Introduction
The provocation defence, now largely superseded by the "loss of control" defence under the Coroners and Justice Act 2009, constitutes a legal mechanism by which a defendant's criminal culpability for acts of violence, including homicide, may be reduced. The core principle of this defence hinges on the premise that an individual, acting under the influence of a specified form of external stimulus, namely provocation, experiences a temporary and extreme loss of self-control, leading to the commission of a criminal act. The defence operates by acknowledging that the defendant’s actions were not entirely autonomous, but were instead a reaction to an external trigger that impaired their capacity for rational conduct. This is not a full defence, but a partial defence that can reduce murder to manslaughter. Key requirements for this defence, as it stood before the 2009 Act, included demonstrating a sudden and temporary loss of self-control that was triggered by a qualifying act of provocation; in addition, it had to be shown that a hypothetical ‘reasonable person’ would also have acted in a similar manner. The technical principles underlying the provocation defence involve a complex evaluation of both the subjective state of the defendant and the objective expectations of societal norms.
Evolution from Provocation to Loss of Control
The common law defence of provocation, historically, centered on the notion that an individual who committed homicide while in a state of intense, sudden anger brought on by a provocative act should be treated with a degree of leniency. This defence required a “sudden and temporary loss of control," as established in R v Duffy [1949] 1 All ER 932, presuming the violent act directly followed the provocation. However, this interpretation faced problems in cases involving domestic abuse, where the reaction to provocation may not be immediate. R v Ahluwalia [1992] 4 All ER 889 highlighted the issues in such situations, acknowledging the concept of a “slow-burn” reaction, a delayed response to prolonged provocation. This case revealed that the immediate reaction element of the definition needed more flexibility. The increasing challenges to this strict interpretation ultimately contributed to the overhaul of this defence.
The 2009 Act replaced the provocation defence with the loss of control defence, in which the defence requirements now include a ‘qualifying trigger,’ a specific external stimulus that triggers the loss of self-control. This trigger can be a fear of serious violence or words and conduct of an extremely grave character that give the defendant a justifiable sense of being seriously wronged. This change aimed to rectify the perceived limitations of the provocation defense, particularly in complex cases involving delayed reactions, as outlined in R v Gurpinar; R v Kojo-Smith and Caton [2015] EWCA Crim 178. The court clarified that under the new law, the judge must consider if there is sufficient evidence to raise the partial defence, and if so, must leave it to the jury. This places more responsibility on the judiciary to evaluate if the evidence would allow a reasonable jury to consider the defence. Gurpinar also demonstrated that the new defence is self-contained and is different from the old provocation defence.
Key Components of Loss of Control
The current "loss of control" defence, outlined in ss. 54 and 55 of the Coroners and Justice Act 2009, contains three central components that must be met to qualify for consideration by a jury. The first component requires that the act in question was a consequence of the defendant's loss of self-control, demonstrating a clear causative link. The second component mandates that this loss of self-control stemmed from a specified "qualifying trigger," typically involving a fear of serious violence or a sense of being gravely wronged. The objective element is the final component and requires a determination as to whether a person of the defendant's age and sex, with a normal degree of tolerance and self-restraint, and in the circumstances of the accused, might have reacted in a similar manner. All three conditions must be met to establish the defence. As noted in R v Gurpinar, if sufficient evidence is produced to suggest that the defence may apply, it is assumed that it has been met unless the prosecution proves otherwise.
The assessment of a ‘qualifying trigger’ is a critical element in the defence. Section 55 of the 2009 Act specifies two categories of qualifying triggers: fear of serious violence, and things said and done which amount to a justifiable sense of being seriously wronged. A fear of serious violence can act as a qualifying trigger if the defendant believed they were under threat, and it does not have to be violence directed at the defendant. The ‘sense of being seriously wronged’ trigger must involve things said or done which a reasonable person would consider as extremely grave, and which causes the defendant a sense of being wronged. This aspect of the law aims to provide a framework for considering situations where an individual’s response may have been driven by powerful feelings stemming from extremely provocative situations. However, the law is not intended to be a complete excuse. The defendant must still exhibit a loss of control, in which they have lost their ability to act with self-control and reasoned thinking. It is then necessary to judge whether a reasonable person would have similarly reacted to this qualifying trigger.
The Objective Test and Relevant Characteristics
The objective test required by the loss of control defence involves assessing whether a person with the same age and sex and with ordinary tolerance and self-restraint would have reacted in the same way as the defendant, in the same circumstances as the defendant. The concept of “normal tolerance and self-restraint” establishes a baseline, against which a defendant's response can be judged. Certain characteristics of the defendant, such as age and sex, are taken into consideration, because these characteristics may reasonably affect a person’s tolerance levels. R v Bowen [1996] Crim LR 577 provided a guiding list of relevant characteristics that are considered when judging a defendant by the objective test. The case clarified that a low IQ was not considered relevant, however mental illness or serious physical disabilities were.
Furthermore, characteristics that result from self-imposed abuse, such as drugs and alcohol use, are not considered relevant to the objective test. This principle was affirmed in R v Asmelash [2013] 1 Cr App R 33, where the court of appeal clarified that the defendant’s voluntary intoxication should not form part of the circumstances relevant to the loss of control defence. This decision reinforces the notion that the “reasonable person” is considered sober, and does not include factors that are self-inflicted. In some instances, severe and serious issues with alcohol and drug use may be considered if that is what caused the defendant to be taunted to such an extent that it constituted a qualifying trigger. These conditions must be extreme enough to form the basis of the ‘qualifying trigger’ and are considered a part of the circumstances of the defendant.
Duress as a Related but Distinct Concept
While the provocation defence and the current loss of control defence focus on an individual’s reaction to external factors, duress presents a distinct legal defence, where the defendant’s actions are the result of coercion by external threats. Duress argues that a defendant's criminal behavior stems from an immediate threat of death or serious bodily harm. As defined in Attorney-General v Whelan [1934] IR 518, duress is a defence due to “threats of immediate death or serious personal violence so great as to overbear the ordinary powers of human resistance.” The threat is not something that causes a loss of self-control, but something that coerces a person to act in an unlawful manner.
A primary difference between loss of control and duress lies in the nature of the external force. Loss of control involves a reaction to a perceived wrong, a situation that causes a loss of self control. Duress, conversely, stems from an explicit threat to the defendant or their loved ones. R v Coles [1994] Crim LR 582 clarifies that, for duress to apply, the threat must be directly linked to the commission of a specific crime, and that there is no duress if the threatener is simply requesting money. In terms of the test, duress is also assessed both subjectively and objectively as per R v Graham [1982] 1 WLR 294. The subjective element considers if the defendant honestly believed their life was in immediate danger. The objective element considers whether a person of reasonable firmness would have reacted similarly. These elements are very similar to the tests used in loss of control, but require different factual situations. Like loss of control, duress is also not available as a defence to murder or attempted murder, as stated in R v Howe [1987] AC 417 and R v Gotts [1992] 2 AC 412.
Limitations and Practical Implications
The loss of control defence, while addressing some issues with the old provocation defence, still has limitations. The most important of these is that the defence is not available for the most serious crimes. As confirmed by the House of Lords in R v Howe, duress cannot be raised as a defence to murder. This decision established that the sanctity of human life is paramount. The House also found that no matter how strong the duress is, the offender should not have taken the life of an innocent person and that the law places the protection of innocent life as the most important objective. The same principle was extended to attempted murder in R v Gotts, with the view that someone who attempts murder is just as culpable as someone who murders.
The cases of R v Inglis [2011] 1 WLR 1110 illustrates another practical limitation of the defence. In this case, the defendant, Frances Inglis, killed her severely injured son due to her own view that he was suffering. The Court of Appeal upheld her murder conviction, establishing that "mercy killing" does not provide a defence to murder under any circumstances. The case did allow for a reduction in her sentence however, and shows how mitigating factors may be considered, but are not part of the question of guilt or innocence. Such cases highlight the narrow scope of the loss of control defence, emphasizing that emotional factors, even in the most desperate cases, cannot excuse murder. While such factors are considered at sentencing, the legal requirements of mens rea for murder are not affected. R v Martin [2001] EWCA Crim 2245 provided the view that, when there is a long-standing and serious mental condition, this can amount to diminished responsibility, which is also a partial defence to murder, and may result in a reduced sentence.
Conclusion
The evolution from the provocation defence to the current loss of control framework under the Coroners and Justice Act 2009 represents a significant development in criminal law. The current defence seeks to balance the need for holding individuals responsible for their actions with acknowledging circumstances where extreme provocation or a loss of control may have impaired rational decision making. Cases such as R v Ahluwalia and R v Gurpinar illustrate the complexity of these situations, highlighting the need for legal frameworks that can adapt to differing human experiences. While duress stands as a separate defense involving coercion, both areas of law demonstrate the nuanced approach that the legal system takes in evaluating criminal culpability. The technical components, such as qualifying triggers and the objective test of the ‘reasonable person’, aim to provide specific guidelines for the assessment of culpability. As R v Asmelash shows, these guidelines deliberately seek to exclude specific factors that are self imposed, such as intoxication. The cases of R v Howe and R v Gotts demonstrate the limitations of these partial defences, especially in cases of severe offences such as murder. Together, these factors illustrate the intricate nature of legal analysis in cases involving violence.
