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Loss of Control Evaluation
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An in-depth evaluation of the law on loss of control. The plan provides a balanced argument and is of an A* standard.
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IntroductionCAJA 2009 5. 54 (1) states that where the defendant kills or is a party to the killing of
another, the defendant shall not be convicted of murder if:
1. The defendant's acts and omissions in doing or being a party to the killing resulted
from his loss of self-control (s. 54 (1)(a));
2. The loss of self-control had a qualifying trigger (5.54 (1)(b)); and
3. A person of the defendant's sex and age, with a normal degree of tolerance and self-
restraint and in the circumstances of the defendant, might have reacted in the same
or in a similar way to D (s. 54 (1)(c)).
Loss of Control
Need not be Sudden
There is an improvement with the first requirement, because the loss of self-control
no longer needs to be sudden.
In R v Ahluwalia (1992) D could not rely on the defence of provocation because there
was a time lapse where she waited for her husband to fall asleep before setting his
feet on fire. This illustrated the problems with the old defence of provocation,
because it did not cater for women who suffered a 'slow burn' reaction rather than a
sudden snap. CAJA 2009 recognises 'slow burn' reactions of battered wives.
The fact that the loss of control does not need to be sudden will help battered
women, but if there is a large cooling off period, this will look like revenge and is an
excluded matter. 5 days was too much of a time lapse in R v Ibrams and Gregory
(1981) but the D was allowed the defence where there was a gap but no considered
revenge in R v Bailie (1995)).
Qualifying Trigger
Fear
The second requirement is that there is a "qualifying trigger". The first qualifying
trigger is where the defendant fears serious violence from the victim against the
defendant or another identified person; s.55(3).
This particular qualifying trigger is an improvement on the law because it will assist
women who fear violence at the hands of an abusive partner and subsequently kill,
like the case of R v Ahluwalia (1992).
Anger
A further qualifying trigger is things done or said or both together. However, they
must be of an extremely grave character, and cause the defendant to have a
justifiable sense of being seriously wronged.
This is an improvement on the old law of provocation which did not have the grave
and wronged restrictions. It is wrong that a crying baby could found the defence of
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