chapter  72
6 Pages

The Defense of Loss of Control

WithRaana Din

Provocation or, since the England and Wales Coroners and Justice Act 2009, the new partial defense to murder of loss of control, is a form of voluntary manslaughter, that is, the defendant has the mens rea for murder. In essence, provocation has been regarded as the situation in which a defendant kills someone in the heat of the moment, having momentarily lost his or her control. Provocation was originally a matter for a jury or court to decide alone, determining what would provoke a normal person to suddenly or temporarily lose control and kill. Increasingly, however, psychiatrists were reluctantly drawn into this defense by being asked to submit evidence of psychiatric conditions that might increase the propensity of certain vulnerable individuals to be provoked. To prevent the use of this defense by those who lose self-control at the slightest provocation, the loss of self-control has been judged against how an average person might have reacted in the same situation, i.e., if the average person might have done the same in the same circumstances. It is only a partial defense and only to a charge of murder, not even attempted murder.1 The Court of Appeal accepted in Marks2 that provocation could be a defense to a charge of being an accessory to murder. In cases other than murder, the presence of provocation can lead to mitigation by way of reducing the sentence, which is impossible in the case of murder where currently there is a mandatory fixed sentence of life imprisonment. However, this does not preclude the imposition of a life sentence.3