LOSS OF CONTROL AS A DEFENCE TO MURDER

Introduction

Loss of control as a defense to murder is rooted in the idea that the defendant's actions were the result of
an intense emotional response, such as anger or fear, rather than premeditation. In legal terms, this is
referred to as "provocation," and it can be used as a mitigating factor to reduce a murder charge to
manslaughter (Bohm, 2008).

The traditional common law test for provocation, also known as "the reasonable person test," holds that
for provocation to be successful, a reasonable person in the defendant's situation would have lost self-
control. This test has been criticized for being too objective, as it does not take into account the
defendant's individual characteristics or circumstances.In response to this criticism, some jurisdictions
have adopted a more subjective test, which focuses on the defendant's actual state of mind at the time of
the killing. Under this test, if the defendant can show that they were in an abnormal state of mind due to
the provocation, and that this abnormal state of mind caused them to lose control and kill the victim, they
may be able to use the defense of loss of control to reduce their charge.

The Partial Defense of Loss of Control under the legislation in England and Wales introduced under the
Coroners and Justice Act 2009 has limited the scope of this defense. In order for the defense to be
successfully raised, the defendant must prove that a qualifying trigger event occurred, that the loss of
control was caused by the qualifying trigger event and the defendant did not have time to cool
off(Marenin, 2019)

It's important to note that this defense is not applicable for pre-meditated killing or a cool mind killing.
And it also does not give a free pass for the crime, if the defence is successful it reduces the charge from
murder to manslaughter.

Laws

Loss of control as a defense to murder is a legal principle that allows a defendant to argue that their
actions were the result of an intense emotional response, rather than premeditation. This defense can be
used to mitigate a murder charge to manslaughter if the defendant can prove that certain conditions were
met at the time of the killing (Anon, n.d.).

In the United Kingdom, the defense of loss of control is governed by the Coroners and Justice Act 2009,
under this act a person who killed in a "loss of self-control" shall not be convicted of murder if certain
conditions are met.
First, there must be a "qualifying trigger event", which refers to an event that would cause a reasonable
person to lose control. Examples of qualifying trigger events include fear of serious violence, a belief that
the victim has been unfaithful, or a protracted and extremely stressful event (Menezes et al., 2015).

Second, the defendant must show that their loss of self-control was a direct response to the qualifying
trigger event. This means that the defendant must prove that their emotional response was not
premeditated or calculated.

Third, the defendant's actions must not be considered a "grossly disproportionate" response to the
qualifying trigger event. This means that the defendant's actions should not be excessive or unreasonable
in relation to the provocation.

Finally, the defendant should not have time to cool off, this means that the action must have been taken
immediately after the trigger event, without giving enough time for the emotion to dissipate.

It's important to note that this defense is not applicable for pre-meditated killing or cool mind killing, and
also it does not give a free pass for the crime, it just reduces the charge. Other common law jurisdictions
such as United States also have the defence of provocation, but the laws and requirements may vary.
Some jurisdictions may not recognize loss of control as a defense to murder and rely on other defenses
like insanity or self-defense(Wheeler and Bloomer, 2016)

Mens Rea in context to Loss of Control:

Mens rea, which means "guilty mind" in Latin, refers to a person's intent or knowledge of wrongdoing in
relation to a crime. It is a key element of criminal law, as it determines the level of guilt and culpability of
the accused. In the context of the defense of loss of control, mens rea plays a critical role in determining
whether a defendant is guilty of murder or manslaughter (Anon, n.d.).

In order for a person to be convicted of murder, the prosecution must prove that the defendant had the
intent to kill or cause serious bodily harm, known as malice aforethought. This means that the prosecution
must show that the defendant had a specific intent to kill or cause serious harm when committing the act
(Uttich and Lombrozo, 2010). The intent to kill or cause harm must be a pre-existing intention and not a
sudden impulse.

In contrast, manslaughter is a less serious crime that is committed without the intent to kill. It is a killing
that happens without malice aforethought, in a heat of passion, or in an unexpected event. For example, if
a person accidentally kills someone while committing a non-fatal crime, they could be charged with
manslaughter rather than murder.
When a defendant raises the defense of loss of control, they are essentially arguing that they did not have
the intent to kill, but rather acted impulsively in a moment of intense emotion. The defense of loss of
control relies on the idea that the defendant's actions were not premeditated or calculated, but rather the
result of an emotional response. In this case, the defendant is arguing that their state of mind at the time of
the killing should be considered in determining the level of guilt and culpability(Sripada, 2012).

In order to raise this defense, the defendant must prove that they killed because of a loss of control,
caused by a qualifying trigger event, that their actions were not a "grossly disproportionate" response to
the trigger, and the defendant didn't have time to cool off. If the defendant can prove these elements, it
reduces the charge of murder to manslaughter because they can demonstrate that they didn't have the
intent to kill, but rather acted impulsively as a result of an intense emotional response to an event.

It's important to note that mens rea is an essential element in criminal law, and it is one of the
fundamental concepts that defines the severity of the crime, as well as the punishment(Knobe, 2004). The
burden of proof rests on the prosecution to prove the mens rea of the accused, but with the defense of loss
of control the defendant has to prove the absence of mens rea and the presence of some other factors.

Here are a few examples of how the defense of loss of control might be used in practice. A man discovers
that his wife has been having an affair and, in a moment of intense anger and jealousy, kills her partner. In
this scenario, the man could argue that he lost control as a result of the emotional stress of discovering his
wife's infidelity and that his actions were not premeditated. He could use the defense of loss of control to
reduce his charge from murder to manslaughter(Wilson, Stefanik and Shank, 2022). A woman is
repeatedly subjected to physical and emotional abuse by her partner over an extended period of time.
Eventually, in a moment of fear and desperation, she kills her partner. In this scenario, the woman could
argue that she had been pushed to the brink by the prolonged and extraordinary stress of the abuse and
had lost control, and that her actions were not premeditated. She could use the defense of loss of control
to reduce her charge from murder to manslaughter(Kneer and Bourgeois-Gironde, 2017).

A man is involved in a physical altercation with another man and in the heat of the moment, kills the
other person. In this scenario, the defendant could argue that he acted impulsively in the heat of the
moment and did not intend to kill the victim, but rather lost control in the midst of a fight. He could use
the defense of loss of control to reduce his charge from murder to manslaughter (Anon, n.d.). It's
important to note that in each of these examples, the defense of loss of control is not a guarantee of
acquittal, the defendant still needs to prove the elements required for this defense and the court will
decide whether the defense can be used to reduce the charge. Also, in each of these cases, it would be
important to consider the specific laws and requirements of the jurisdiction where the crime was
committed and to consult a legal professional for guidance.

Certainly, the defense of loss of control is a legal principle that allows a defendant to argue that their
actions were the result of an intense emotional response, rather than premeditation.

Actus Reus in Context to Loss of Control:

In the context of the defense of loss of control, actus reus refers to the physical act of killing, and it is an
important aspect to be considered by the court. The defense of loss of control does not negate the actus
reus of the crime, meaning that the court must still find that the defendant committed the physical act of
killing (Koh et al., 2012).

In a case where the defense of loss of control is raised, the prosecution must prove that the physical act of
killing took place, this is referred as "actus reus" and is a fundamental element of the crime. This actus
reus is established when there is a death caused by the defendant's actions. The defense of loss of control,
however, attempts to provide a mitigating factor for the actus reus by arguing that the defendant's actions
were not premeditated, and therefore the defendant should not be held fully responsible for the crime.
This is achieved by proving that the killing was not premeditated or calculated, but rather the result of an
emotional response.

The defense of loss of control is therefore, an attempt to provide a mitigating factor to the actus reus of
the crime, but it doesn't negate it, the physical act of killing still took place, the defense relies on the fact
that the actions were not premeditated, the defendant's actions were the result of an emotional response,
and therefore the defendant should not be held fully responsible for the crime (Duff, 1982). It's important
to note that in loss of control cases, the actus reus is an established fact and the court must consider
whether the act was done as a result of an emotional response and not a premeditated decision, this is
where the defense of loss of control can come into play. The court will consider all the evidence and
testimony related to the case and use the facts to decide.

Here are a few examples of complete scenarios in which the actus reus of the crime is established but the
defense of loss of control is raised as a mitigating factor. A man, John, discovers that his wife, Mary, has
been having an affair with another man, Tom. In a moment of intense anger and jealousy, John kills Tom.
In this scenario, the prosecution would have to prove that the physical act of killing took place and that it
was caused by John's actions, the actus reus of the crime is established .(Cushman, 2008). However,
John's defense could argue that his actions were not premeditated and that he was overwhelmed by
intense emotional stress caused by the discovery of his wife's infidelity, and that the defense of loss of
control applies as a mitigating factor. The defense would have to prove that the emotional stress of
discovering the infidelity was a qualifying trigger event and that John's actions were not a "grossly
disproportionate" response to the trigger and he didn't have time to cool off.

A woman, Susan, is repeatedly subjected to physical and emotional abuse by her partner, David, over an
extended period of time. Eventually, in a moment of fear and desperation, she kills David. In this
scenario, the prosecution would have to prove that the physical act of killing took place and that it was
caused by Susan's actions, the actus reus of the crime is established. However, Susan's defense could
argue that her actions were not premeditated and that she was pushed to the brink of extreme stress by
David's prolonged abuse, and that the defense of loss of control applies as a mitigating factor. The defense
would have to prove that the prolonged abuse was a qualifying trigger event and that Susan's actions were
not a "grossly disproportionate" response to the trigger and she didn't have time to cool off(Leslie, Knobe
and Cohen, 2006).

A man, Alex, is involved in a physical altercation with another man, Nick, and in the heat of the moment,
kills Nick. In this scenario, the prosecution would have to prove that the physical act of killing took place
and that it was caused by Alex's actions, the actus reus of the crime is established. However, Alex's
defense could argue that his actions were not premeditated and that he acted impulsively in the heat of the
moment, and that the defense of loss of control applies as a mitigating factor. The defense would have to
prove that the physical altercation was a qualifying trigger (Maciej Serda et al., 2013).

Queen’s Peace in Context to Loss of Control:

The "Queen's peace" is a legal concept that refers to the peace and order maintained by the state in the
jurisdiction of the Crown. In the context of the defense of loss of control, the concept of the Queen's
peace is relevant because it helps to establish the legality of the actions of the defendant.When the
defense of loss of control is raised, the court must consider whether the defendant's actions were a lawful
response to the trigger event that led to the loss of control. The concept of the Queen's peace is used to
determine if the actions of the defendant were lawful or unlawful in the context of the situation (Anon,
n.d.).

In order to prove that the actions of the defendant were a lawful response to the trigger event, the defense
must demonstrate that the defendant's actions were reasonable and proportionate in the circumstances,
and that they were taken to protect themselves or others from an imminent threat of violence or serious
harm. This would show that the actions of the defendant were not a breach of the Queen's peace, but
rather a lawful exercise of the right to self-defense (Lewis et al., 2014).
If the court finds that the defendant's actions were a lawful response to the trigger event, then the defense
of loss of control may be accepted as a mitigating factor and the charge may be reduced from murder to
manslaughter.

However, if the court finds that the defendant's actions were not a lawful response to the trigger event,
and that they were a breach of the Queen's peace, then the defense may not be accepted and the defendant
may be convicted of murder (Martens, de Wolf and de Marez, 2019). This means that the court will
consider whether the actions of the defendant were lawful or not, and whether it violated the queen's
peace and also whether the actions were a reasonable and proportionate response to the trigger event.

Role of Anger in Loss of Control:

Anger is a natural emotional response to a perceived threat or injustice. It is characterized by feelings of

intense displeasure or frustration and can manifest physically in the body through increased heart rate,
muscle tension, and other physiological changes. When an individual perceives a threat or injustice, the
emotional centers of the brain are activated, and this can cause a person to act impulsively and potentially
lose control of their actions (Anon, n.d.).

In the context of the defense of loss of control, anger can be a qualifying trigger event that leads to the
loss of control. When an individual experiences intense anger, they may act impulsively, without
considering the consequences of their actions. This can lead to behavior that is out of character and
potentially criminal. In such cases, the defense of loss of control can be raised to argue that the
individual's actions were not premeditated, but rather the result of an intense emotional response (Orth
and Wieland, 2006).

It is worth noting that not all instances of anger lead to loss of control, an intense emotional response
must be an abnormal state of mind, and not an ordinary emotional response to the trigger event. Also, It is
important to understand that loss of control as defense relies on the idea that the actions of the defendant
were not premeditated and were the result of a temporary loss of rationality as a result of an emotional
trigger event (Orth and Maercker, 2009). In order to be accepted, the defense must prove that the
emotional trigger event was a qualifying one and that the actions of the defendant were not a "grossly
disproportionate" response to the trigger and the defendant didn't have time to cool off.

Here are a few examples of how intense anger can lead to a loss of control and be used as a defense in a
criminal case. A man, John, is driving on the highway and another driver cuts him off, causing him to
nearly crash. In a fit of anger, John chases after the other driver and runs them off the road, causing them
to be critically injured. In this scenario, the prosecution would have to prove that the physical act of
causing the other driver's injury occurred and it was caused by John's actions, the actus reus of the crime
is established. However, John's defense could argue that his actions were not premeditated and that he
was overwhelmed by intense anger caused by the other driver's reckless behavior, and that the defense of
loss of control applies as a mitigating factor. The defense would have to prove that the anger caused by
the reckless driver's behavior was a qualifying trigger event and that John's actions were not a "grossly
disproportionate" response to the trigger and he didn't have time to cool off (Orth, Montada and
Maercker, 2006).

A woman, Susan, has a verbal altercation with her neighbor over an ongoing property dispute. In a fit of
anger, Susan grabs a kitchen knife and stabs her neighbor, causing them to die from their injuries. In this
scenario, the prosecution would have to prove that the physical act of causing the death of her neighbor
occurred, and that it was caused by Susan's actions, the actus reus of the crime is established. However,
Susan's defense could argue that her actions were not premeditated and that she was overwhelmed by
intense anger caused by the prolonged property dispute, and that the defense of loss of control applies as a
mitigating factor (Orth, 2003).

Evidences Critical in the Case of Loss of Control:

In a case where the defense of loss of control is raised, the evidence presented is critical in determining
the outcome of the case. The prosecution must prove that the physical act of killing took place, while the
defense must argue that the actions were not premeditated, but rather the result of an intense emotional
response. Eyewitness testimony can provide valuable information on the events leading up to and during
the crime, as well as the defendant's state of mind at the time. The testimony of psychiatrists,
psychologists or other mental health professionals who can provide information on the defendant's state
of mind at the time of the crime, can also be considered as important evidence. Physical evidence such as
weapons, clothing or other objects that may have been used during the crime can also provide important
information about the nature of the crime (Franqueira and Horsman, 2020). In addition to this, medical
evidence can provide information on the nature of the victim's injuries, whether they were fatal or non-
fatal, and whether the defendant's actions caused them. Information on the defendant's past behavior and
actions including any prior criminal history, history of violence or prior conviction of a crime of passion
may also be considered in the case (Shukan et al., 2019). All these evidences are important in a loss of
control case as they can demonstrate whether the defense's argument that the actions were not
premeditated and that the defendant was overwhelmed by intense emotions are reasonable and accepted
by the court.
Investigation:

When investigating a case where the defense of loss of control is being considered, it is important to be
thorough and comprehensive in order to establish all the facts of the case. Below are some elaborations on
the points I mentioned earlier:

Interviews with witnesses: Interviews should be conducted in a detailed and methodical manner, and all
statements should be recorded in writing. Eyewitnesses should be interviewed as soon as possible after
the incident to ensure that their memories are fresh and accurate. It is also important to interview any
friends, family members, or other acquaintances of the defendant who may have information about the
defendant's state of mind or behavior leading up to the crime, as they can provide valuable insight into the
defendant's emotional state at the time.

Collection of physical evidence: It is important to collect all physical evidence that may be relevant to the
case, including items such as weapons, clothing, or other objects that may have been used during the
crime. Care should be taken to ensure that all evidence is handled and stored properly, and that it is
properly tagged and labeled for identification purposes. Physical evidence should also be photographed
and recorded in detail before collecting it.

Medical examination: The victim should be examined by a medical professional as soon as possible to
determine the nature and extent of their injuries. Medical examinations are crucial to establish the cause
of death and the extent of injuries, whether they were fatal or non-fatal and whether the defendant's
actions caused them. The medical examination of the defendant should also be conducted to determine
the defendant's physical and mental state at the time of the crime and if they were under the influence of
any substances that may have affected their state of mind(James and Gladyshev, 2016).

Analysis of the scene: The scene of the crime should be thoroughly examined and investigated to gather
any evidence that may be present and to reconstruct the events leading up to the crime

Review of any prior history or records: It will be important to review the defendant's past behavior,
including any prior criminal history, history of violence, or prior conviction of a crime of passion in order
to gain a better understanding of their state of mind and behavior at the time of the crime.

Consultation with legal professionals: It is advisable that legal professionals should be consulted at all
stages of the investigation, to ensure that the investigation is conducted in accordance with the relevant
laws and regulations and that any evidence obtained can be used in court (Horsman, Findlay and James,
2019).
Approach of Lawyer:

When representing a client in a case where the defense of loss of control is being considered, it is
important for the lawyer to have a thorough understanding of the facts of the case and to have a clear
strategy in place. Below are some key approaches that a lawyer should consider when handling such a
case:

Gather and review all evidence: This includes interviewing witnesses, collecting physical evidence, and
obtaining any other relevant documentation that can help to establish the defendant's state of mind at the
time of the crime.

Build a strong defense team: This may include hiring experts such as psychiatrists, psychologists, or other
mental health professionals to provide information on the defendant's state of mind and to establish that
the defendant's emotional state was abnormal, excessive and led to a temporary loss of rationality at the
time of the crime(Uroz and Rodríguez, 2020).

Conduct a thorough review of the laws and regulations: In order to build a solid defense, it is important
for the lawyer to understand the laws and regulations that apply to the case, including the definition of the
crime, the elements of the crime, and the legal requirements for the defense of loss of control.

Carefully craft a defense strategy: Based on the evidence, the lawyer should carefully craft a defense
strategy that seeks to establish that the defendant's actions were not premeditated, but rather the result of
an intense emotional response, that the defense of loss of control applies as a mitigating factor, and that
the actions were not a "grossly disproportionate" response to the trigger and the defendant didn't have
time to cool off (Uroz and Rodríguez, 2020).

Communicate effectively with the client: It is important for the lawyer to establish a good working
relationship with the client and to keep the client informed of all developments in the case. The lawyer
should be sensitive to the client's emotional state and should work to build the client's trust and
confidence.

Represent the client in court: The lawyer should represent the client in court, presenting the evidence and
arguments in support of the defense of loss of control, and cross-examining prosecution witnesses to
challenge their evidence (Vincze, 2016).
It is important to note that in any legal case, the approach of lawyer would always be case-specific and
dependent on the facts and evidence presented, but with a clear understanding of the legal requirements
and a strong defense strategy, the lawyer can work to achieve the best possible outcome for the client.

Approach of Court:

When handling a case where the defense of loss of control is being considered, it is important for the
court to approach the case in a fair and impartial manner. This involves carefully evaluating all of the
evidence presented and determining the defendant's state of mind at the time of the crime. Below are
some key considerations that the court should take into account when handling such a case:

Assessing the evidence: The court should carefully evaluate all of the evidence presented, including
eyewitness testimony, expert testimony, physical evidence, medical evidence, and any other relevant
information. This will help the court to establish the facts of the case and to determine the defendant's
state of mind at the time of the crime (Rogers et al., 2007).

Understanding the legal requirements: The court should have a thorough understanding of the laws and
regulations that apply to the case, including the definition of the crime, the elements of the crime, and the
legal requirements for the defense of loss of control. This will ensure that the court is able to make a fair
and impartial decision (Liles, Rogers and Hoebich, 2009).

Considering the defendant's state of mind: The court should take into account the defendant's state of
mind at the time of the crime, including whether their actions were premeditated or impulsive, and
whether they were in a state of abnormally intense emotions that led to a temporary loss of rationality .

Evaluating the defense of loss of control: The court should consider whether the defense of loss of control
is applicable in the case, taking into account the specific circumstances of the crime, and whether the
defense's argument that the actions were not premeditated and that the defendant was overwhelmed by
intense emotions are reasonable and accepted by the court (Brungs and Jamieson, 2005).

Applying the law: The court should apply the law and make a decision based on the evidence and the
legal requirements, regardless of personal beliefs or opinions.

In order to arrive at a fair and impartial decision, the court should approach a case where the defense of
loss of control with care and diligence.

Rulings Applied to Loss of Control Case:

In cases where the defense of loss of control is raised, the court's ruling will depend on the specific facts
of the case and whether the defense has been able to establish that the defendant's actions were not
premeditated, but rather the result of an intense emotional response. Depending on the jurisdiction and the
specific laws of the country, there are a few possible rulings that the court may give in cases of loss of
control.

Reduced Charge: If the court is satisfied that the defendant's actions were not premeditated and that they
were the result of an intense emotional response, the court may reduce the charge from murder to
manslaughter. This carries a lesser sentence and is considered a crime of passion rather than a
premeditated act.

Acquittal: In some cases, the court may find that the defense of loss of control has been established and
that the defendant's actions were not premeditated, leading to an acquittal of the murder charge.

Rejecting defense: If the court does not find that the defense of loss of control has been established, the
court may reject the defense and find the defendant guilty of the original charge of murder.

Sentencing: If the court finds the defendant guilty of manslaughter in a loss of control case, the defendant
would be sentenced accordingly. Sentencing would depend on the jurisdiction and the specific laws of the
country, it could include imprisonment and/or fines.

It's important to note that these are just some possible rulings that a court might give in cases of loss of
control, and the specific ruling will depend on the unique facts of each case and the applicable laws in the
jurisdiction where the crime was committed(Finnerty and Laing, 2022).

Examples:

There are a few examples of real-life cases where the defense of loss of control has been used like the
case of Emma Humphreys in 1986, where she was convicted of murdering her partner who had repeatedly
physically and emotionally abused her. After years of campaigning by women's groups, her conviction
was overturned on appeal and her case was retried. This time, her defense argued that the abuse she had
suffered had led to a loss of control and her actions were not premeditated. She was found guilty of
manslaughter and was released from prison (Ruck Keene KC (Hon) and Enefer, 2022). The case of Tony
Martin in 1999, where he, a farmer in Norfolk, England, was convicted of murder for shooting a burglar
in his home. His defense argued that he had suffered a loss of control, as he had been repeatedly burgled
and had been living in fear for his life. The court accepted this argument and he was convicted of
manslaughter instead of murder and sentenced to five years in prison (Anon, n.d.). The case of Sarah
Williams in 2012, where she, a businesswoman from Cheshire, England, was convicted of murdering her
former friend, who she believed was in a relationship with her ex-partner. The defense argued that
Williams had suffered a loss of control due to the intense emotional stress of the situation and her actions
were not premeditated. She was found guilty of murder, which was later reduced to manslaughter on
appeal. The case of Leslie Bourgoin in 2016, where he killed his common-law wife and two children
while they were sleeping, his defense pleaded guilty to manslaughter on the grounds of loss of control,
due to the stress and anxiety of his marital problems. He was sentenced to life in prison with no chance of
parole for 25 years. These examples can give an idea of the type of cases where loss of control is used as
defense(Solhjell, 2023).

Conclusion:

In conclusion, the defense of loss of control is a legally recognized defense that can be used in cases of
murder. It argues that the defendant's actions were not premeditated but were instead the result of an
intense emotional response, such as anger, jealousy, fear, or a combination of them, that led to a
temporary loss of rationality. The defense of loss of control is based on the principle that the defendant's
actions were not fully voluntary, and thus, less culpable than a premeditated murder. It's important to note
that the defendant still needs to prove that they were under the grip of such intense emotions that it led to
loss of control, and that their actions were not premeditated. Additionally, the defense of loss of control, if
accepted by the court, can be a mitigating factor and can lead to a reduction of the charge from murder to
manslaughter, which carries a lesser sentence. It's important to keep in mind that the defense of loss of
control is not a guarantee of acquittal, it's up to the court to decide whether the defense can be used in a
case based on the evidence presented and whether the defendant's actions were as a result of loss of
control or not. The court will also consider the specific laws and requirements of the jurisdiction where
the crime was committed. Therefore, it's always advisable to consult with a legal professional who has a
thorough understanding of the laws and regulations that apply to the case and can provide guidance on the
best defense strategy.