Should Anger Mitigate Murder? An examination of the Doctrine of Loss of Control

Abstract

On the 4th October 2010 the law of murder in England and Wales changed dramatically when the partial defence of Provocation was abolished by the Coroners and Justice Act 2009 and replaced with a new partial defence of Loss of Control. Until its abolition, the doctrine of Provocation was deeply entrenched within the criminal law. A feature in the legal systems of many other jurisdictions, Provocation was the law’s concession that passion aroused in a person can become so over-powering that they lose their self-control and become a killer.

Provocation had thus been said to occupy a unique role in making such a concession in the law of homicide for ‘human frailty’. But in spite of being a well-developed concept to make allowance in the law of homicide for heightened emotions and human frailty, Provocation was a perennial source of problems for the courts of England and Wales for it was born out of a violent society in the infancy of the criminal justice system.

This thesis explores the origins of Provocation and in particular how the Loss of Control doctrine has developed since its introduction in the 19th century into a fully-fledged partial defence. The aim of this thesis is to answer the following questions: 1) Why, if the criminal law is meant to do its utmost to dissuade people from killing one another, did we have a partial defence grounded in loss of control which permitted lethal retaliatory anger as a response? 2) What does having a new partial defence of loss of control based on anger and now fear really mean and what impact will it have? 3) Is it appropriate for the new statutory provisions to partially excuse/justify murder on grounds of loss of control?