difference between provocation and loss of control
See Miranda Fricker, Epistemic Injustice: Power and the Ethics of Knowing (Oxford: Oxford University Press 2007), for an excellent analysis of this phenomenon. However, before the enactment of the 2009 Act only provocation not the fear of violence was considered as partial defence of loss of control. Over the years the courts adopted various epithets in their attempts to explain what they regarded as an appropriate response by the defendant, one of which was a loss of self-control.10 Although the Court of Appeal in Richens 11 stated that it was wrong to say that the defendant must have completely lost his self-control such that he did not know what he was doingfor that would be more indicative of automatism, which is a complete defencethere was never any clear definition of this subjective requirement. In contrast, it also felt that perpetrators of honour killings should not benefit from the new plea, but instead of expressly excluding this category as well it was content that the high threshold for the words and conduct limb of the partial defence will have the effect of excluding honour killings because such cases will not satisfy the requirements that the circumstances were of an extremely grave character and caused a justifiable sense of being seriously wronged71together with the exemption of cases where the killing resulted from a considered desire for revenge. From a purely pragmatic perspective it might be suggested that it was enough to leave it to the jury's good sense to decide whether a characteristic was so discreditable that it should not be used to enable the defendant to reduce his liability. Nevertheless, the major criticisms of the law arose from the loss of self-control and normative requirements. A setting out; a going forward; advance; progression. explain to [the jury] that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him.29 In other words, the defendant's sex and age might be taken into account even though they are only relevant to the defendant's capacity to exercise self-control, along with other characteristics which were the object of or relevant to the provocation. Wesley Moons and Diane Mackie (2007), Thinking Straight While Seeing Red: The Influence of Anger on Information Processing, Personality and Social Psychology Bulletin 33(5): 706720 at 717. The Law Commission and the government also rightly felt that judges ought not to have to direct juries on provocation (now loss of control) where the evidence is very poor.60 Otherwise, there is a greater risk of inconsistencies and verdicts which fly in the face of the law. Evidence of such abnormality may also be relevant where the defendant pleads loss of self-control (under the words and/or conduct trigger) if it is the object of the provocation. This chapter reviews some of the key elements and concerns about the old common law before turning to explore its statutory replacement. This Article questions this conventional wisdom by examining the various flaws embedded in provocation's loss of self-control theory. Some commentators doubted the law's restriction of provocation to human conduct: Mere circumstances, however provocative, do not constitute a defence to murder. By a combination of analysis of the structure and wording of sections 54 and 55 of the 2009 Act together with careful scrutiny of comments by government ministers about the purpose and intended effect of the new law, the Court of Appeal in Clinton 75 concluded that (i) sexual infidelity could not by itself constitute a qualifying trigger; but (ii) evidence of sexual infidelity may be admissible because of its relevance to the circumstances in which the defendant reacted to a (legally acceptable) qualifying trigger.76 The Court stressed the need to consider the context in which the loss of control occurred. The presiding judge held that this evidence was sexual infidelity, and as a result was not to be . Thus the principle expressed by Ashworth and adopted by Lord Diplock in Camplin prevailed; the law of provocation required a reasonable level of self-control from provoked defendants regardless of any mental abnormalities. ), The Oxford Handbook of Philosophy of Criminal Law (Oxford: Oxford University Press 2011), p. 15. See Mohammed [2005] EWCA Crim 1880; James [2006] EWCA Crim 14, [2006] QB 588. There may be evidence to suggest that an act was provoked immediately before the offence, however, this provocation must have been sufficient to make a 'reasonable man' do as the defendant did and lose self-control. As under the old law the assumption behind this is that there is a generally recognized and recognizable standard of tolerance and self-restraint that most people could and would exercise when provoked or fearful. Ibid. Ken Arenson, Mirko Bagaric, and Peter Gillies, Australian Criminal Law in the Common Law Jurisdictions: Cases and Materials (Australia and New Zealand: Oxford University Press 2011), p. 183. R Holton and S Shute, Self-Control in the Modern Provocation Defence (2007) 27 OJLS 49. As to the third of the principal problems with the old law, both the Law Commission and the government favoured the majority view in Holley and that of Ashworth and Lord Diplock, that there should be a general standard of self-control.59 Concessions to the defendant's capacity to exercise self-control should be made only by taking account of her age and gender. No 290, 2004, 5.19. Although concern about this was expressed by consultees, the government asserted that a loss of self-control is not always inconsistent with situations where a person reacts to an imminent fear of serious violence.84 Unfortunately, there was no comment on cases where the fear is not imminent. ), Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (London and New York: Routledge 2011), p. 54. As Ashworth pointed out, in cases such as Fantle 19 and Simpson 20 the courts admitted evidence of the background leading up to the fatal assault, whereas in Brown 21 Bridge J thought that the earlier events were irrelevant.22 Ashworth's view was that Bridge J was wrong: [o]ne straw may indeed break a camel's back,23 and the significance of the deceased's final act and its effect upon the accusedand indeed the relation of the retaliation to that actcan be neither understood nor evaluated without reference to previous dealings between the parties.24 His criticism of Bridge J was subsequently underlined when in cases of cumulative provocation the courts felt that the time lapse between the provocation and retaliation was merely relevant but not a conclusive factor.25 Indeed, as Ashworth again pointed out, there were occasions on which the sudden and temporary requirement seemed to have been completely overlooked, as in Pearson, where the defendant struck his abusive father twice with a sledgehammer even though there had apparently been no final act of provocation to which the defendant's action was a sudden response.26. In some cases the facts are likely to be such that it is clear whether these tests are or are not fulfilled, but there will be many where there is no such certainty.91 Thus, any benefits which may be derived by adopting a stricter normative requirement are, at least in the early years before any line of authority or clarity is established, likely to be at the cost of maximum certainty. Section 57 makes small changes to the law relating to the offence/defence of infanticide. Whereas the Law Commission considered that the loss of self-control concept had been so troublesome that it should be abandoned, and that undeserving cases would nonetheless be excluded by the safeguards they incorporated elsewhere in their recommendations, the then government took a more pessimistic and cautious approach. Emotions do not undermine reason in the ways offenders describe (and courts sometimes accept); nor do they compel people to act in ways they cannot control. The longer the defendant waits between the provocation and the killing the harder it will be to rely on the defence: here, the defendant had thought about the attack for a few hours before actually doing so. For a fuller discussion of these problems, see. Regrettably though, the courts appeared to be inconsistent in this respect. Step 1: Actual Loss of Self-Control - This is purely subjective. No 290, 2004, at 5.17. Although the common law provocation plea has been abolished, its replacement is loss of (self-)control, and so the concept is still enormously relevant under the new law. On 4 October 2010, the British Government abolished the controversial partial defence of provocation and introduced a new partial defence of loss of control. Bearing in mind that offenders serving a year or more in prison can expect to be released at the half-way stage,98 Ashworth indicated that some of these sentenceswhere the provocation is highseem very low.99 Provocation (now loss of control) manslaughter is a form of mitigated murder, and on average murderers can expect to spend at least 15 or 16 years in prison before being able to apply for release on licence.100 As Ashworth explained, the justification for the low sentences must be based on the offender's reduced culpability arising out of the loss of self-control and partial justification for that loss. We believe that where sexual infidelity is one part in a set of circumstances which led to the defendant losing self-control, the partial defence should succeed or fail on the basis of those circumstances disregarding the element of sexual infidelity (emphasis added); ibid, para 55. An angry strong man can afford to lose his self-control with someone who provokes him, if that person is physically smaller and weaker. See Law Commission, No 290, n 2 above, para 3.28. Inside the Minds of Angry and Controlling Men (New York: Berkley Books 2002), pp. Coroners and Justice Act 2009, s 56, abolishes the old provocation plea, and ss 54 and 55 replace it with loss of control. Community Sanctions and European Human Rights Law. In 2003 the Law Commission was asked to review the law, and following a consultation process, proposals for reforming the plea were put forward in 2004.2 The government then invited the Commission to undertake a wider review of the homicide law and their final report, which reiterated their proposals, was published towards the end of 2006.3 The new law, which is set out in the Coroners and Justice Act 2009, adopts some of the Law Commission's proposals, but there are some important differences between the structure and wording of those proposals and the new plea. Faculty of Law, Humanities and the Arts (Philosophy), The University of Wollongong, Wollongong, Australia, You can also search for this author in He described his loss of control in these terms: With that the walls and the ceiling just seemed to close in. - This does not require complete loss of self-control since the actus reus and mens rea are still present for murder. - It replaced the prior defence of provocation. The Commission did, though, acknowledge that EMED has formed the basis for a provocation defence in at least some American jurisdictions, and cannot therefore be dismissed as unworkable. As under the old common law, trial judges will have to direct juries very carefully about this distinction and which characteristics they can and cannot take into account, in what circumstances and for what purpose. One of the central aims of the new law is to reduce the number of cases in which defendants reduce their liability from murder to manslaughter and to limit the application of the new pleas to exceptional circumstances67hence the extremely grave character requirement. Whilst the use of ambiguous words and phrases may allow the courts a necessary measure of discretion, it will simultaneously risk injustice to some deserving defendants. The implication behind this was that the reasonable person would carry on behaving reasonably even after losing his self-control. Yet one obvious category of such casesbattered women who kill their abuserswould still have to surmount the loss of self-control hurdle, and previous experience clearly indicates that many of these women would not be able to rely on the new plea.82 Welcoming the Law Commission's proposal to include the fear of serious violence trigger, the government stated that it should be available even though the violence is not imminent.83 It is, however, not easy to imagine a situation in which the defendant was fearful of non-imminent serious violence and still lost his or (perhaps more likely) her self-control. To not get angry and to endure being insulted and to put up with the insults to ones friends is slavish. Aristotle, Nicomachean Ethics, IV.5, 1125b32ff. Even in cases which are less obviously less unsympathetic, there is still a fundamental problem about providing a partial defence in situations where a defendant has killed while basically in full possession of his or her senses, even if he or she is frightened, other than in a situation which is complete self-defence.57 At the same time, the government decided to remove the suddenness requirement to make plain that situations where the defendant's reaction has been delayed or builds gradually are not excluded.58. Criminal Law, Philosophy 13, 247269 (2019). Convocation Procession. Law Com No 304, n 3 above, paras 5.1546. Lundy Bancroft, Why Does He Do That? Part of Springer Nature. If successful, it reduces a potential murder conviction to one of manslaughter. In particular, we focus on post-2009 cases in which a jury rejected the loss of control plea and convicted of murder, where the sole or main evidence for the loss of control related to sexual infidelity. 7997. Then they have to consider the objective test, whether a person of the defendant's age and sex, with a normal degree of tolerance and self-restraint, and in the defendant's circumstances, might have reacted in the same or in a similar way. Where diminished responsibility is relied on, the burden of proof lies with the defendant and the burden must be discharged on a balance of probabilities;94 whereas it is for the prosecution to disprove beyond reasonable doubt a loss of self-control.95 Clearly, there is a real likelihood that these differences in the burdens and standards of proof will cause considerable difficulties for juries. If the law was trying to ensure that deserving defendants have shown a reasonable level of self-control, then youth should be regarded as relevant because there is good reason to maintain that a lower standard may be accepted. The collective body of persons engaged in a calling; as, the profession distrust him. Graduates who failed to register on time may not be able to join the graduates' procession and may be denied entry into the Chancellor Hall. For Aristotle, it is appropriate to get angry in response to injustice or wrongdoing, committed against oneself or against someone close to oneself. If the provoked killer completely lacked the capacity to control his acts, then it would not be just to punish him at all. [1963]Google Scholar A.C. 220, 231: "Provocation in law consists mainly of three elementsthe act of provocation, the loss of self-control, . The judge will have to identify which of the defendant's circumstances might be applicable. 4245 for a breakdown of circumstances where the defence is used and by whom. Morhall was an addicted glue-sniffer who was taunted about his addiction. ), Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (London & New York: Routledge 2011), p. 115. . Susan S.M. When the defendant complained about what she discovered, her unfaithful spouse justified what he had done, shouting and taunting the defendant in hurtful language that it is she (the defendant) who was really responsible for the infidelity. Robert Solomon, Emotions and Choice, in Not Passions Slave: Emotions and Choice (Oxford: Oxford University Press 2003), p. 13. In this seminal article, Ashworth argued that, with the possible exception of serious assaults, the gravity of any provocation can only sensibly be judged in relation to people of a particular class. On 4 October 2010 the old common law plea of provocation which, if successful, reduced murder to voluntary manslaughter, was abolished and replaced by the partial defence of loss of control. In addition, there may be an important difference between a man and a womanwho may be significantly weaker than her victimusing a weapon. [T]he sight of two persons indulging in sexual intercourse cannot properly be described as a grave provocationfor it would hardly provoke the unrelated intruder to anything more than embarrassmentwithout adding that it would be grave for someone who is married, engaged or related to one of the participants.31 In advocating a narrower range of personal characteristics to be taken into account than that which had been proposed by the Criminal Law Revision Committee,32 he submitted that (with the exception of age and gender) those which bore only on the defendant's powers of self-control should be ignored (unless, of course, they were the object of the provocation). See eg Ahluwalia (1993) 96 Cr App R 133 (CA); and Thornton (No 2) [1996] 2 Cr App R 108 (CA). Evidence of both loss of self-control and diminished responsibility might arise in the course of any individual case, even though following the Privy Council's decision in Holley, and certainly under the Coroners and Justice Act 2009, the two pleas should now be regarded as mutually exclusive: if pleaded in the same case they ought to be considered in the alternative.93 Where a person was suffering from an abnormality of mental functioning (as defined in section 52 of the Coroners and Justice Act 2009) which caused him to lose his self-control and strike out with fatal violence, then he may plead diminished responsibility, regardless of any provocation to which he may have been subjected. Oxford University Press is a department of the University of Oxford. The new law thus surely makes very heavy demands both of judges and juries. Jewell, where it was held that loss of control means a loss of the ability to act in accordance with con-sidered judgment or a loss of normal powers of reasoning.5 This seems to set the threshold for loss of control much lower than in Dawes and suggests that Dawes had lost self-control. implementation, and the significant differences between the Law Commission 's recommendations and the reforms implemented by the government. However, under s 23(2)(d), the loss of self . Response to Consultation CP(R)19/08, n 58 above, para 45. There was another, perhaps less obvious, objective dimension to the old common law which concerned the relationship between the provocation and the defendant's reaction to it. See Oliver Quick and Celia Wells (2012), Partial Reform of Partial Defences: Developments in England and Wales, Australian and New Zealand Journal of Criminology 45(3): 337350 at 344. But the Privy Council had the last word on the issue. The taunts and distressing words, that do not constitute sexual infidelity, may be treated as a qualifying trigger (under section 55(4)). Coroners and Justice Act 2009, s 55(6)(c). Moreover, there is the danger that a purely objective interpretation of these words will lead to injustice by denying the plea to deserving defendants such as battered women or very young defendants. Maria Parmley and Joseph G. Cunningham (2014), She looks Sad, But He Looks Mad: The Effects of Age, Gender, and Ambiguity on Emotion Perception, The Journal of Social Psychology 154(4): 323338. As well as losing self-control through one of the two triggers, the defendant will only succeed under the new law if a person of D's age and sex, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D. As a consequence of section 3 of the Homicide Act 1957, once there was evidence that the defendant had been provoked to lose self-control the matter then had to be passed to the jury, who would decide whether a reasonable person would have reacted as the defendant had. The amount of time that passes between the act of provocation and the actual killing must be very brief. to this: Does the provocation plea in a criminal homicide prosecution function as a partial excuse, based on the actor's passion and subsequent loss of self-control, or as a partial justification, based on the wrongful conduct of the provoker? Sorial, S. Anger, Provocation and Loss of Self-Control: What Does Losing It Really Mean?. ), Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (London & New York: Routledge 2011), pp. 2. The difficulty here is that there are no clear objective or scientific data about consistency in levels of self-control. Criminal Law and Philosophy the particular occupation for which you are trained. Lord Judge CJ illustrated this by reference to a situation in which the defendant returned home unexpectedly to find her spouse having consensual sexual intercourse with her sister. It should refer to the degree of loss of self-control, rather than the extent of the violence in D's reaction, as being in proportion to the gravity of the provocation.49 Thus, since the defendant must necessarily have been provoked so as to lose his self-control, it makes no sense to stipulate that the reasonable person would have done exactly what the defendant did.50 Our desire for proportionality is surely satisfied if the provocation was sufficiently grave to justify the angry loss of self-control which resulted in the use of fatal force. Ashworth's worry that some cases resulted in disproportionately short prison sentences being imposed, when compared to the minimum terms imposed in murder cases, is a further obvious example of his concern to maintain a principled approach. The reference to the defendant's impotence is clearly a reference to the case of Bedder v DPP (1954) 38 Cr App R 133 (HL) which was overruled on this point by Camplin. The shortest minimum term which a convicted murderer is likely to serve is about 6 years. Sarah Sorial. For example, where there is a short time between the provocation and the loss of self-control the defendant's culpability is likely to be less, but longer gaps between the two should not necessarily imply greater culpability in cases of cumulative provocation. Whichever trigger is appropriate, the defendant must have lost her self-control and not regained it at the time of the assault, and the jury must be made aware of what constitutes such a loss. There was a fundamental ambiguity in the law because it was uncertain whether it required an incapacity to control one's reaction to the provocation, or whether a mere failure to do so would suffice.12 Given the volume of criticism heaped upon the loss of self-control requirement, it is somewhat ironic that, as both Ashworth and the author discovered, the courts did not necessarily go to any great lengths to see that this theoretical condition was actually fulfilled in the individual case.13 Nevertheless, regardless of what sometimes happened in practice, whilst this stretching of the law as set out in Duffy may have enabled the courts to return what were perceived to be more just verdicts (eg, in cases of battered women who killed their abusive partners), Ashworth observed that it also weakened the excusatory force that derives from acting in uncontrolled anger.14 Clearly, any excusatory force would have to be founded on some other form of mental or emotional disturbance.