1. 1
CAN IT BE SAID THAT THE DEFENCE OF LOSS OF
CONTROL IN THE CORONERS AND JUSTICE ACT 2009
ACTUALLY PROVIDES BETTER LEGAL PROTECTION
THAN THE OLD COMMON LAW DEFENCE OF
PROVOCATION DID FOR BATTERED WOMEN WHO
KILL, OR IS IT SIMPLY THE SAME CONTROVERSIAL
DEFENCE UNDER A NEW NAME?
BY
NICOLE MOYO
Submitted for the Honours Degree of LL.B 2015
Nottingham Trent University
Word count: 5, 975
3. 3
I HEREBY CERTIFY THAT THIS PROJECT PRESENTS MY OWN WORK AND THAT NO USE
HAS BEEN MADE OF ANY SOURCE, MATERIALS OR PERSONAL ADVICE APART FROM
THOSE CITED HEREIN AND THAT IT DOES NOT EXCEED THE STATED WORD LIMITED
REFERRED TO IN THE PROJECT GUIDANCE NOTES.
SIGNATURE: N.Moyo
NAME: Nicole Moyo
COURSE: LL.B Law Full-Time
DATE: 16/04/2015
4. 4
Introduction
This dissertation will be an analysis of the effectiveness of the criminal partial defence of loss
of control, which was implemented in 2010 by the Coroners and Justice Act1
(hereafter CJA),
and whether it was actually an improvement from the previous common law defence of
provocation. The partial defence, which can only be used against murder, is sometimes used
in cases surrounding domestic violence and abuse. As such an important issue, the laws
surrounding the abuse and killing of partners needs to be flawless, or at least as close to that
as possible. Various controversies have been raised about the previous defence before it was
actually repealed; the most prominent criticism being that of gender bias.2
As a result, one of
the main focuses of the reform was to minimise gender bias in the law’s operation.3
The
gender bias being that the old defence seemed only to work for men who had killed their
female partners, asserting that they had angered and provoked them in ways which will be
discussed below (most commonly sexual infidelity).4
This discussion will assess whether this controversy was appropriately addressed in the new
defence and what room, if any, was made for battered women (who were not always able to
rely on the old defence) to be able to use the new defence effectively. The way in which this
will be addressed and approached is through analysis of the operation of the old law of
provocation, of which the case of R v Duffy5
is considered the “bedrock”6
, and the reasons
that the led to the reform. The practicality of the new partial defence will then be assessed
and in doing so, old cases, which were heard under the old law, will be looked and a
conclusion will be drawn as to what the possible outcome of these would be if they were now
1
2009 c. 25
2
Fitz-Gibbon, 2013
3
Ibid.,
4
HC Deb, 3 February 2009
5
[1949] 1 All E.R. 932
6
Edwards, 2009
5. 5
tried under the new law. Special attention will be paid to particular aspects of the new
defence. Namely, the fact that under the new law, the loss of control need not be sudden,7
that
fear can be a qualifying trigger8
and, the assertion that sexual infidelity is to be disregarded as
a “thing said or done”.9
These aspects of the reform carry great importance because, it could
be argued that, they are the core of the stigma of gender bias and the reasons why battered
women may now be able to rely on the defence much more. In assessing the adequacy of
domestic law, other jurisdictions, such as Australia, will be considered comparatively; they
will be looked at in order to assess the methods other countries are adopting to deal with such
a prominence. Having critiqued the law and evaluated its positives and negatives, there will
be an exploration of what further changes, if any, could be made to improve.
7
Op. cit. n. 1, s 54(2)
8
Op. cit. n. 1, s 55(3)
9
Op. cit. n. 1, s 55(6)(c)
6. 6
Before the change
In order to truly assess the adequacy of the new partial defence, one must look the previous
law. Under section 3 of the Homicide Act10
, there had to be an act or words that were spoken
that caused the defendant to lose his self-control. It was up to the jury to decide whether that
provoking factor was enough to make a reasonable man lose control. In making that decision,
the jury was to have regard to all that was said or done as far as they think it is relevant in
having an effect on a reasonable man. This meant that after the defence was put to the jury, it
was up to them to decide on how operative it would be for the defendant.11
A downfall of the provision was that of gender bias - the defence favoured men as they are
more likely to react impulsively, displaying what is more suited to being a ‘loss of control’.
Fitz-Gibson noted this in saying that “the loss of control requirement reveals the gender bias
inherent in the formulation of the provocation defence”.12
Mitchell also says that the law of
provocation “reflected a typically male reaction to provocation, but one which women were
very unlikely to display”.13
It is arguable that, albeit not blatantly on the surface, the way in
which the law operated was a hangover effect of historical patriarchy. Feminists have even
gone so far as to say that the law legitimised male violence against women through its failure
to provide adequate protection for women.14
Although not directly, the Law Commission recognised this gender bias in saying that “The
defence of provocation elevates the emotion of sudden anger above the emotions of fear,
despair, compassion and empathy.”15
The Law Commission, later on, further recommended
10
1957 c.11
11
Ibid., s3
12
Op. cit. n. 2
13
Mitchell, 2011
14
Kenny, 2007
15
Great Britain Law Commission, 2003
7. 7
some changes to the law of provocation. Perhaps these are some of those recommendations
that led to the change in law.16
To illustrate the extent to which males were possibly relying on the defence, statistics show
that approximately 90% of infidelity killings are committed by men; researchers also found
that 100% of the murder-suicides committed in England and Wales from 1991 to 2005 were
by males.17
These figures are a clear indication that the defence was almost always going to
be used by males. Conversely, history shows that of the four women executed for murdering
their husbands in twentieth century Britain, the issue of infidelity was only raised in one case.
There are only three cases of women appealing a murder sentence for killing husbands who
had been unfaithful for the period 1800 – 2011 amongst hundreds of men who had killed their
wives.18
One could argue that what these statistics suggest is that the law has historically
leaned more to the favour of men than to that of women.
So far all that has been discussed suggests that the defence was tailored to a patriarchal
society. However as we shall see later, albeit that the government did not remove the
requirement that there be a loss of control, under section 54(2)19
, the point was made that the
loss of control need not be sudden;20
thereby making the defence accessible to battered
women who would not have been able to use the defence of provocation due to the killing not
being immediately after the act of provocation. The downfall of the requirement that the loss
of control had to be sudden is echoed by the decisions in cases of Duffy and Ahluwalia.21
16
: “…we recommend that: the partial defence of provocation should be expanded to encompass cases in which
the defendant overreacted to a fear of serious violence”- Great Britain. Law Commission, 2006
17
Howe, 2013
18
Ibid.,
19
Coroners and Justice Act 2009 c.25
20
Op. cit. n. 1, s54(2)
21
R v Ahluwalia [1992] 4 All E.R. 889
8. 8
R v Duffy
Rene Duffy was convicted of murder having attacked and killed her husband with a hammer
and hatchet whilst he was asleep in bed. Throughout the course of their marriage, he had
constantly subjected her to abuse and violence.
Edwards described the outcome of Duffy as an epitome of a battered woman caught in time.22
The ruling of the trial judge, Devlin J, made it impossible for the defence to be used where
there had been any lapse of time. Although his judgement proposed that weight be attached to
each of the requirements of provocation, the biggest weight was attached to the requirement
of suddenness.23
It was also noted that Devlin’s definition gave rise to the “immediacy
dilemma”.24
In turn, this did not make way for the ‘slow burn reaction’ more suited to
women, or more specifically, the battered woman. The slow burn reaction is whereby there is
a build-up of tension which results in a delayed reaction to the violence suffered25
. Especially
once “Sudden and temporary” came to be used as a prerequisite for a provocation,26
the
decision began to be described as having a disastrous effect for battered women.27
In summary, it has been said that Duffy created two high benchmarks for the battered woman
to overcome; the killing had to take place straight after the act of provocation (hence sudden
and temporary) and, frustration and a long course of conduct (cumulative provocation) were
expressly excluded.28
This is another illustration of the gender bias that surrounded the law
on provocation as these hurdles made it almost impossible for a battered woman to be able to
rely on the defence.
22
Edwards, 2009
23
Ibid.,
24
Horder, 2005
25
Barnett, 1998, p. 266
26
Holmes v DPP [1946] A.C. 588. Viscount Simon Holmes at 598
27
Op. cit. n. 22
28
Ibid.,
9. 9
It should be noted that, when summing up, Devlin J expressed sympathy29
for the victim
which was never before seen in wife-killing cases, 30
therefore further illustrating the gender
bias and sexism within the courts; and thus a general lack of favour for women.
R v Ahluwalia
Kiranjit Ahluwalia was convicted of murder31
as she killed her husband by pouring petrol and
caustic soda on him and setting him alight while he was asleep. The couple had an arranged
marriage during which the deceased husband subjected her to constant, abuse (physical and
mental), taunting and humiliation.
In his judgement32
, Lord Taylor showed sympathy, albeit being careful not to overrule33
Duffy, towards cases of domestic abuse. He stated that it is accepted that the defence of
provocation would not be rejected simply because of a delayed response, provided that it was
‘sudden and temporary’. However, the longer the delay, the more likely it would be that the
defendant’s action was more deliberate and out of choice as opposed to an uncontrolled
reaction to the act of provocation. Although this judgement is more favourable than Duffy’s,
Edwards recognised that Lord Taylor’s words: “provided that there was at the time of the
killing a ‘sudden and temporary loss of self-control’” “muddied the waters”.34
Nonetheless, it
could be said that it was when the judiciary began to recognise that an allowance should be
made for the lapse of time where battered women are concerned. This recognition is
displayed by Lord Taylor in his “effort to bring battered women within sight of the law’s
justice” in conceding that cumulative provocation over a long period of time was relevant.35
29
Op. cit. n. 5 at 933
30
Howe, 2013
31
However, she was subsequently retried and convicted of manslaughter by virtue of the defence of diminished
responsibility, another partial defence with which we are not concerned.
32
Op. cit. n. 21, at 896
33
Op. cit. n. 22
34
Op. cit. n. 22
35
Op. cit. n. 22
10. 10
Although this was an attempt to bring battered women into light, unfortunately it was not
very successful or effective at the time.
Finally, some assert that the defence had developed into what one may call an “excuse based
defence grounded on a person’s loss of self-control.36
Accordingly this would suggest that the
defence and its operation took away personal accountability from the defendant. Others have
even gone as far as to say that the law of provocation provided (for men) what one would call
a “moral warrant” for murdering ‘unfaithful’ wives.37
As mentioned by Clough, 38
the fact that the question of whether the alleged provocation was
enough to make the reasonable man do as he did was left to the jury was problematic as the
jury would, on occasion, be directed to evidence which may have been seen as provocative
conduct, even though it would be unlikely that the jury would find that a reasonable person
would have acted in the same way that the defendant did. Therefore too much power was
placed on the jury when, arguably, it was unnecessary to do so, and perhaps, a waste of time.
36
Op. cit. n. 2
37
Op. cit. n. 30
38
Clough, 2010
11. 11
After the change
The new defence of loss of control is under section 54(1) CJA.39
It holds that for one to be
able to rely on the defence, first there must be a loss of self-control. Second, the loss of
control has a qualifying trigger. Third, a person of the defendant’s age and sex, with a normal
degree of tolerance and self-restraint and, in the circumstances of the defendant might have
reacted in the same or similar way to the defendant.
Before going much further, it is noteworthy that the provision straight away makes room for
the fact that men and women may respond differently40
in a situation whereby one loses self-
control. This subjective element is a step in the right direction as far as battered women are
concerned because it allows for their specific circumstances to be considered. Furthermore, in
contrast with the old defence of provocation (which made it obligatory for the judges to leave
the defence to the jury even where the defendant did not plead it), the loss of control defence
need not be left to the jury in every case41
, therefore creating judiciary discretion
Although ‘loss of control’ is the core of the new defence, the definition of this term is still
uncertain unclearly defined. When dealing with this issue, in discussions of the reform, the
Law Commission also appreciated that the term is “ambiguous because it could denote either
a failure to exercise self-control or an inability to exercise self-control”.42
It can be
concluded, for our purposes here, that it is simply a lack of composure by the defendant.
A significant change in the new defence is that sexual infidelity is to be disregarded as a
“thing said or done”.43
Feminists44
have appreciated this change, saying that without the
39
Op. cit. n. 1
40
Op. cit. n. 1, s54(1)(c)
41
Op. cit. n. 1, s54(6)
42
Great Britain. Law Commission, 2004
43
Op. cit. n. 1, s 55(6)(c)
44
Justice for Women, 2009
12. 12
exclusion of sexual infidelity, it would be the most commonly used example given of
“extremely grave character”. This is true and clearly supported by history. On paper, this was
a change for the better protection of battered women. Conversely, we are yet to see that how
well it has actually worked in practice is questionable.
To assess the operation of the new partial defence and its adequacy, how the courts have dealt
with this new law, and how they have applied it thus far R v Clinton45
will be considered .
This case will be the focus of this analysis as it was one of the first cases to be heard under
the new partial defence of loss of control.
The case ended up at the Court of Appeal after the appellant (Mr Clinton), husband to the
victim, killed the victim during their trial separation. Before the killing she had recently told
him that she was having an affair, and he had previously seen proof of this through reading
her text messages. Both the victim and the appellant suffered from depression, however, the
appellant could not be cope with the separation. At the trial, it was held that the loss of
control defence was not available to the appellant. However, the Court of Appeal rejected this
approach and found that the trial judge had misdirected herself46
.
Based on the reasoning behind Lord Judge CJ’s decision to reject the exclusion of sexual
infidelity, it is safe to say that the statute’s exclusion of sexual infidelity as a qualifying
trigger was ineffective. The judge made a grave error in allowing sexual infidelity to even be
considered, showing that the law is clearly still suffering from the old-thinking system.
Somehow, the judge found a way to make the defence applicable in a case where it was quite
obvious that it should not have been included. In his judgement, he said:
45
R v Clinton, Parker and Evans [2012] EWCA Crim 2
46
Ibid., at para 77
13. 13
“…In our judgement, where 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 sub-ss 55(3) and (4), the prohibition in s 55(6) does not
operate to exclude it.”47
It is arguable that this is an illustration of how some of the judiciary are out of date with 21st
century society and there is a desperate need for change. His Lordship adopted what Slater
refers to as the “contextual approach”.48
He (Slater) suggests that the use of the contextual
approach is simply a “camouflage for avoiding s.55(6)(c)” and that the contextual approach
allows sexual infidelity to be the “predominant qualifying trigger despite s55(6)(c)”.49
Furthermore, it is argued that because sexual infidelity becomes the main reason for the
qualifying trigger, it becomes apparent that the contextual approach is not at all ‘contextual’.
The result in Clinton is one that can be described as strange because it forms an “alchemy” 50
:
it combines Mrs Clinton’s remarks about courage and having to look after the children,
factors that are agreed on51
as not satisfying s 54(4), with a factor that is completely excluded
by s 55(6)(c) in order to satisfy s 55(4). This is an absolute stretch and undermining of the
provision. For this reason, as well as the fact that this approach adds confusion to an already
highly complex defence, it is contended that the contextual approach should be rejected.
Others have also rejected the contextual approach, asserting that it is “dangerously flawed”
and lets “non-qualifying triggers in via the backdoor”,52
an indication that there are loopholes
in the new defence. Perhaps an alternative way of using the contextual approach is to make
47
Ibid., at para. 39
48
Slater, 2012
49
Ibid.
50
Op. cit. n. 48
51
Lord CJ agreed with Judge Smith that, by themselves, Mrs Clinton’s remarks concerning courage and having
to look after the children would not enable a jury to reasonably conclude that they are a qualifying trigger under
section 55(4). Op. cit. n. 48
52
Baker and Zhao, 2012
14. 14
the non-sexual elements play the dominant role and the sexual infidelity element be
subsidiary.53
Albeit that the new defence did aim to give more protection for battered women, it is
contended that as long as the judges are the same male, old-fashioned and, possibly sexist
stereotype, the defence will not result in the better decisions that are expected of it. As noted
by Zhao,54
Lord Judge CJ made sympathetic comments that related directly to the sexual
infidelity but chose to ignore Mr Clinton’s own admissions about having bullied his wife.55
Moreover, the comments from the judge suggest a justification of Mr Clinton’s killing of his
wife purely based on sexual infidelity. With this is the potential danger that the jury will
conflate being upset upon discovering sexual infidelity with a person being justified in losing
self-control based on the discovery of sexual infidelity.56
Moreover, very little attention is
paid to the fact that Mrs Clinton had been the victim of domestic violence and, therefore
illustrating that, on application, the new law does not provide that much more protection for
battered women.
Feminists have expressed concern for loss of self-control being integral to the defence.57
A
worry is that this element has been carried on from the defence of provocation and will, like
the old defence, discriminate against women. This issue is based on the fact that: generally
speaking, women, unlike men, tend to react to “things said or done” out of fear and
desperation, as opposed to a rage in the heat of the moment. However, as already mentioned
above, the loss of control need not be sudden and fear can be one of the qualifying triggers.
A further change that has been appreciated by feminists (and probably will be by battered
women defendants) is the incorporation of sex as a characteristic of the person of normal
53
Op. cit. n. 48
54
Op. cit. n. 52
55
Op. cit. n. 45, para 16
56
Op. cit. n. 52
57
Op. cit. n. 44
15. 15
degree of tolerance and self-restraint.58
As noted by others, this incorporation ensures that
sex, gender, and the implications carried by them, are to be considered by the judge and jury
when evaluating the defendant’s actions.59
This allows for empathy to play a role in the judge
and jury’s decision-making.
On the other hand, there have been some concerns with this aspect of the new law; some
criticism points out that fear and loss of self-control may not coincide. Leigh has stated that
“It is… difficult to see how a killing that does not involve a sudden loss of control involves a
loss of control at all”.60
Ormerod also comments on the practicality of the defence, stating
that there may be difficulties in establishing a loss of control if it was not ‘sudden’.61
The
insinuation that arises here is that since there would be no loss of self-control, perhaps there
would be pre-meditation of the ‘loss of control’. It is arguable that, since victims of domestic
violence suffer from continuous fear that is underlying and almost ‘normal’ to the woman,
the fear cannot suddenly then cause an eruptive loss of self-control.62
The decision in Clinton, arguably63
, ignores the fact that one of the core reasons for law
reform in this area was for the greater protection of women. And in doing so, deny jealous
men a concession for killing in vengeance.64
Being provoked by sexual infidelity and killing
as a result of that provocation is no longer something that society views as reasonable.65
Society has moved on from dominantly patriarchal views and, so should the law and the way
it is applied.
58
Op. cit. n. 1, Section 54(3)
59
Cobb and Gausden, 2011
60
Leigh, 2010
61
Omerod, 2011, p. 511
62
Edwards, 2010
63
Op. cit. n. 52
64
Op. cit. n. 60
65
Op. cit. n. 52
16. 16
If tried again today, would the outcome be different?
A retrospective application of the loss of control defence could help determine whether the
reform was one for the better for battered women who kill. Applying the law retrospectively
to the cases of Duffy and Ahluwalia, cases where it could be said there was gross injustice,
allows us guess whether justice (or as close to that as possible) could be achieved today.
Duffy
If Duffy was to be heard today, and she relied on the defence of loss of control under s.54, it
is suggested that the outcome would be a verdict of manslaughter, as opposed to murder.
Applying the new law to the case of Duffy can be done as follows:
As s.54 (1) says, (a) there must have been a loss of self-control, which (b) had a qualifying
trigger and, (c) a person of Duffy’s sex and age, with a normal degree of tolerance and self-
restraint and in Duffy’s circumstances, might have reacted in the same way or similar to
Duffy.
In this case, although it’s not clear in the statute what an actual loss of self-control is, it is
safe to say there was a loss of control as Duffy hit her husband several times on the head and,
that does not signify a control of oneself. Since the loss of self-control need not be sudden,
the fact that there was a lapse of time between the argument and Mrs Duffy’s hammering of
her husband is not detrimental for her.
With regards to the qualifying trigger, s.55(3) is applicable as it allows for the loss of self-
control to be a result of a “fear of serious violence from the victim…”. Having been trapped
in a violent marriage, it is obvious that Mrs Duffy would have been under fear. This
qualifying trigger is easily satisfied.
17. 17
Finally, is the third requirement, the objective test. Objectively speaking, it is more than
likely that a woman of 19 years of age, with a normal degree of tolerance and self-restraint
and, in an abusive marriage, like Mrs Duffy was, would kill her husband in a rage. Section 54
is satisfied and it is likely that, if heard today, a jury would make the same finding.
Ahluwalia
It is proposed that Ahluwalia would possibly have a different outcome to that of Duffy if the
case was to be heard again today. Again, the law would be applied as follows; taking with
each aspect of section 54(1) in turn:
a) There was a loss of control on Mrs Ahluwalia’s part. It is safe to say that pouring
petrol over another person and setting them alight does not illustrate self-control. But
ultimately, this is something that the jury would decide on. Furthermore, as previously
mentioned, the loss of control need not be imminently after the event (or events) that
would have triggered the loss of control. Having said that though, consideration
would be had by the jury of the fact that Mrs Ahluwalia had pre-bought the fuel for
which she used to burn the deceased. This could suggest that the attack on the
deceased was pre-meditated; again, this is something that the jury would decide
amongst itself.
b) The qualifying trigger applicable to Mrs Ahluwalia would be that under section 55(5)
as it combines both subsections (3) and (4) of the same section. Having endured years
of violence, abuse and humiliation from her husband, it is logical to conclude that fear
of serious violence from her husband would have been almost innate to Mrs
Ahluwalia. Thus, subsection (3) is easily satisfied.
The various injuries and bruises etc. endured over the years, the stress and weight loss
caused, the constant humiliation and taunts are all factors that qualify to be “a thing or
18. 18
things done or said (or both)” which constituted circumstances of an extremely grave
character, and caused Mrs Ahluwalia to have a justifiable sense of being seriously
wronged.
Subsection (6) of section 55 is not applicable because Mrs Ahluwalia did not ever
incite her husband to be violent to her. In fact, she constantly treaded on eggshells to
ensure she did not upset him. Likewise, she did not incite the humiliation and the
other “things said or done”. Moreover, although there was sexual infidelity on the part
of the husband, it is not, on its own, relied on as a “thing said or done” and, if it is to
be disregarded, there are still various acts that can be qualifying triggers.
c) It is questionable whether a woman of 36, with a normal degree of tolerance and self-
restraint in the Mrs Ahluwalia’s circumstances might have reacted in the same way as
her. Objectively speaking, they may have taken different course of action and perhaps
not bought the fuel beforehand. As previously mentioned, it implies pre-meditation
and planning, aspects that do not sit well with a complete loss of self-control.
It is unlikely that, unfortunately, even the new defence may not assist Mrs Ahluwalia.
Again, this would be a decision for the jury to make, however.
A rough idea of how well the new defence would work on battered can be gathered from this
imagination of how the courts would determine the outcome of these previously heard cases.
Looking at the ‘outcome’ of Duffy, it could be said that better protection is provided for the
battered woman in the new defence. Ahluwalia’s ‘outcome’ however, shows us that although
the statute does provide somewhat more protection for battered women, it does not stretch as
far as to cover those situations where there is evidence suggesting pre-meditation on the part
of the defendant, no matter how horrible the victim was to him or her.
19. 19
Other jurisdictions
On occasion, a good way of assessing whether or not the law in our own jurisdiction is
effective or not is to compare it with the law in another jurisdiction. Such an approach allows
one to be able to look at either jurisdictions from a distance and, therefore forcing an
objective outlook. Having such a perception makes it possible to pick out those positive
aspects of other jurisdictions that one would feel could be considered for reform of our own
law.
Australia
Although the law of provocation is still in operation in some states of Australia, the defence
was abolished in three of Australia’s states: Tasmania (2003), Victoria (2005) and, Western
Australia (2008). The remaining states, however, did not completely disregard making
alterations as far as homicide law is concerned; instead, reforms were made to the defence. A
noteworthy change that was made was that of the state of New South Wales: the state
reformed the law of provocation but, like our partial defence of loss of control, removed the
requirement of suddenness.66
With the abolition of the law of provocation, the offence of defensive homicide was
introduced in Victoria.67
The offence was introduced in order to provide a safety net, so to
speak, for battered women. Although an offence, it operates as an alternative verdict and
allows the defendant to plead self-defence where they would not normally be able to due to
excessive force in retaliation.68
The offence has been described as one “that sits ‘half-way’”
between a murder conviction and a complete acquittal based on self-defence.69
Conversely,
66
Fitz-Gibbon and Pickering, 2012
67
Crimes Act 1958, s 9AD
68
Ibid.,
69
Toole, n.d.
20. 20
there is a huge concern70
with this offence because since its introduction until 2013, of the
twenty-four convictions for defensive homicide, only three of the offenders were women who
killed an abusive male partner.71
The remaining twenty-one are all men, of which only one
killed a woman.72
The offence was for the protection of women against abusive relationships,
however it seems most of its use is by men who are simply being violent towards other men.
Perhaps there will be further reforms in Australia to deal with this problem in the future.
With regards to differentiating between the standards of control for men and women (as the
loss of control defence does73
), it seems this jurisdiction chose to reject this approach. In the
Australian case of Stingel,74
in its judgement, the court found that while “the average power
of self-control of the member of one sex is higher or lower than the average power of self-
control of member of the other sex”, the principle of equality within the law required that
everyone is to be held to the same standard of self-control.75
It seems that the operation of the law in Australia, even before the abolition of the law of
provocation, had been somewhat sympathetic to the battered woman much earlier than in our
own jurisdiction. In the case of Chhay,76
on the wife’s appeal after being convicted of
murder, the court held that there was no requirement that the killing immediately follow upon
the conduct of the deceased. This is a clear and early recognition of the ‘slow-burn’ response
which our own jurisdiction failed to acknowledge until recently. This is observed by Bartal in
acknowledging the sympathy that the judiciary has for the abused woman who faces trial,
albeit not a complete understanding.77
70
Ibid.,
71
Op. cit. n. 69
72
Op. cit. n. 69
73
Op. cit. n. 1, s54(1)(c)
74
R v Stingel (1990) 171 CLR 314 at 329
75
Op. cit. n. 30
76
R v Chhay (1994) 72 A. Crim. R. 1
77
Bartal, 1995
21. 21
Based on this brief look at the operation of homicide law in Australia, the question of
whether it provides better protection for battered women than our own law does could be
answered in the affirmative.
Canada
Canada seems to be at one with Australia when it comes to the consideration of the
defendant’s sex with regards to their reaction. In a case in 1986,78
it was said that “the
governing principle of equality” requires that all persons be held to the same standard of self-
control. The judge found that to claim that people of different sex should be held to different
standards of self-control would “clearly be unacceptable”.7980
New Zealand
In tackling domestic violence and battered defendants, it seems, New Zealand took a more
concentrated approach than our own jurisdiction. The New Zealand Law Commission’s
report was entitled ‘Some Criminal Defences with Particular Reference to Battered
Defendants’, showing the special care and attention that is afforded to victims of domestic
violence. Like our own jurisdiction, and that of Australia, New Zealand abolished the law of
provocation after much consideration by the New Zealand Law Commission.8182
After having
abolished the defence of provocation, however, there has not been a replacement, as such, of
the defence. What provocation has become in New Zealand is a mitigating factor when
considering the sentence to be imposed on a defendant. In terms of tacking domestic violence
directly, legislation regulating domestic violence was enacted83
and later on, legislation
78
R v Hill (1986) 25 CCC (3d) 211
79
Ibid.,
80
Op. cit. n. 30
81
2009 (No.64), s4
82
New Zealand. Law Commission, 2007
83
Domestic Violence Act 1995
22. 22
dealing with sentencing for crimes related to domestic violence was enacted as a
supplement.84
Suggestions for reform
Although the introduction of the loss of control defence is a quite recent development in the
law, concerns still persist. Having considered the practicality of this new defence and looked
the law in other jurisdictions, it seems appropriate to consider what further reforms could be
made to improve this law.
It is suggested that what would be needed, if there was to be reform of the partial defence of
loss of control, is compartmentalisation.85
This is correct: a complete separation of sexual
infidelity from the rest of the factors that contributed to the loss of control is a strong
suggestion and could be exactly what the law needs. Consideration of sexual infidelity as a
qualifying trigger (as was done in Clinton) is completely undermining the core of section
55(6)(c). Others have found that a point that is raised by the decision of Clinton is that the
exception of sexual infidelity was not drafted well.86
With this in mind and the consideration
of compartmentalisation, perhaps a redrafting of section 55(6)(c) would be most ideal.
The provision regarding sexual infidelity could be amended in order to give more clarity; a
suggestion could be that the statute specifies when and how sexual infidelity could be
considered by the judge. With regards to sexual infidelity, consideration should be had but,
only when assessing the self-control of the defendant; when assessing whether or not there is
a qualifying trigger, it should be disregarded.87
Directions to the jury could be given in such a
manner that makes it clear that sexual infidelity could be considered, however, with caution.
84
Victims Rights Act 2002
85
Op. cit. n. 60
86
Stark, 2012
87
Slater, 2012
23. 23
The aim of this would be to find a ‘half-way’ point, so to speak, in order to avoid an injustice,
between those cases whereby the man’s sexual jealousy is the qualifying trigger (which was
the reason for this exclusion in the first place) and those cases whereby the sexual infidelity is
crucial and has caused more trauma ill-treatment than simple jealousy and anger. This is
noted by Slater who says that because of strict interpretation of s55(6)(c), there may be
prevention of the consideration of sexual infidelity in situations where there is morally
justifiable anger and anguish, caused by sexual betrayal and humiliation.88
In such situations,
Salter argues, the result may be traumatic psychological effects which could almost excuse
fatal violence. Therefore, it may be fair to repeal the sub-section in order to accommodate the
consideration of cases involving sexual infidelity. The high standards set by s55(4) would
mean that juries would only be allowed to consider and let the defence succeed when the
sexual infidelity in question reflected a situation mentioned above. Jeremy Horder also
acknowledged this danger of a blanket prohibition by saying that “One of the difficulties
about being ‘absolutist’ in this area is that one prevents the jury hearing rare meritorious
cases”.89
Thus, a suggestion is that relativism would perhaps be a better option as it allows for
each case to be treated individually. Conversely, once this door is open, there is a danger that
cases not meeting this high standard may be able to slip through the fingers of the law. 90
A potential problem could arise with this though; some confusion as to application may arise
and the jury may not understand what is being asked of them. For example, exactly how
much weight would be given to the sexual infidelity. Therefore, if such changes were made,
explanatory notes for judges and direction would be indispensable.
88
Ibid.,
89
Horder, 2009
90
Op. cit. n. 48
24. 24
A better approach to this law reform (or one to consider) may have been to replace the old
defence with a defence tailored specifically for battered women;91
this would deal with the
problem directly. This could be a consideration for future reform. It is contended that quite
the example was set by Australia through its introduction of the offence of defensive
homicide.
91
Op. cit. n. 60
25. 25
Conclusion
As much as the reform aimed to reduce gender bias by excluding sexual infidelity as a
qualifying trigger, it seems the court of appeal disregarded this effort in its ruling in Clinton.
It has been contended the court “grasped the first opportunity to reclaim infidelity-rage as
excusatory as law”.92
There is still a lot to be done in terms of making it clear exactly how the
law should be applied. It is blatant and, quite a concern that, even after reform excluded
sexual infidelity from consideration, the excuse still manages to carry a lot of weight on the
judges’ decision making. Although it may be a dramatic assertion, it is still safe to say that
the reform was almost ineffective.93
The decision to keep the requirement of loss of control
and make it the centre of the new law was regressive and will surely attract further
criticism.94
With that being said, however, it can be concluded that there would more likely to be
different outcomes in cases of women killing their abusive male partners based on our
hypothetical application of the new law on the case of Duffy.
So, to answer the question with which we began, a simple answer cannot yet be given due to
the lack of case law under the new law . With regards to the battered woman, the partial
defence is certainly a step-forward, albeit not a huge leap, in the right direction towards
providing more legal protection. Time will tell, and the law should certainly be kept under
review.
92
Op. cit. n. 30
93
Op. cit. n. 30
94
Op. cit. n. 13
26. 26
Bibliography
LEGISLATION CITED
Coroners and Justice Act 2009 (c. 25)
Homicide Act 1957 (c. 11)
FOREIGN LEGISLATION CITED
Crimes Act 1958 (Australia)
Crimes (Provocation Repeal) Amendment Act 2009 (No.64) (New Zealand)
Domestic Violence Act 1995 (New Zealand)
Victims Rights Act 2002 (New Zealand)
BOOKS CITED
Baker, D., 2012 Glanville Williams’ Textbook of Criminal Law. London: Sweet & Maxwell
Barnett, H. 1998. Introduction to Feminist Jurisprudence. Cavendish Publishing Limited.
Cobb, N. and Gausden, A. 2011. Feminism, ‘Typical’ Women, and Losing Control. In: Reed,
A. and Bohlander, M, eds., Loss of Control and Diminished Responsibility: Domestic,
Comparative and International Perspectives. Surrey: Ashgate Publishing Limited, 2011, pp.
97-113
Mitchell, B. 2011. Loss of Self-Control under the Coroners and Justice Act 2009: Oh No!. In:
Reed, A. and Bohlander, M, eds., Loss of Control and Diminished Responsibility: Domestic,
Comparative and International Perspectives. Surrey: Ashgate Publishing Limited, 2011, pp.
39-50
Omerod, D. 2011. Smith and Hogan’s Criminal Law. 13th ed. Oxford University Press.
JOURNAL ARTICLES CITED
Baker, D. and Zhao, L., 2012. Contributory Qualifying and Non-Qualifying Triggers in the
Loss of Control Defence: A Wrong turn on Sexual Infidelity. Journal of Criminal Law, 76
(3), pp. 254-275
Clough, A., 2010. Loss of self-control as a defence: the key to replacing provocation. Journal
of Criminal Law, 74(2), pp. 118-126
27. 27
Edwards, S., 2009. Justice Devlin’s legacy: Duffy – a battered woman “caught” in time.
Criminal Law Review, 12, pp. 851-869
Edwards, S., 2010. Anger and fear as justifiable preludes for loss of self-control. Journal of
Criminal Law, 74(3), pp. 223-241
Fitz-Gibbon, K. and Pickering, S., 2012. Homicide Law Reform in Victoria, Australia, From
Provocation to Defensive Homicide and Beyond. British Journal of Criminology, 52 (1), pp.
159-180
Fitz-Gibbon, K., 2013. Replacing Provocation in England and Wales: Examining the Partial
Defence of Loss of Control. Journal of Law and Society, 40 (2), pp. 280-305
Horder, J., 2005. Reshaping the Subjective element in the Provocation Defence. Oxford
Journal of Legal Studies, 25(1), pp. 123-140
Howe, A., 2013. Mastering emotions or still losing control? Seeking public engagement with
“sexual infidelity” homicide. Feminist Legal Studies, 21 (2), pp. 141-161
Kenny, E., 2007. Battered women who kill: the fight against patriarchy. UCL Jurisprudence
Review, 13, pp. 17-36
Leigh, L.H., 2010. Two New Partial Defences to Murder. Criminal Law & Justice Weekly,
174(5), pp. 53-55
Slater, J., 2012. Sexual Infidelity and Loss of Self-Control: Context or Camouflage? Denning
Law Journal, 24, pp. 153-168
Stark, F., 2012. Killing the unfaithful. Cambridge Law Journal, 71(2), pp. 260-263
CASES CITED
Holmes v DPP [1946] A.C. 588
R v Ahluwalia [1992] 4 All E.R. 889
R v Clinton, Parker and Evans [2012] EWCA Crim 2
R v Duffy [1949] 1 All E.R. 932
FOREIGN CASES CITED
R v Chhay (1994) 72 A. Crim. R. 1 (Australia)
28. 28
R v Hill (1986) 25 CCC (3d) 211 (Australia)
R v Stingel (1990) 171 CLR 314 (Australia)
Law Commission Publications cited
Great Britain. Law Commission, 2003. Partial Defences to Murder. London: HMSO.
(Consultation paper No. 173).
Great Britain. Law Commission, 2004. Partial Defences to Murder. London: HMSO. (Report
No. 290).
Great Britain. Law Commission, 2006. Murder, Manslaughter and Infanticide. London:
HMSO. (Report No. 304).
New Zealand, Law Commission, 2007. The Partial Defence of Provocation. Wellington:…
(Report No. 98).
WEBSITES CITED
Coroners and Justice Bill: Memorandum submitted by Professor Jeremy Horder, Law
Commissioner for England and Wales January 2009 [online]. (s.l): Parliament. Available at:
http://www.publications.parliament.uk/pa/cm200809/cmpublic/coroners/memos/ucm102.htm
[Accessed February 2015]
Coroners and Justice Bill: Memorandum submitted by Justice for Women February 2009
[online]. (s.l): Available at:
http://www.publications.parliament.uk/pa/cm200809/cmpublic/coroners/memos/ucm0902.ht
m [Accessed February 2015]
Toole, K., n.d. Defensive Homicide on Trial in Victoria. Monash University Law Review, 39
(2). [online] Available at : http://www.law.monash.edu.au/about-
us/publications/monlr/issues/past/vol-39-2-toole.pdf [Accessed March 2015]
CONFERENCE PROCEEDINGS CITED
Bartal, B., 1995. Battered Wife Syndrome Evidence: The Australian Experience. In: Vagg, J.
and Newburn, T., ed, 1998. The British Criminology Conferences: Selected Proceedings.
Volume 1: Emerging Themes in Criminology. Loughborough University
HANSARD DEBATES
29. 29
HC Deb 3 February 2009 vol 487 c 9
Acknowledgements
Many thanks to Jo Boylan-Kemp for all her advice and guidance, Sue McLaughlin for her
encouragement, Julie Higginbottom for her constant support and honesty, Jayne Dixon, and
my friends who have put up with my constant worrying. Finally, I thank my parents for
simply being there.
