On the 4th October 2010 the law of murder in England and Wales changed dramatically when Provocation, which had been present in our legal system for centuries, was finally abolished. Despite that most of the criticism of the partial defence was primarily aimed at the ‘loss of self-control’ requirement which was regarded as being male-orientated and outdated, the Coroners and Justice Act 2009 elevates this concept into a fully fledged partial defence based on two qualifying triggers, a ‘justifiable sense of being seriously wronged’ and ‘a fear of serious violence’.
Under the previous common law defence of provocation, the defendant was required to have lost their self-control due to things said or done. Although the defence developed historically on the basis that the victim, having provoked the defendant, lost some of his claim to be protected by the law, the modern law of provocation did not require that the victim was to blame for the defendant’s loss of control, nor that he was even the cause of it. However under the new Loss of Self-Control defence the defendant must show that he or she had lost self-control as a result of the aforementioned qualifying triggers and that a person of the defendant’s age and sex with a normal degree of tolerance and self-restraint would have reacted in the same way.
Fear of Serious Violence Trigger
Up until now, loss of self-control has been constrained almost exclusively to a state of anger and rage which the Law Commission argued “elevates the emotion of sudden anger above emotions of fear, despair, compassion and empathy”. Jeremy Horder has called this “the loss of self-control dilemma” as the concept was limited only to “stereotypically male, violent reactions to provocation” to the exclusion of female reactions such as despair and fear. The universalising of the angry response thus presets the standard as inexorably male.
Section 55(3) of the Coroners and Justice Act 2009 defines the first qualifying trigger as being ‘loss of self control attributable to the defendant’s fear of serious violence from the victim against the defendant or another identified person. This is an entirely new basis of a partial defence to murder and allows defendants who are likely to fail in a plea of self-defence because they have acted disproportionately to a threat from the deceased. The first question to be asked of the new ‘fear of serious violence’ trigger is whether it adequately reflects the experience of abused women who kill?
Following the Law Commission’s recommendations in its 2006 report ‘Murder, Manslaughter and Infanticide’ the Government envisages the new defence of loss of control as a response to fear of serious violence will cover two scenarios: 1) where a victim of sustained abuse kills their abuser in order to thwart an attack which is anticipated but not immediately imminent; and 2) where someone overreacts to what they perceive as an imminent threat. This approach is to be supported for it is right that emotions other than anger should allow for mitigation in homicide cases where a concession for human frailty is warranted. As Clarkson and Keating argue “Just because one can trace the law back to much earlier notions of outraged honour it does not mean that anger should continue to be a privileged emotion.” Quite simply, no longer will killing out of anger be morally privileged over killing through fear and despair.
Further positive changes in the law are the removal of the ‘suddenness’ requirement in Section 54(2). This had long been a hindrance for women whose experience of provocation has long been described as more akin to a ‘boiling over’ than the male ‘snap’ response. Janet Lovelace argues that the Court of Appeal in Ahluwalia  assisted battered women who killed by linking the requirement of suddenness to the nature of the loss of control itself rather than to the relationship in time between provocation and the loss of control. However the court’s approval of previous authority including Duffy (1949) and Thornton (No.2)  where a delay of seconds was commented unfavourably upon by the judge, still left women in a difficult position. The removal of this requirement is therefore welcome as it does not reflect the experience of battered women, most often physically weaker than their victims who are forced to wait to act.
However, whilst ‘loss of self-control’ is thoroughly connected to emotions of anger, the two being natural partners; ‘loss of self-control’ based on fear does not sit well. The problem with this new defence is that merely fearing such violence is not a sufficient trigger. The fear has to have caused in the defendant a loss of self-control. Clarkson and Keating point out that whilst a few women such as Ahluwalia may have lost their self-control in the past, the vast majority will have only acted rationally but used more force than was strictly necessary in a commotion of events. Jonathan Herring argues that the prosecution in a case such as Ahluwalia might argue that a defendant’s actions before the killing might reveal she was acting in a calm and deliberate way rather than in the way one would expect a person who had lost their self-control. Indeed they might even argue she was acting in revenge, something which is banned outright in the Coroners and Justice Act 2009. Whilst ‘angry loss of self-control’ might reveal itself in shouting and stamping, loss of self-control based on fear will manifest itself in differently. These ways would be less identifiable, would the defendant have to cry, plead and wail for instance to show that they had lost their self-control?
With these issues in mind I would argue that the Law Commission was correct when it deemed it inappropriate for the concept of ‘loss of self-control’ to be retained as it does not accurately describe the reaction of women in this situation. Thus it may not be capable of protecting the women who need it most as the new defence is only open to those who are so fearful of violence that they panic and lose their self-control.
Justifiable Sense of Being Wronged
Turning now to the second trigger, Section 55(4) of the new Act states that the defendant’s loss of self-control can be attributable to a thing or things said or done (or both) which constituted circumstances of an extremely grave character and caused the defendant to have a justifiable sense of being seriously wronged. Whilst it is clear that this new trigger makes the loss of control defence more limited than the old common law of provocation I would argue that it is still too accommodating. It must be asked why has the trigger been retained? And why is it still acceptable for the law to provide an excuse for killings carried out (primarily by men) in anger?
The phrasing “extremely grave character” and “justifiable sense of being wronged” are vague and troubling. Some cases which would fall under the old provocation defence would no longer, for instance the case of Doughty  in which a father killed his crying baby would rightly no longer be covered. Though the specific provision banning sexual infidelity as a qualifying trigger, a measure which faced strong opposition in the Lords and even the Commons, is to be welcomed the defendant in the honour killing case Mohammed  might be able to establish such a qualifying trigger by virtue of his daughter’s continuance of a forbidden relationship. This could be seen as an “extremely grave” matter and in line with his religious convictions and culture he may have a ‘justifiable sense of being wronged’. Although it is likely that the jury may consider this a revenge killing, which is prevented by the legislation the second trigger is still fraught with uncertainty because of the lack of clarity in its wording.
But ultimately why should killing in anger still be justified in the criminal law if its main aim is to prevent people from killing one another. This was recognised last year by New Zealand which abolished classic provocation based on anger. Instead of trying to differentiate between acceptable and non-acceptable murders we should simply make a stand and say that it is never an appropriate response to getting angry.
Despite the issues with the ‘loss of control’ requirement the allowance for an emotion other than anger in the law is extremely welcome and Simester and Sullivan argue it would seem suitable to cover cases such as Ahluwalia and Thorton (No.2) which were given particular regard by the Law Commission. However the fact remains that some women who should fall under this new limb having suffered fear of serious violence will not have lost their self-control leaving them unprotected and likely to fall between the gap in the law with self-defence.
Whilst the ‘fear of serious violence’ qualifying trigger should be retained, without the ‘loss of self-control’ element, in order to protect battered women properly I argue that the ‘justifiable sense of being wronged’ limb needs to be abolished completely.