1. Which of these was unsuccessful in arguing
provocation under the old law?
i.e. were found liable for murder or manslaughter by reason of diminished responsibility, rather
than manslaughter.
R v Davies R v Pearson R v Ahluwalia AG for Jersey v
Holley
R v Ibrams & R v Betambeau R v James, Karimi R v Camplin
Gregory

2. And now a little reminder of theory…
Before we look at the current law, we need to consider why we
have developed this partial defence, and what it should aim to do.
Then we can work it if it‟s doing what it should!
Why do we allow people who lose their self-control to
have this partial defence?
Why might it not be suitable for it to be a complete
defence?
Is it an excuse or a justification? Professor Norrie
argues that it is currently an excuse, but should work
more as ‘imperfect justification’.

3. Issues with the old law
„Sudden and temporary‟ loss of control
Role of the jury
Meaning of the reasonable man
Range of behaviour that could be „provoking‟
Whilst we look at the new law, have these in the back of your mind:
Does the new law adequately address the issues raised?

4. New law
Coroners and Justice Act 2009 s.54-5

5. Some basics:
Role of the Judge in loss of control pleas
in the opinion of the trial judge, a
jury, properly directed, could
reasonably conclude that the
defence might apply.
s.54
Look at these previous cases...
Do you think they would meet the new threshold?

6. Element One:
Loss of Self Control
(2) For the purposes of subsection (1)(a), it does not matter whether or not
the loss of control was sudden.
Issues with the section: R v Duffy 1949
“Sudden and
 The longer the gap, the more likely the temporary loss of
judge will withdraw it. control”
 Allows for a ‘cooling off period’ per
Ahluwalia.
Still must be a loss of control
 Law Commission didn’t want to keep these R v Cocker 1989
words.
 Allows a whole category history of
provoking actions or words to be taken into
account.

7. Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a
considered desire for revenge.
Why might these words cause problems?
How might this have affected these older cases?
R v Mohammed R v Ibrams & R v Pearson
Gregory

8. Element Two:
Qualifying Trigger s.55
Who can be
threatened? What about
Who can issue other types of
the provocation? abuse?
First Trigger:
D's loss of self-control was attributable
to D's fear of serious violence from V
against D or another identified person
‘Serious’ Judged subjectively
violence
So, D can even plead it where:
 Uses excessive force
 Makes a mistake

9. Extremely grave character
Second Trigger:
This subsection applies if D's loss of
self-control was attributable to a thing
or things done or said (or both)
which—
(a)constituted circumstances of an
extremely grave character, and
(b)caused D to have a justifiable sense
of being seriously wronged.
Justifiable sense of being seriously
wronged.

10. Other limitations on the Qualified Trigger?
If D incites the violence from V, Sexual infidelity isn‟t accepted as
as an excuse, he can‟t use it. an excuse.
D picks up the phone to hear
R v Johnson 1989 his wife conducting a phone sex
conversation with her lover. He
puts down the phone and goes
to her, strangling her.
Could D use
loss of D and V are arguing. V has been
abusive to V and punches her.
control as a He also says that she is
useless, and that he has been
defence in having an affair with her sister
for the last year. D stabs him,
these killing him.
situations?
D comes home to find her
husband sexually abusing their
young child. She stabs him to
But... What about Edwards? Could death.
he use it?
Are there other situations which should also
have been included.

11. What’s the phrase?
of
Loss of self control

12. Can you be better than Miss Hart?
Correct the paragraph below, to show your understanding of last lesson
Loss of of Control a partialdefence to murder. It comes from the Judges and
Loss Control is is a full defence to murder. It comes from the Coroners and
Criminal Justice Act 2009 ss.54-5. It was designed to replace the old defence of
provocation under s.3 of the Homicide Act 1957. The old Act had was heavily
taunting under s.3 of the Homcide Act 1957. The old Act had was heavily
criticised as itit allowed a very narrow rangesituations to be put put before the
criticised as allowed a very wide range of of situations to be before the jury.
In jury. In addition, the Duffy had decided that loss that loss of control meant
addition, the case of case of Stuffy had decided of control meant sudden and
sudden. This meant that many people could not not use it including battered wives
temporary. This meant that many people could use it including deep fried wives as
as they often waited until their victim posed less threat (e.g. asleep).
they often waited until their victim posed less threat (e.g. asleep).
To use the new Act, D must have a qualifying trigger, as defined in s.54 of the
s.55
Act. The trigger is either a fear of serious violence from V against an identifiable
Act. The trigger is either a fear of serious anger from V against anyone, or
something or something which or said which constitutes circumstances of a grave
person, done or said done constitutes circumstances of a deadly character and
character and an justifiable sense of beingsense of being seriously wronged. This
leaves D with leaves D with an justifiable seriously upset. This latter trigger is
latter trigger is objectively, and includesexcludes sexual infidelity.
judged judged objectively, and sexual infidelity.

13. The Test:
and
Were the actions of V enough
to prompt a person of D‟s sex Was it enough that D in those
and age with a normal degree circumstances lost their
of tolerance and self restraint control?
to lose their self control?
Why include age?
 What about gender?

14. ... how is this different to earlier tests?
it’s not!
Student Challenge:
AG for Jersey v
Holley
Stage One:
Can you match the case...
To the test...
To the description?
He ain’t
bedding no-
one. Never
mind his age
Stage Two:
Can you put them in order?
No
How has the test characteristics
developed? are relevant to
D’s self control
Note: These aren’t right!

15. Developing your understanding...
The Answers! As the old law is still good, we need
to look at what that old law actually
says!
Read the edited case report at the
back of your booklet and answer the
following questions in as much detail
as you can!
1. What were the facts of the case?
2. What was the provocation alleged?
3. What characteristics did D want included in
the „reasonable man‟?
4. What issue of public policy limited the
defence?
5. What does Devlin say that the „reasonable
man‟ includes?
6. Do you agree with this? Is it clear?
7. Should these be temporary or permanent
characteristics?
Extension: can you extend your commentary
on the characteristics by referring
to at least one controversial case?

16. The Test:
and
Were the actions of V enough
to prompt a person of D‟s sex Was it enough that D in those
and age with a normal degree circumstances lost their
of tolerance and self restraint control?
to lose their self control?
Why include age? What word has changed
from the old law?
Circumstances... Was
characteristics
 What about gender?
Why might that be more
flexible than the old
approach?

17. Exam skills:
Applying the law
AO2
Now you know what the law is, can you apply it
to a situation?
Louise and James have been together for a number of years. James is quite immature
and depressed. On the day in question, Louise tells James she want him out of the house,
as she has been sleeping with his brother, and they want to move in together. James
cries and Louise mocks him, telling him he is not a man and slaps him a number of times.
James snaps and picks up a vase, hitting her over the head twice,
James calls the paramedics, who arrive and whilst transporting her to the ambulance,
drop her twice, fracturing her skull further. Louise dies
Discuss James‟ liability for the death of Louise.

18. Now it’s over to you
Working in pairs, you are going to complete your own analysis of
a problem, creating a chain of causation and applying the law.
To answer them properly, you will have to recall some of the law
which we have looked at earlier in the term, and remember how
we approached James and Louise... OCD
Murder: Actus Reus
Murder: Mens Rea
Loss of Control
Qualifying trigger?
Enough to provoke the person with the age and sex
of D in the circumstances
Causation?
Finally: would they be successful or not ?

19. Other options?
Following
Morgan Smith:
Extreme
A merged plea?
emotional
disturbance
D hears about his ex-
girlfriend‟s new relationship The Law
and becomes enraged. He Commission
breaks into her flat and waits 2006 & 2004
for her to come home and
kills her.
They had broken up a number
of years earlier, and he was
with someone else.

20. Plenary
Back to the start:
Has the law addressed these
adequately?
„Sudden and temporary‟ loss of control
Role of the jury
Meaning of the reasonable man
Range of behaviour that could be „provoking‟