Anger and Fear as Justifiable Preludes for Loss of Self-Control

Abstract

Following the Coroners and Justice Act 2009, s. 56, the common law defence of provocation, which depended on a sudden and temporary loss of self-control (following R v Duffy1), is now abolished, as is s. 3 of the Homicide Act 1957. In its place is substituted a statutory defence of loss of self-control, which relies on some of the principles that constituted the grounds for provocation, its predecessor. For the first time fear qualifies as a new ground for loss of self-control (2009 Act, s. 55(3)). This article examines the new partial defence of ‘loss of self-control’ and considers what distinguishes the new defence from its predecessor and the features which are retained. It also evaluates whether the overarching objectives of restricting the ambit of the earlier defence and providing a new defence for battered women, shared by both the Law Commission and the government, are well considered and likely to be achievable. The new partial defence will be considerably restricted both by the new criteria and by returning the power to the judge, as ‘gatekeeper’, to prohibit an un***meritorious defence from going to the jury (2009 Act, s. 54(6)). The inclusion of fear as a new ground for loss of self-control will continue to present difficulties as long as the definition of ‘extremely grave’, a requisite of the qualifying trigger to this loss of self-control, is a jury question, and also insofar as ‘justifiable sense of being seriously wronged’ is to be judged on objective grounds. Further difficulties are presented by the requirement that the capacity for self-control, now expressed as the ‘tolerance’ and ‘restraint’, required of the defendant, is to be decided on objective grounds.