Loss of Control is a partial defence which can reduce criminal liability from murder to voluntary manslaughter. It involves a Defendant killing whilst having lost their self-control due to a fear of serious violence or because of their justifiable sense of being seriously wronged.
This defence is very complex and has been the subject of a range of interpretations and reforms over the years. The current definition is from S.54 of the Coroners and Justice Act 2009 and states where a person kills or is a party to the killing of another, they are not to be convicted of murder if they can fulfil all 3 of the following elements:
1. Loss of Self-Control
This is the first and most important element of the defence. The Defendants acts or omissions in doing or being a party to the killing must have resulted from their loss of self-control. This element is subjective and looks at whether the defendant has lost self-control. This requires a loss of rational thinking or extreme emotion which explains the killing.
2. Caused by a Qualifying Trigger
The loss of self-control must be caused by one of the following qualifying triggers:
· Fear of serious violence from the Victim: this arises where the Defendant loses control as a result of a fear of serious violence against themselves or another identified person e.g. their child. Even if the Defendant has misread the situation and there is no actual threat, as long as their fear of serious violence is genuine, this requirement will be satisfied. If they caused the situation on purpose, then this will not meet the requirement as they acted in a way which provoked the violence.
· A justifiable sense of being wronged by things done or said that were of an extremely grave character: this requires the Defendant to identify comments or actions which caused the loss of self-control. They must feel personally wronged, but this must be justifiable, and the circumstances must be grave. As with the previous trigger if the Defendant caused the situation on purpose, they would not meet this requirement. Also, the law excludes things said or done which constitute sexual infidelity, so killing in response to this this would not be a ground for the defence.
3. A person of their age and sex might have reacted the same way
This means that their reaction must have been understandable so a person of their age and sex with normal tolerance and self-restraint, and in the Defendant’s circumstances, might have reacted in either the same or a similar way to them.
Revenge is Excluded
This defence cannot be used for acts of revenge. If the Defendant acts out of a considered desire for revenge this will be used as evidence that they did not lose self-control. This means that they will lose a vital element required for proving this partial defence.
Even if they satisfy all the elements, if the act resulted from a desire for revenge, then the partial defence cannot be used. This is vital to prevent loss of control from being used by individuals who kill out of revenge but can present difficulties for victims of domestic abuse.
Impact
The trial judge will consider all three of these elements. If sufficient evidence has been provided to raise this defence, on which a jury could apply, then the burden of proof is on the prosecution to disprove this defence beyond reasonable doubt.
A person who, but for this partial defence, would be liable to be convicted of murder is liable instead to be convicted of manslaughter. The maximum sentence would be life imprisonment, but this is not mandatory, whereas if the Defendant was convicted of murder a mandatory life sentence would be imposed. The sentencing range is between 3 and 20 years imprisonment depending on the severity of the offence.
In conclusion, the partial defence of loss of control is complex and can have a significant impact on the sentencing of a defendant. If you or someone you know requires legal advice, our team of criminal defence solicitors are on hand to help.