of self-restraint. However, the application of this defence is far from arbitrary; it hinges upon the fulfilment of specific criteria.

To successfully the defence, defendants must prove two crucial elements. First, they must demonstrate a genuine loss of control, precipitated by a qualifying trigger such as fear or anger. Notably, the legislation explicitly precludes sexual infidelity as a valid trigger, thus establishing clear boundaries of admissibility.

Second, and arguably more significantly, the defence must pass an objective test and show that a reasonable person, reflecting the defendant's demographics and background, would have reacted similarly in the given circumstances. Here is the key: examination of the offending behaviour goes beyond subjective experience—it is based on the jury’s understanding of what society would deem reasonable.

However, as with any legal defence, difficulties arise. Factors such as premeditation or prolonged simmering anger can undermine its viability.

In conclusion, the concept of loss of control as a partial defence to murder illustrates a nuanced and controversial aspect of the legal system. While it offers defendants a route to potentially mitigate their charges and receive lighter sentences by demonstrating a genuine loss of self-restraint triggered by qualifying factors such as fear or anger, its application is subject to stringent criteria and scrutiny. Despite its potential to reduce sentences and acknowledge the complexities of human behaviour, challenges such as premeditation or prolonged anger can undermine its effectiveness. Ultimately, the defence highlights the intricate balance between justice, fairness, and the recognition of human fallibility within the criminal justice system.

Key loss of control cases

R v Clinton [2012] [2012] EWCA Crim 2

Fact summary: The appellant and his wife both suffered from depression for which they were on prescribed medication. He was experiencing financial difficulties and stress at work. He and his wife agreed to a trial separation for four weeks as she needed time out. She left him with the children and moved into her parents’ home. The appellant did not cope well with this and became obsessional and had been looking at suicide websites. Two weeks later she revealed to him that she was having an affair. He asked for her to come to the matrimonial home in order to tell the children together that their marriage was over. She agreed to meet. However, he had arranged for the children to be elsewhere at the time she was due to come and he was heavily intoxicated. At the meeting he killed her by repeatedly beating her on the head with a wooden baton and strangled her with a belt. He then took photos of her naked body in various poses and texted them to her lover.

According to the appellant, he lost his control at the meeting due to three factors:

1. She had told him that she had had sexual relations with five men and was describing in graphic detail the acts they had performed.

2. She had laughed and taunted him about a suicide website that he had been looking at on his computer.

3. She had told him she no longer wanted the children.

The trial judge held that the defence of loss of control was not available to the defendant because the words relating to infidelity should be disregarded as a qualifying trigger and the remaining factors alone were not of an extremely grave character nor would they cause the appellant to have a justifiable sense of being wronged. The defence of diminished responsibility was left for the jury to decide; however, they rejected this and found him guilty of murder. He appealed.

Held: The defence of loss of control should have been put to the jury. His conviction for murder was quashed and a retrial ordered.

Sexual infidelity cannot be relied upon on its own as a qualifying trigger, but its existence does not prevent reliance on the defence where there exist other qualifying triggers.

Where other factors count as a qualifying trigger, sexual infidelity may be considered in assessing whether things done or said amounted to circumstance of an extremely grave character and gave D a justifiable sense of being wronged under section 55(4) Coroners and Justice Act 2009.

Sexual infidelity may be considered in the third component of the defence in examining the defendant’s circumstances under section 54(1)(c).

 

R v Hatter [2013] EWCA Crim 322

Fact Summary: Mark Hatter developed a relationship with Dawn Blackhouse. She was younger than him. He was very generous to her and her children. He had never had children and she had promised to have her sterilisation reversed. The relationship later petered out and she started seeing another man, although she never told the defendant it was over. He went to her house at midnight with a knife and climbed through an upstairs window. He claimed he had taken the knife to lift the carpets and had accidentally stabbed her in the chest and wrist when he spun around whilst holding the knife. He then stabbed himself in the chest but survived. The defendant claimed accident at trial but this was rejected by the jury. The trial judge held that loss of control could not be put to the jury as there was no evidence that he had lost his control, the circumstances were not of an extremely grave nature nor did he have a justifiable sense of being seriously wronged. The defendant appealed against the judge's finding on loss of control.

Held: The appeal was dismissed and the defendant's conviction for murder was upheld. The question of whether the circumstances are extremely grave and whether the defendant had a justifiable sense of being seriously wronged is to be judged objectively. The break-up of a relationship will not normally constitute circumstances of an extremely grave character nor entitle the aggrieved party to have a justifiable sense of being seriously wronged,

“The circumstances must be extremely grave and the defendant's sense of being seriously wronged by them must be justifiable. 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". If so, when it is clear that the availability of a defence based on the loss of control has been significantly narrowed, one would have to question the purpose of s.55(3)(4) and (5).” (paragraph 61).

 

R v Bowyer [2013] EWCA Crim 322

Fact Summary: The defendant, Barry Bowyer, and the victim, Gary Suller, were both having a relationship with Katie Whitbread, a prostitute. Suller was her pimp.  The defendant was not aware she was a prostitute. They were both aware of the other’s relationship. On the night of the killing, the defendant went to Suller’s house to burgle him. Suller disturbed the burglary and a fight developed. Suller then revealed that Whitbread was a prostitute and taunted Bowyer that he was her best earner. The defendant lost his control, beat Suller and tied him up with an electricity cable. He remained alive after the attack but was found dead the following afternoon. The defendant was addicted to heroin, diagnosed as bipolar and suffered social phobia, anxiety and depression.

Held: The defendant had no justifiable sense of being wronged given that he was committing a burglary at the time of the offence.

 

As noted, loss of control was the topic of a recent Channel 4 reality TV experiment. Click here and here to read our further thoughts on the programme. 

More Information 

For more information on any of the issues mentioned in this blog, please contact a member of our criminal litigation team.

 

about the authors 

Úna Campbell works on a broad range of matters, including criminal defence and police investigations; white collar and financial crime; international crime and extradition; private prosecutions and public inquiries.