The neurotypical standard in loss of control fails the autistic defendant: The case for reform

The partial defence of loss of control, introduced by ss 54–56 of the Coroners and Justice Act 2009, reduces murder to manslaughter where a defendant kills after losing self-control in response to a qualifying trigger, provided a person of ordinary tolerance and self-restraint might have reacted similarly. This paper argues that the defence fails and excludes the autistic defendant. The modern evidence of emotional dysregulation, or ‘meltdowns’, in ASD contends that it is properly understood as a variation in human development rather than a disorder. Meltdowns represent an involuntary, neurologically grounded loss of behavioural control arising from a collapse of internal regulatory capacity. Two structural features of the defence exclude such a defendant. First, the objective standard in s54(1)(c), as explored in R v Rejmanski , measures the defendant against a neurotypical benchmark and, through s54(3), strips out the very neurological difference that explains the killing. Second, the qualifying triggers in s55 recognise only external moral wrongs and cannot accommodate a meltdown precipitated by internal dysregulation. Diminished responsibility offers no adequate alternative: it has an opposite burden of proof, pathologises autism and depends on a mode of self-articulation many autistic defendants cannot provide. Examining the recent decisions in De Zoysa and EE , this essay demonstrates how autistic defendants are channelled away from loss of control. It concludes that reform is required, and that the Law Commission’s current review of homicide is the opportunity to achieve that.