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The Coroners and Justice Act 2009


The Coroners and Justice Act 2009 (CJA 2009) introduced ‘loss of control’ as a new partial defence to murder. Loss of control as a defence has replaced ‘provocation’. One of the reasons why the change was made in the existing defence of provocation was because of the gendered nature of the defence which allowed men to access it as a defence for killing female partners in a fit of jealousy while failing to accommodate the defence to suit a woman who killed her abusive partner. The criticism of provocation on these grounds was also found in the seminal work on the ‘battered woman syndrome’. With the new changes made by the substitution of provocation with the loss of control defence, it was hoped that the drawbacks of the provocation defence would be addressed and corrected through the changes. This essay discusses the important changes brought by the introduction of the new defence.

Loss of Control defence: Changes over provocation defence


The changes brought on by the CJA 2009 will allow the defence of loss of control to be used by defendants in murder cases, which if proved, will reduce the murder charge to a manslaughter. British courts have used earlier common law and later statutory principles to allow the use of provocation defence as a mitigating factor in murder cases. The defence could be claimed only if provocation needed to be temporary and sudden. Under the CJA 2009, section 54 (2), it is provided that loss of control need not be sudden. It is pertinent to note that provocation as a defence was difficult for women because it was hard for them to prove that they had acted under a sudden and temporary loss of self-control. In other words, anger of the man was more convincing in loss of self-control than the woman’s fear of an abusive partner.

CJA 2009, section 54 requires the presence of one of the two qualifying triggers for the defence of provocation to be applicable. One of the qualifying triggers is the fear of serious violence from the victim. The second qualifying trigger is the things done or said “which constitute circumstances of an extremely grave character, and cause to have a justifiable sense of being seriously wronged.” The qualifying trigger does not include sexual infidelity as per the express intention of the government to distance the loss of control defence from its predecessor.

The loss of control defence has a subjective test, which is that the defendant lost control due to the qualifying triggers; and it also has an objective test, which requires a comparison with a person with a normal degree of tolerance and self-restraint and what the actions of this person under similar circumstances would have been.

In many sexual infidelities related cases, provocation as a defence was successfully used by men, however, the gendered nature of the defence of provocation did not allow women to use this defence as successfully. The defence of provocation did evolve into the ‘battered woman syndrome’. However, by and large the use of sexual infidelities usually led to the defence being successfully used by male offenders.

In R v Clinton, Parker and Evans, the court held that the case law relating to provocation cases was not relevant to loss of control defence, clearly signifying a break from the common law of provocation. The judgement in Clinton case is given for three separate cases conjoined in appeal for the purpose of clarifying the loss of control defence. The court held that partner’s sexual infidelity will lead to precluding of loss of control as a defence.

The criticism against the new loss of control defence stems from the contention that the it does not necessarily provide a solution for women who are suffering from domestic violence and battered women’s syndrome. However, as compared to the defence of provocation, the new loss of control defence is more likely to provide successful mitigating factors to women in abusive relationships who are less likely to act violently in sudden loss of control (provocation) and more likely to act out of slow burn. In that sense, the new loss of control defence is an improvement on the older provocation defence.

However, the qualifying triggers are also restrictive in nature and women may still find it challenging to use the defence. Another criticism against the loss of control defence is that sexual infidelity argument is not completely precluded although it is now restricted and can be used only if the other qualifying factors are present. This is clear from the following excerpt from the Clinton judgement:

“[evidence of] sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of subsections 55(3) and (4).”


The new defence of loss of control has replaced the earlier defence of provocation. Provocation as a defence has been shown to suffer from the drawbacks of a gendered approach which saw men successfully using provocation as a defence in cases involving murder of infidel partners while women generally failed to use the defence for killing their abusive partners. As provocation had to be sudden and temporary, it was easier to prove it in cases of sexual infidelity and difficult to prove it in slow burn effect situations such as domestic violence. These defects have been corrected by the loss of control defence, wherein suddenness of loss of control is not relevant and sexual infidelity is precluded from defence unless it can be shown that there were the other qualifying triggers as well.

In spite of the changes made through the loss of control defence, the law is not as yet completely rid of its gendered effects. Sexual infidelity remains a relevant factor provided other qualifying triggers are also present. Moreover, the nature of loss of control and how it can be applied in cases involving domestic violence and battered women syndrome is yet to be seen.

List of Cases

    1. R v Ahluwalia [1992] 4 All ER 889.
    2. R v Clinton, Parker and Evans, [2012] EWCA Crim 2.
    3. R v Duffy, [1949] 1 All ER 932
    4. R v Thornton, [1996] 1 WLR 1174


    1. Edwards S, “Loss of Self-Control: When his anger is worth more than her fear”, in Alan Reed and Michael Bollander (eds.),
    2. Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Oxon: Routledge 2016)
    3. Horder J and Fitz-Gibbon K, “When sexual infidelity triggers murder: examining the impact of homicide law reform on judicial attitudes in sentencing” (2015) The Cambridge Law Journal (Online)
    4. Ministry of Justice, Murder, Manslaughter and Infanticide: Proposals for Reform of the Law: Summary of Responses and Government Position (London: Ministry of Justice 2009).
    5. Walker LE, “Who are the Battered Women?” (1977) 2 Journal of Women’s Studies 52

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