New “loss of control” defence as murder law reforms take effect

30 September 2010 by Matthew Hill

Joshua Rozenberg has written an article in today’s Guardian pointing out that, as of Monday, a major reform of the law of murder will take effect. The measures, which were introduced by the last Government, in effect replace the old partial defence to murder of provocation with a new partial defence of “loss of control”.

As Rozenberg points out, a partial defence reduces an offence from murder to manslaughter, which means that a judge will not have to impose a mandatory life sentence on conviction. The reforms to the law on provocation stem from long-standing criticism that the defence’s archaic origins in the common law have led to it being unduly lenient in instances of hot-headed violence (e.g. a husband killing his wife on discovery of infidelity), while providing insufficient protection for “slow burn” cases (and in particular those where victims of prolonged domestic violence finally kill the perpetrators). In recent years, attempts by the courts to extend the partial defence to “slow burn” cases have led to increasingly strained interpretations of the law in this area, which have furthered calls for reform.

The new law is summarised by Rozenberg in the following way:

Defendants will still have to produce evidence that:
• the killing resulted from a loss of self-control;
• the loss of self-control had a “qualifying trigger”; and
• a person in the same position “with a normal degree of tolerance and self-restraint” might have reacted in a similar way.
A qualifying trigger can be: a fear of serious violence; or something said or done that was “extremely grave” and gave the defendant “a justifiable sense of being seriously wronged”; or both.
In deciding whether the loss of self-control had a qualifying trigger, the courts must ignore such factors as sexual infidelity and a desire for revenge.

As Rozenberg points out, the new law is complex and difficult to explain; what juries will make of it remains to be seen. Given that the main point of running the partial defence is to avoid a mandatory life sentence, Rozenberg is surely right to point out that the same end could have been achieved by the much simpler and more effective reform of abolishing mandatory life sentences in all murder cases. Judges would then be able to reclaim their proper role of sentencing according to the facts of an individual case.

It is also relevant to note that the reforms to the law on provocation were, in part, inspired by the Law Commission’s 2006 Report, Murder, Manslaughter and Infanticide. As was discussed in an earlier post, this report suggested a far more general reform of the law of homicide, including the introduction of different degrees of murder. Such reforms have won the support of the current and previous Directors of Public Prosecution.

While the reforms to the law on provocation are overdue and welcome, it is arguable that they do not go far enough. Partial and incremental reforms of this kind risk complicating the existing system when what is needed is comprehensive and coherent reform of the type suggested by the Law Commission.

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