Loss of Control

CPS legal guidance on homicide sets out the structure prosecutors must apply: the loss of control defence has three components — see section 54(1)(a)(b) and (c) Coroners and Justice Act 2009 — namely loss of control itself, a qualifying trigger, and an objective test asking whether 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 a similar way. Unlike a complete defence such as self-defence, a successful plea reduces murder to manslaughter rather than producing an acquittal.

The trial judge must consider the three components sequentially, and if sufficient evidence is raised the burden shifts to the prosecution, who must then disprove loss of control beyond reasonable doubt. The guidance directs prosecutors to invite the judge to withdraw the defence from the jury wherever there is insufficient evidence on any one of the three elements, citing Court of Appeal authority emphasising that this filtering role belongs to the trial judge before the issue reaches the jury.

A defendant's own voluntary intoxication cannot found the loss of control defence: self-induced intoxication is to be disregarded for the purposes of this partial defence. The guidance draws a subtler line, however, where mental ill health or a genuine substance-dependency problem forms part of the circumstances the defendant was taunted about — different considerations would arise if a defendant had a severe problem with alcohol or drugs and was mercilessly taunted about the condition, to the extent that it constituted a qualifying trigger, since the underlying problem then becomes part of the circumstances for the jury to weigh rather than simply disregarded intoxication.