On October 4th, s52-56 of the Coroners and Justice Act 2009 came into force.
These sections have a significant impact on the defences to murder; namely clarifying the defence of diminished responsibility and abolishing the common law defence of provocation and replacing it with a partial defence of “loss of self-control”.
The changes to the defences to murder in the Coroners and Justice Act 2009 were heavily influenced by the Law Commission’s reports no: 290 ‘Partial Defences to Murder’ and no 304 ‘Murder, Manslaughter and Infantcide’.
The Law Commission in its first report stated that there were significant problems with the defence of provocation, as it did not appear to be underpinned by any clear rationale and additionally that the concept of loss of self-control had become very troublesome. In particular there were serious problems with applying the loss of self-control requirement to “slow burn” type cases. The Commission in their no 290 report proposed that the law on provocation be re-defined to that of ‘gross provocation’, which was revisited and affirmed in their Report No 304.
The Commission also proposed in 290 and 304 that the defence of diminished responsibility should be modernised as it was not reconcilable with current medical definitions and required improvement in order to be accessible to medical experts, whose testimony is crucial to the legal validity of the defence.
s52 of the Act significantly improves on the definition given by s2 of the Homicide Act 1957. The new definition includes that the “abnormality” requirement may arise from a recognised medical condition, as well as allowing more weight to be attached to the expert testimony of medical professionals in determining under 1A whether the defendant can form a rational judgment or exercise self-control. This is a much welcome development as the old law had caused much confusion on this appoint to appear. Moreover it would seem that this new definition is consistent with the House of Lord’s decision in R v Dietschmann.
The old defence of provocation contained in s 3 of the Homicide Act 1957 has been abolished and replaced with the new partial defence to murder – loss of self control by s 55 and 55 of the Coroners and Justice Act 2009. There are a few similiarities between the old and new law and of course some stark differences. The old law contained in 3 of the Homicide Act 1957 was largely based on Devlin J’s famous dicta in R v Duffy
“Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable man, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the mement not master of his mind”
The Homicide Act revised the common law rule, as to when the provocation defence would arise. The loss of self control must have been sudden and temporary, therefore excluding the opportunity for defendant’s suffering from domestic violence the chance to raise their defence if their retaliation resulted in the death of their abuser and the loss of self control was not sudden and temporary.
The Act further imposed two conditions on raising the defence; the first requirement was subjective, was the defendant provoked to lose his self control and secondly the objective requirement – was the provocation enough to make a reasonable man do as he did. The objective requirement caused controversy in the Courts as to what characteristics the ‘reasonable man’ should have, in particular the decision of the House of Lords in R v Morgan Smith and of the Privy Council in Holley were at odds with each other, between a stringent and more flexible approach, the stringent test in Holley however prevailed.
Under the new partial defence of loss of self control s54 CJA 2009 resembles the old law of provocation with a few differences. In order to raise the defence the loss of self control must have a qualifying trigger (a subjective test) and a person of the defendant’s sex and age with a normal degree of tolerance and self-restraint and in the same circumstances might have reacted in the same or similar way to the defendant (an objective test akin to Camplin). A main requirement from the previous law has however been removed, the loss of self control no longer needs to be sudden, this may make it easier for those who suffer from domestic violence to raise a defence of ‘loss of self control’ instead of being stigmatised with having to raise a defence of “diminished responsibility”. Yet the nexus between the loss of self control and the killing is somewhat retained, as the defence cannot be raised if it is considered that the defendant acted in revenge. Moreover the trial judge is given an important role in deciding whether there is sufficient evidence to raise the defence on which a jury properly directed could reasonably conclude that the defence applies.
The Qualifying Trigger
Defined in s55 the qualifying trigger amends the subjective test under the old law. Within this section as prescribed conditions as to when a defendant may have a loss of self control. The can be achieved by a number of ways; the defendant’s loss of self control was due to a serious fear of violence, was attributable to a thing done or said which constituted either circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wrong. Both of these requirements are however negated should the defendant incite the actions to be caused and then seek to rely on them as an excuse. Additionally sexual infidelity (previously considered to be the grossest form of provocation) is no longer to be regarded as an adequate reason.
The addition of a qualifying trigger is desirable as it prescribes what is likely to give rise to a defence of loss of self control. However upon close analysis these changes could seem little more than a glossy exterior. The exclusion of sexual infidelity seems to ignore that possibilities of other acts of gross provocation that may occur, such as honour killings when a defendant may feel they have been ashamed by the act of a member of their family. Should this have also not been said to not give rise to the defence?
Whilst the changes to the defence of diminished responsibility and the new statutory loss of self control aptly bring in the proposals of the Law Commission, the amendments still feel somewhat inaccessible. There are elements of the new loss of self control defence which could cause problems in the courts. What if a defendant felt that he had been justifiably wronged yet did not have a loss of temporary control? Has the loss of control requirement lost its emphasis? With there no longer being a requirement for the loss of self control to be sudden, how will the courts differentiate between cases where the real motive was revenge for domestic abuse rather than a loss of control merely days after the abuse had happened?
The changes brought on by the CJA 2009 still require some explanation and surely the Courts will be more than helpful in deciding what the new changes mean.