Jamshid Gholamloo; Sepideh Mirmajidi
Abstract
Loss of self-control defense is a new and special defense for perpetrators who have lost their self-control as the result of the victim’s provocative conduct and consequently ...
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Loss of self-control defense is a new and special defense for perpetrators who have lost their self-control as the result of the victim’s provocative conduct and consequently murder him for the victim’s provocative conduct. In the event of the successful inference to this partial defense they charge with murder and are convicted of manslaughter. This defense basically is propounded in the law of countries with common law and according to the coroners and Justice Act 2009, it is obviously introduced in the criminal rules of the UK and has replaced defense of provocation. The main problem of this paper is to study why defense of provocation was abolished and what the quiddity and provisions of loss of control are. The analysis of this problem with a comparative approach to the penal code of Iran and with the descriptive-analytic approach showed that the new defense it has been attempted to remove the traditional defense of provocation. Although in both defenses the loss of control is the basic element for example, fear of serious violence is not counted as a qualifying trigger in defense of provocation now it is accepted the same as the cause of passion (anger trigger) and the provision of loss of control being sudden has been omitted. Still, in practice, there are some obstacles and problems in adducing this defense for some perpetrators the most important is too much emphasis on loss of control and applying the subjective criterion to its approval. It seems that perhaps consciously making a decision and the solution of the most details has been assigned (allocated) to judges and jury that with considering all facts in every file they make a fair decision. Despite not observing the loss of self-control defense in the penal code of Iran, trials have noticed it and sometimes attempt with their extended interpretations to apply their legal capacities to convert murder to manslaughter and to release the perpetrators from capital (death penalty) punishment.
