The blood” in response to an act of provocation

The main objective of this
essay is to determine whether the Coroners and Justice Act 2009, has managed to
successfully highlight the issues that surrounded the defence of loss of
control (Provocation). We will also be talking about if the victims of domestic
violence and battered women’s syndrome are able to use the defence of loss of
control and to see if they are provided with protection. The growth of case law
regarding provocation will be analysed in order to know the effectiveness of
the new loss of control defence.

Currently, there is no precise
defence of domestic violence in English law, instead
of as an alternative, the courts use the fatal and non-fatal offences to
prosecute the defendant. The defence of “provocation was laid down in section 3
of the Homicide Act 1957″1,
which also showed how the courts started to consider the experiences suffered
by the defendants as a result of being subjected to domestic violence or
suffering from battered women’s syndrome. However, it was not enough and therefore,
the defence of provocation was subjected to a lot of criticism for not being
able to provide adequate protection to the victims of domestic violence. As a
result, the defence of provocation was replaced by the defence of loss of control
which was introduced under section 54 of the Coroners and Justice Act to
resolve these problems, yet is debatable
whether or not this has been achieved.

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It was argued in courts that
when applying the defence there was lack of consistency and this was due to the
fact that gender bias still existed. The defence of provocation is only available
where the killing had occurred “suddenly” and in “hot blood” in response to an
act of provocation by the deceased2.
Similarly, a report by Law commission showed that “abused woman kills her male partner in fear of further violence and the
situation of the male partner who kills in a sudden jealous rage”3. Therefore,
suggesting that defence was more positive for men as they are more likely to
lose their temper suddenly in comparison to women who were at a disadvantage as
they are more likely to kill out of fear of serious violence.

The purpose of introducing the
defence of loss of control was to try to reduce the criticism in this area of
law but it seems as though more problems started to surface. Those individuals
suffering from battered women syndrome or domestic violence were being
differentiated because of the requirements of the defence. As under the
old law, women were not given the security they required when raising the defence
of provocation. As seen in the case of R v Duffy
1949, where Devlin J
stated “that “Provocation
is some act, or series of acts, done by the dead man to the accused which would
cause in any reasonable person, 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 moment not master of his mind.”4
Suggesting that the existence of a sudden and temporary loss of control is
essential for the defence to be successful.

This was particularly problematic
for women to show that they lost their control in a sudden and for a brief manner
in comparison to men. Henceforth, it suggested that men profited from this
defence more than women, which was extremely prejudiced.

This point was explained by
the Law Commission when they said that the requirement of loss of self-control
is extremely biased towards individuals who have a fast temper. This was tricky
for those women who suffered a slow burn effect when being exposed to domestic
violence as seen in the case of R v
Ahluwalia 1993 “where
the defendant poured petrol and caustic soda onto her husband while he was
sleeping and then set fire to him. On
the night of the killing, he had
threatened to hit her with an iron and told her that he would beat her the next
day if she did not provide him with money”5.
The Defendant failed to use the defence of provocation on the grounds that her
loss of control was not sudden and temporary. As in the Law Commission report,
it was said that “Some of its rules have remained unaltered since the
seventeenth century, even though it has long been acknowledged that they are in
dire need of reform”6. Emphasizing that law needs to reformed soon. As it is
likely that women would be too scared to act in a sudden manner in front of her
abusive partner as women are generally not as strong as men so it is more
apparent that some kind of pre-meditation would be involved. Especially, since
the decision in Duffy, women were more likely to look for other defences to
reduce the offence of murder to manslaughter, such as diminished

Likewise, Jeremy Horder “puts
forward the idea that requirement of a loss of self-control should be abolished
and be further replaced with a requirement of ‘extreme emotional disturbance’
at the time of the killing”7. Also, there should be an inclination to
consent that whatever “exceptional morally troubling examples there may be,
there is, in general, insufficient justification for reducing murder to
manslaughter on the grounds of gravely provoked anger alone”8. Horder argues “that the role which
provocation should play in law lies, not in its role as a defence, but as a
mitigating factor to be considered in sentencing”9. “Provocation
ought no more to be regarded as inviting personal retaliation than a woman’s
style of dress invites rape”10. Nonetheless, a vast majority of researchers
were against to a test of emotional disruption, “primarily on the ground that it was too vague.11 The degree to which the existing law
will be considered as ‘successful’ is still a problem.

However, “The courts have responded by extending the concept
of sudden and temporary loss of self-control to include “slow-burn” cases but
at the cost of making the concept of loss of self-control less clear”12.Fortunately,
it can be seen that the new defence of loss of control is more beneficial for
women as now there is no longer a requirement to show that the loss of control
was sudden and temporary. Arguably, massive developments
have been made in this area of the law, nonetheless, many fundamental problems still
exist which indicates that gender discernment is still predominant.
Subsequently, if the Coroners and Justice Act 2009 is to offer a solution to
those suffering from domestic violence and battered women’s syndrome,
alterations still need to be made.

The defendants need to show that he lost his self-control
because of a qualifying trigger which is stated in section 55 of the coroners
and justice act 2009. It said “A qualifying trigger
may only relate to S.55 (3) Where D’s loss
of self-control was attributable to D’s
fear of serious violence from the Victim against Defendant or
another identified person. or S.55
(4) Where Defendant’s loss of self-control was attributable to a thing or things done or said (or
both) which constituted circumstances of an
extremely grave character, and caused D to have a justifiable sense of being seriously
wronged”13. This
is a subjective test and it is based on the fact what the defendant felt at the
time of the alleged offence. It also has to be shown that a person with a
normal degree of tolerance and self-restraint would have acted in the same
manner as the defendant which is an objective
test. In apply the objective test, it is necessary that the person that is
being compared to must be of the same sex, age and tolerance levels as the
defendant. This will reduce any kind of prejudice as the same type of women will be compared to achieve
a verdict. As it is obvious, men and women are most likely to react in
different ways, therefore, it is essential that comparator is of the same sex
and age if not then it is likely that the discriminations would continue.
however, loss of control based on fear can raise a lot of criticism. As merely
fearing violence is not sufficient to qualify as a trigger. As it must be
proven that the fear caused the defendants loss of control.

For example, women such as Ahluwalia can be said to lose her self-control because she genuinely
feared of serious violence as she did experience domestic violence in the past,
but the majority of the other women may have acted rationally and used more
force than what was necessary. “Whilst the angry
loss of self-control might reveal itself in shouting and stamping, loss
of self-control based on fear will manifest itself indifferently. 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?”14. Looking
at these issues, I believe that the Law Commission was correct when it considered it unsuitable for the notion of
‘loss of self-control’ to be retained as it does not precisely explain the response
of women in this kind of situations. Therefore,
it may not be adequate for shielding the
women who are in fact vulnerable as this defence is only accessible to those
who are fearful of harm that they panic and lose their self-control.

On the other hand, if we focus
on the second trigger mentioned in section 55 (4), it is obvious the “new
defence is more limited than the old one but it is still too accommodating”15.
This is because we need to ask questions
such as why the law still provides an excuse for killing someone in anger? The
words “extremely grave character” and “justifiable sense of being wronged” are
very broad and concerning. For example, in R
v Doughty (1986), where a father killed his baby because he was crying too
much would
no longer be covered under the new defence whereas, previously, the judge said
“the baby’s crying could amount to a provocative act within the meaning of s.3
of the Homicide Act 1957″16. Similarly, in the case
of R v Davies 1975, where the defendant
killed his wife after seeing her lover walk towards her place of work. “It was
held that the act of the lover walking to her workplace
could amount to a provocative act and the issue of provocation should have been
put before the jury. The provocative act need not be deliberately aimed at
provoking the victim, nor must the provocation come from the victim”17.

issue of sexual infidelity was considered in the case of R v Clinton (2012), where it was decided that sexual infidelity can
be used as a qualifying trigger. It was held that “Where other factors count as
a qualifying trigger, sexual infidelity may be taken into account in assessing
whether things are done or said amounted
to the circumstance of an extremely grave
character and gave D a justifiable sense of being wronged under s.55(4)”18.
 Despite, provisions prohibiting sexual
infidelity as a qualifying trigger, a lot of criticism were raised regarding
this matter. As seen in R v Mohammed
(2005), where the judge can find a qualifying trigger by finding his
daughter in bed with a man. This could be seen as extremely grave matter due to
his religious convictions and he may have a justifiable sense of being
seriously wronged. Even though, the jury could think this is more of a revenge
killing which is also banned by the legislation due to the lack of precision in
its phrasing. But at the end of the day,
why should killing someone in anger still be acceptable in the criminal law if
its goal is to stop individuals from murdering one another. Therefore, New
Zealand abolished their provision based on anger last year. Instead of
differentiating between different type of murders we should just take a stand
against any type of murder that is done because of losing their temper as it is
not a justifiable reason to be exempt from the punishment of killing someone.

sad irony is that in seizing the ideological initiative, Parliament created a
clause so unclear and impractical that the courts have been constrained to
forge a very broad interpretation”19.
The result is that the misperception has resulted in the “taking of a retrograde
This means that is more likely that the defendant will use sexual infidelity in
his defence and present it in front of
the jury which resulted in, section 55(6)(c) of the Coroners and Justice Act
has formed the worst of both realms. There are still underlying issues that
still exist and it is to be seen whether these issues will be emphasized. The
defendants who claim to have lost their self-control
may also realise that they might find it hard to rely on the new provision. The
new act does not for definite provide a solution for the victims of battered
women’s syndrome and domestic violence due to the fact that the qualifying
triggers do not apply.

it can be suggested that to remove sexual infidelity as a qualifying trigger
was an attempt made by the new law, which was not successful as it did not
actually happen. Arguably, questions may have raised as to what actually has
being achieved by introducing the new provisions if women are still being exposed
to prejudiced behaviour. Due to this, the new defence still is mostly male-dominated, which were not the objectives
of the 2009 act. As pre-existent discernment still exists in support of men,
the purposes of the 2009 Act have not been achieved and women are still being
treated harshly by men.

problem that needs to be dealt with is trying to differentiate between the
domestic violence cases which involve
real motive for revenge as a result of domestic abuse and the cases where the
defendant loses their self-control, several days after the abuse happened. As illustrated
by Carline; “acting due to a fear of serious violence defence is not about a
loss of self-control but based upon a recognition that some domestic violence
victims live in desperate situations in which extreme fatal action may seem to
be the only means by which to survive”21.
It is shocking that victims are not provided with the suitable protection under
the law, yet those who act in a sudden temper are. How is this fair for the victims
who are being abused by their partners and by under the law?

discriminations raise the questions on the law. As we know, individuals who are
being abused emotionally or physically by their partners is a fact of life. The
women are in agony, they feel constant humiliation by their partners and
constant fear of being inflicted to harm. But the on-going discussion on how
the law should legally react to a woman who kills her “abuser is significant
beyond the individual”22.
Women are more likely to be assaulted than men. “A high proportion, of (75%),
of recorded assaults on women take place in either the victim’s or the
assailant’s home. When it comes to homicide, female victims are far more likely
to have been killed by their cohabitant or ex-cohabitant than male victims”23.
In addition, it also revealed that female victims were more likely to be killed
by someone they knew. Over three-quarters,
(78%) of female victims knew the main suspect, compared with 57 percent of male victims.”24



more improvements need to be made to the law on loss of control due to the
massive confusion which still persists. Women were not being treated fairly
when it comes to establishing the defence
of provocation, resulting in discrimination and this is still the case in some
occasion as the new law on loss of control is still very much surrounded by
criticism in this area of law especially in establishing whether there was some
kind of pre-meditation involved. Women
who have constantly been suffering from battered women’s syndrome and domestic
violence were predominantly at disadvantage and changes in the future were
inevitable. It could be said, that women are still not able to rely on the new
law when they find themselves to be losing their control, therefore, it can be suggested that the 2009
act has been ineffective. Despite this, some changes have been made to the law
such as the removal of the requirement of sudden loss of control, yet still, some injustice exists. Even though several changes have been made to the law,
it is still debatable whether all the
problems have been eradicated.

1 Homicide
Act 1957


The Law Commission, ‘Partial Defences to Murder’ (2004), Law Com 290, Cm 6301 22

4 R
V Duffy 1949

5 R v Ahluwalia 1993

The Law Commission. ‘Murder, Manslaughter and Infanticide’ (2006), Project 6 of the Ninth Programme of Law
Reform: Homicide, Law Com No 304. 3

7 Horder, J. “Reshaping The Subjective
Element in The Provocation Defence”, Oxford Journal of Legal Studies (2005)
25(1) 129.

Ibid 130

9 Barnett, H. “Introduction to Feminist
Jurisprudence”, (Cavendish Publishing; London; 1998) 268

10 Horder, J. “Provocation and
Responsibility”, (Clarendon Press; Oxford; 1992) 197

11 Law Commission No 290
(2004) Partial Defences to Murder (London: HMSO)3.49

The Law Commission. ‘A New Homicide Act for England and Wales?’ (2006)
Consultation Paper No 177 26


Coroners and Justice Act 2009

Vincent McAviney. ‘Coroners and Justice Act 2009: Replacing Provocation with
Loss of Control’ (2010)

accessed 20 November 2017.


16 R v Doughty (1986),

17 R v Davies 1975

18 R v Clinton (2012)

Sam Main. ‘Loss of Control: Sexual Infidelity and the Reduction of a Charge of
Murder to Manslaughter’ (2009) The Student Journal of Law,
accessed 23 October 2017.


21 Carline, A. “Reforming Provocation:
Perspectives From The Law Commission and The Government”, Web Journal of
Current Legal Issues (2009) 2:

22 Wells, C. “Battered Woman Syndrome and
Defences to Homicide: Where Now?” Legal Studies (1994) 14(2)


24 Home Office (2012) “Homicides,
Firearm Offences and Intimate Violence 2010/11: Supplementary Volume 2 to Crime
in England and Wales 2010/11”. Accessed via: