The problems with provocation as a defence to murder: Has the Coroners and Justice Act 2009 provided a solution to those suffering from domestic violence and battered women’s syndrome?
The law surrounding murder appears to be more favourable to men than women because of limited defences that are available. The provocation defence has been criticised for some time for failing to allow a loss of self-control to be included if it did not happen ‘sudden and temporary’. This was rectified by the new provisions that were recently introduced under the Coroners and Justice Act 2009, yet further complications have now arisen and women are still finding it difficult to rely on the defence.
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This is especially so when it comes to victims of domestic violence and battered women’s syndrome who now have to face a number of different obstacles when establishing their loss of self-control.
Chapter 1: Introduction
1.1 Background Information
There currently exists no specific offence of domestic violence in English criminal law. Instead, reliance is placed upon the fatal and non-fatal offences that are used to prosecute interpersonal violence conducted by a stranger. In spite of this, the law has evolved over the years to take account of the position domestic violence victims find themselves in. The abolition of the exemption to marital rape in 1991 was a significant advancement in protecting domestic violence victims as the rights of wives began to be recognised. The development of the provocation defence, placed on a statutory footing by s. 3 of the Homicide Act 1957, also illustrated how the law and judicial attitudes began to take account of the experiences of those suffering from domestic violence and battered women’s syndrome. This did not prove enough, however, and the defence of provocation was subject to a significant amount of criticism for failing to provide adequate protection to certain domestic violence victims. A lack of consistency existed in the appeal courts when applying the defence and it was argued that much gender bias still existed. It was believed that the defence was more favourable to those who lost their temper suddenly (men) and disadvantaged those who kill out of fear of serious violence (women). The loss of self-control defence, which came into force in October 2010, was introduced by s. 54 of the Coroners and Justice Act 2009 to rectify these problems, yet it is arguable whether this has been achieved. Much critique still surrounds the new defence and it is felt that the Act does not necessarily provide a solution to those suffering from domestic violence and battered women’s syndrome. The extent to which the new legislation addresses the issues surrounding provocation will be reviewed in this dissertation in order to consider whether the interests of domestic violence victims are being better protected.
1.2 Research Aims and Objectives
The aims and objectives of this dissertation are to determine whether the Coroners and Justice Act 2009 has successfully addressed the issues that surrounded the defence of provocation. This will enable a determination to be made as to whether victims of domestic violence are now able to raise the defence of loss of self-control more easily and whether better protection is now being provided to those suffering from domestic violence and battered women’s syndrome. The development of case law concerning provocation will be critically analysed in order to understand the effectiveness of the new loss of control defence.
1.3 Research Problem
Although the introduction of a new loss of control defence was intended to rectify this area of the law, it seems as though additional problems now exist. Under the old law, women did not receive the protection they required when raising the defence of provocation. Those suffering from domestic violence and battered women’s syndrome were being discriminated against because of the requirements of the defence. Thus, it needed to be satisfied that there existed a ‘sudden and temporary loss of control’ for the defence to be successful. This was extremely difficult for women to prove as they were less likely than men to lose their control in a sudden and temporary manner. As a result, it seemed as though men benefited from this defence a lot more than women did which was highly discriminatory. The new ‘loss of control’ defence appears to be a lot more favourable to women on the basis that it is no longer a requirement to show that that the loss of control was ‘sudden and temporary’. However, there are still many concerns as to whether the new provisions do actually remove the pre-existing discrimination. Arguably, vast improvements have been made to this area of the law, though many underlying issues still exist which signifies that gender discrimination is still prevalent in the law of murder. Consequently, changes still need to be made if the Coroners and Justice Act 2009 is to provide a solution to those suffering from domestic violence and battered women’s syndrome.
Chapter 2: Methodology
2.1 Structure of Dissertation
The literature review will be structured into three different chapters. The first chapter will provide a review of the law of provocation and the problems that were associated with the defence. The second chapter will state the law as it currently stands, whilst also providing a critical evaluation of whether those suffering from domestic violence and battered women’s syndrome are being adequately protected. The third chapter will discuss what improvements to the law need to be made to ensure that victims are being provided with the protection they require. The conclusion and recommendation sections will provide a summary of the findings and any suggestions for reform.
2.2 Research Questions
Do the changes provided by the Coroners and Justice Act 2009 provide a solution to those suffering from domestic violence and battered women’s syndrome?
Has the pre-existing discrimination been removed by the Coroners and Justice Act 2009?
How does the new law accommodate women?
Does this area of the law require further changes to improve the protection that women are currently being afforded?
2.3 Research Ethics
A secondary research approach is being used in this dissertation which means that there are few ethical issues that need to be taken into account. Nevertheless, it must be ensured that all data is used in a true and honest manner and that its adequately reflects the views put forward. Consent may also be required because as put forward by Grinyer; “codes of ethical conduct suggest that consent obtained from participants at the point of data collection should not be ‘once-and–for-all’ and renewed consent is necessary for secondary analysis”. The use of secondary data is a lot more efficient and cost effective that using primary data and will allow data to be obtained that would not otherwise be available.
2.4 Research Philosophy and Approach
Positivism is the research philosophy to be used in this dissertation. Positivist research is about obtaining knowledge, using scientific methods of inquiry, from an objective viewpoint. This is best way that the information required for this dissertation can be obtained This is the most appropriate way to gather information relating to this topic as it allows one to remain detached from the research and is thus a “commonsensical way of conducting research”. This research philosophy is supported by secondary research in that various views and opinions on the new loss of control defence will be obtained. Furthermore, quantitative research methods will also support the positivist approach by allowing the adequacy of the law in this area to be explained through the use of supporting evidence.
2.5 Data Collection and Analysis
Data will be collected from text books, journal articles, online and offline legal databases, law reports and governmental reports. Evidence that is supportive of and which discredits the research question will be used as this will enable a proper explanation to be given as to the effectiveness of the new Coroners and Justice Act 2009. Once this has been done, any possible reforms will then be capable of being identified. Although secondary data is convenient and less time consuming, restrictions will still exist. One of the main restrictions being that the research will not be directly applicable to the research question. Nevertheless, the data that will be used will be of a high standard because of how good the quality of secondary data is. Secondary data will thus be more reliable and better attainable than primary data.
2.6 Key Words
Battered Women’s Syndrome
Sudden and Temporary Loss
Loss of Control
Coroners and Justice Act 2009
Chapter 3: Literature Review
3.1 Law of Provocation
The common law defence of provocation was subject to a great deal of criticism before it was abolished and replaced by a defence of loss of control under the Coroners and Justice Act (CJA) 2009. Many believed that the law surrounding this partial defence to murder was inadequate and thus in need of reform. It remains to be seen whether the changes have improved the law within this area but given the difficulties associated with provocation, the Act is likely to have a significant effect. This section will review the defence of provocation in order to consider the extent to which reforms were needed.
3.1.2 Critique of Provocation Defence
The law surrounding the common law defence of provocation was considered “inherently contradictory” by the Law Commission and thus in need of reform. Many argued that the defence was largely inconsistent and inadequate, thereby lacking clarity and precision. As put by the Home Office; “it is over 50 years since the last comprehensive review of the law on homicide and the time is ripe for another one.” It became apparent that the law relating to homicide was outmoded and in need of re-modification. The Law Commission was consequently instructed by the government to review the different elements of manslaughter to consider its effectiveness. It was stated in the Law Commission’s 2006 Report that the law regarding manslaughter was a lot more complex than the law surrounding murder because of its extensive nature. Hence, it was noted that manslaughter is “extremely broad, ranging in its gravity from the borders of murder right down to those of accidental death”. The provocation defence was particularly confusing because of its lack of clear definition as to its actual meaning. Whilst it was provided under s. 3 of the Homicide Act 1957 that “the defendant must lose his self-control”, it was difficult to determine what it means for an individual to lose their self-control. Some case law did attempt to provide clarity to this area, yet this added even further confusion to the mix. In R v Duffy it was held that the loss of control must be ‘sudden and temporary’. This received a lot of criticism for being more favourable to men than women as men were said to be more likely to have a “sudden and temporary” loss than women. As a result of this, it was extremely difficult for women to rely on the provocation defence when they were suffering from domestic violence and battered women’s syndrome.
This was clarified by the Law Commission in consultation paper No 177 when they stated that the loss of self-control requirement is extremely bias towards individuals who have a quick temper. This was clearly problematic for women who often suffered a slow burn effect when being subjected to domestic violence. An example of this can be seen in the case of R v Ahluwalia where the defendant poured petrol and caustic soda onto her husband while he was sleeping and then set fire to him. The defendant was in an arranged marriage and had been subjected to violence and abuse throughout the marriage. The defendant’s husband was also having an affair and had threatened the defendant on the night of the killing that he would beat her with an iron if she did not provide him with money. The defendant was convicted of murder and her defence of provocation failed on the grounds that the loss of self-control was not ‘sudden and temporary’. This decision caused a public outcry and it became even more obvious that the law of provocation was in need of reform. It was said that women were unlikely to act in a sudden and temporary manner and that some form of pre-meditation was evident. As women are generally not as strong as men, it is likely that they would be too frightened to act in a sudden and temporary manner. It would be a lot more
difficult for a woman to stand up to an abusive partner by lashing out and so it is more probable that some form of pre-meditation would be involved. Since the decision in Duffy, less reliance was being placed on the provocation defence and women were looking to other defences to reduce the offence of murder to manslaughter, such as diminished responsibility. Arguably, the law surrounding voluntary manslaughter was in a state of disarray as a great deal of uncertainty was being produced.
Overall, improvements to the law on provocation were clearly needed as a great deal of confusion persisted. Women were not being treated as favourable to men when it came to establishing a defence of provocation, thereby resulting in discrimination. Much critique thus surrounded this area of the law and it was becoming even more difficult for women to establish this defence if there involved any form of pre-meditation. Women suffering from domestic violence and battered women’s syndrome were particularly disadvantaged and further changes were inevitable. Although recent changes to the law have been made, it is still pretty much questionable whether all of these problems have been eliminated. Such changes will be reviewed in the following sub-chapters.
3.2 Loss of Control Defence
It seems as though women were not receiving the protection they required under the previous law as a great deal of prejudice existed between men and women when it came to establishing the defence of provocation. Victims of domestic violence and those suffering from battered women’s syndrome were discriminated against because of the fact that the defence of provocation required that there be a sudden and temporary loss of self-control. Women found it more difficult than men to demonstrate that they had acted sudden and temporary, especially if there was some element of pre-mediation involved. Much injustice occurred as a result of this and it became apparent that reforms were inevitable. A loss of control defence was introduced under the Coroners and Justice Act 2009 to rectify these problems and remove the prejudice that surrounded this area. Despite this, criticisms still arise leaving it unclear whether a solution to those suffering from domestic violence and battered women’s
syndrome has been provided by the new Act. This section will review the new Act in order to consider whether it is now more favourable to domestic violence victims and those suffering from battered women’s syndrome.
3.2.2 Loss of Control Defence: Arguments For
Women have been subjected to discriminatory treatment for a number of years when it came to establishing a defence of provocation. Since the provocation defence was abolished in 2010, however, it has been said that women are now receiving much better treatment in that they are now able to raise a defence of provocation if they lose their self-control as a result of domestic abuse. There is no longer the requirement that the loss of self-control be ‘sudden and temporary’, which does appear to have removed any pre-existing discrimination. Previously, it needed to be shown that the defendant lost their self-control as a result of things that were said or done. This is no longer a requirement and instead it has to be shown that the defendant lost his or her self-control as a result of qualifying triggers (subjective test). It also has to be shown that a person with a normal degree of tolerance and self-restraint would have acted in the same manner (objective test). In applying the objective test, the person that is being compare must be of the same age and sex as the defendant. This prevents any prejudice as a woman’s actions will be compared to those of another woman. And, because a woman is likely to react in a different way to a man, the person that is being used for the objective test must be someone that correlates with the defendant, in terms of age and sex. If the comparator was not someone who was of the same age and sex, it is likely that the pre-existing discriminations would remain. The Law Commission did not agree with this part of the new law and instead felt that it was in fact inappropriate to take into account a person’s sex. The Law Commission believed that men and women share the same standards of tolerance and that any element of subjectivity could potentially be used inappropriately. It was also said the use of an objective test does not place an undue on the defence as tolerable people can too lose their self-control.
Whilst this may be true, it seems that women would still be discriminated against if the Law Commission had got their own way. Women would be judged in the same way as a man would, which would again be problematic. This is because, women do not have the same sensitivities as men, who are likely to react to certain situations in different ways. It is
arguable why the Law Commission did not think that sex was an important factor to consider when applying the objective test as they were strongly against the pre-existing gender-bias. Still, the views of the Law Commission were rejected by the Ministry of Justice who believed that there approach would not protect sufficiently protect women. Not all agree with the decision of the Ministry of Justice, however, and instead believe that they were mistaken in incorporating sex into the evaluative standard. This was identified by Reed and Bohlander who pointed out that the use of sex as an evaluative standard “unnecessarily refracts and reinforces stereotypes that men and women differ in their ability to control their behaviour”. They believed that in deciding whether the defendant lost his or her self-control, sex should only be considered “under the partial defence of loss of control as part of the positioning of the hypothetical person within the wider ‘circumstances’ of the defendant”. It was believed that this would prevent stereotyping from occurring, though it is likely that pre-existing gender biases would have been maintained. Previously, a loss of self-control was constrained to a state of anger and rage. This was one of the main reasons why discrimination against women occurred as the Act was likely to benefit men a lot more than women. Conversely, this now appears to have been rectified as it is provided under section 55(3) of the 2009 Act that the first qualifying triggers are to be defined as a “loss of self-control attributable to the defendant’s fear of serious violence from the victim against the defendant or another identified person”.
These provisions do appear more favourable towards women, meaning that it is not more likely that women will be capable of relying upon this defence. This is likely to be a welcoming development to victims of domestic violence and battered women’s syndrome who are more likely to rely on the provocation defence if they find themselves killing their abusive partners after a long period of abuse. This is more commonly known as the “slow burn effect” and usually involves a certain degree of pre-mediation. Whether this provides a solution to such victims is questionable but it is evident that it certainly protects them a lot more than the previous law did. Defendants no longer need to demonstrate that they have acted on a whim and instead their actions can involve some form of pre-mediation. This is far
more favourable to domestic violence victims and those suffering battered women’s syndrome who are less likely to act in a spontaneous manner for lack of physical strength. Such victims would be more likely to wait until their abusive partner was asleep before acting out of rage as they simply do not have the same physical strength as men and would unlikely be successful if they acted on a whim. This is especially so for those victims suffering the slow burn effect as they would have time to plan an attack, through years of domestic abuse. This was not taken into account under the previous law and women who suffered at the hands of their abusive partners for a period of years, where not able to raise the defence of provocation, whereas males whom acted on impulse without being a victim of domestic abuse could. This was clearly absurd and highly unfair towards women, which is what the new law has sought to redress. It cannot be said that the new law provides an answer for all those women suffering from domestic violence and battered women’s syndrome as the particular circumstances and facts of the case will still be taken into consideration.
In addition, the “slow burn defence will still have a high threshold”, preventing anyone from relying on the defence. This ensures that “cold, calculating killers” are not able to use the defence to escape criminal liability for their actions. Hence, it is important to remember that whilst the defence is welcoming in providing better protection to women, it will not provide a defence in every situation and will not always provide a solution to victims of domestic violence and battered women’s syndrome. Despite this, significant improvements have been made under the Act, which are more accommodating to women. Section 54 (2) of the new Act removed the ‘suddenness’ requirement, thus enabling those who failed to act suddenly the ability to rely on the defence. It was said that the ‘suddenness’ requirement had “long been a hindrance for women whose experience of provocation was being described as more akin to a ‘boiling over’ than the male ‘snap’ response.” The removal of this requirement is clearly advantageous for those who are less prone to snapping after an incident has occurred and more likely to dwell on the situation and react later on. It became apparent from the cases of R v Duffy and R v Thornton that if any delays in responding to a particular situation would be viewed unfavourably if an attempt to rely on the provocation
defence was being made. This is due to the fact that the loss of self-control had to have happened suddenly, which was not a realistic prospect when it came to women defendants. As this requirement has now been removed, it is likely that women will be able to use the defence to their advantage a lot more than they would have been able to previously. The new law seems to accommodate victims of domestic violence and those suffering from battered women’s syndrome who are forced to delay their reactions out of fear.
Although defendants will be able to demonstrate that they acted out of fear, this alone will not be sufficient for the loss of control defence to be successful. Instead, a number of additional qualifying triggers will also have to be satisfied. The test to be used for establishing whether any qualifying triggers were present will be a subjective one that is based upon whether the defendants lost their control out of a serious fear of violence or whether it was in fact attributable to things that had been said or done, that were grave in nature. It cannot be shown that the defendant had provoked the actions to be caused as this will otherwise negate both of the qualifying triggers. This ensures that defendants who cause a person to provoke them are not able to then rely on the loss of control when things get out of hand. This also allows the decision to be made based upon the particular facts and circumstances of the case, preventing the pre-existing discrimination from determining the outcome of the case. There has, nonetheless, been a great deal of confusion as to whether sexual infidelity can be considered a qualifying trigger, although this issue seems to have been addressed in R v Clinton, Parker, Evans. Here, the courts questioned whether sexual infidelity should amount to a qualifying trigger in cases that involved other qualifying triggers. The judge held that sexual infidelity could only be considered as part of the contextual background if other triggers were present and that it must be excluded if it is the only qualifying trigger in the case. Not everyone agreed with this approach and instead argued that sexual infidelity should not be taken into account when deciding whether the defendant lost his or her self-control. Critique still surrounds the new defence and it has been noted that; “upon close analysis these changes could seem little more than a glossy exterior”.
Further clarity is therefore needed so as to prevent any pre-existing discrimination and
confusion from arising and it is important to understand what ‘qualifying triggers’ can be used under the defence. Furthermore, although the exclusion of sexual infidelity, in many ways, prevents the defence from being abused it seems to ignore the possibility that other acts of gross provocation may occur. For example, a defendant may feel they have been shamed by the act of a family member and therefore undertake an honour killing. They may then seek to rely on the loss of control defence and use this situation as a qualifying trigger. This would open the flood gates dramatically and give rise to even further complexity. Arguably, there are still many underlying issues that exist under the new defence and it remains to be seen whether these will be addressed. Defendants who find themselves losing their self-control may find that it is actually a lot more difficult to rely on the new provisions than they would have thought. As such, it cannot be said that the new Act does actually provide a solution for domestic violence victims and those suffering battered women’s syndrome as they may find that the qualifying triggers do not apply. Much difficulty exists when trying to differentiate between cases involving a real motive for revenge as a result of domestic abuse and those cases where the defendant loses his or her self-control days after abuse has occurred. This is because, as noted by Carline; “acting due to a fear of serious violence defence is not about a loss of self-control but based upon a recognition that some domestic violence victims live in desperate situations in which extreme fatal action may seem to be the only means by which to survive”. It is unconscionable that such victims are not able to seek to protection under the law, yet those that act in a sudden rage are.
Given that the new provisions seek to rectify such discrepancies, it seems as though they do actually provide a new solution for many victims of domestic violence and battered women’s syndrome. Though problems will continue to arise for those women that cannot demonstrate that they have lost their self-control. Not all victims lose their self-control when provoked and so the defence will not be relied upon in all instances. This is unfair towards those that have been provoked for many years and, who do not lose their self-control, but feel that this is their only way out. It is questionable why the government retained the “loss of self-control” phrase when it continues to be viewed negatively. For a defence of provocation to be successful, the defendant had to show that they were in fear and desperation, yet in order for the loss of self-control defence to be successful, the defendant merely has to show that he or
she was angry. Those acting in fear should be provided with the same protection as those acting from anger because as has been put forward; “Fear, too, can undermine self-control and is a more likely response to provocation in cases where the provoker is the more powerful”. As domestic violence victims and battered women are more likely to act out of fear, this should be considered an important factor when deciding whether reliance can be placed upon the new defence. Because the new defence, is called a ‘loss of control’ defence, it appears to be largely misunderstood. This was one of the main criticisms the old provocation defence was often subject to, which is why it is difficult to understand why this term is still being used under the new provisions. As recognised by Gerry; “The law of provocation concentrated on the fact that control was lost. It was seen as too lenient on those who kill out of anger and too severe on those who kill out of fear of violence.”
Whilst the new provisions are quite lenient in terms of the removal of the ‘suddenness’ requirement, the use of qualifying triggers is restricted. For example, adultery was previously capable of being taken into account when deciding whether control was lost, but under the new law this can no longer be taken into consideration. In effect, there are many ways in which the new provisions do provide a solution to domestic violence victims and those suffering battered women’s syndrome, yet many restrictions still exists. Overall, it is clear that the law of murder has been less accommodating to women for a significant period of time. This is due to the fact that women often found it difficult to demonstrate that they had a sudden and temporary loss of self-control. As this suddenness requirement has now been removed under the new provisions, it does appear as though the new Act is more accommodating to women, thus providing a solution for domestic violence victims and those suffering battered women’s syndrome. Women are now required to demonstrate that either; a) the loss of control resulted from a serious fear of violence, or b) that the loss of control was attributable to things said or done which were grave in nature. If either of these can be satisfied, the defendant will be able to rely on the defence and have the offence of murder reduced to manslaughter. Criticism still surrounds the new provisions because of the fact that the loss of control image that has been portrayed is one of anger. This is not as easy to
establish as the fear element since women will not usually react to a situation in anger to things that have been said or done. Instead women will act out of fear, which places greater reliance upon the first part of the defence, which may not always be easy to do.
3.2.3 Loss of Control Defence: Arguments Against
There has been a significant amount of criticism that has surrounded the new loss of control defence since it was first introduced by the Corners and Justice Act 2009. It has been argued that the Act was not enough to remove the pre-existing discrimination towards women and that a great deal of prejudice still existed. In effect, it seems that although many improvements have been made under the new provisions problems still arise and women are still likely to be discriminated against regardless of the fact that the ‘suddenness’ requirement has been removed. The qualifying triggers that are required under the Act are considerably restrictive and it seems rather confusing to relate a trigger to a particular situation. In deciding whether a defendant has lost their self-control, the court will have to apply one of the qualifying triggers to the particular situation. This can often lead to a great deal of complexity because of the uncertainty as to what many of the qualifying triggers actually entail. Under the previous law, any type of conduct could be taken into account by the court when determining whether a defendant had in fact lost their self-control. However, under the law many restrictions now apply. For example, s. 55 of the 2009 Act states that a qualifying trigger may only relate to “D’s fear of serious violence” (s. 55(3)) or “a thing said or done which constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged” (s. 55(4)). Other restrictions can also be found in ss. 55(6) (a) and (b), where instances of sexual infidelity and provocation resulting from the defendants owns actions cannot be used as a qualifying trigger. Although this does restrict the use of the defence, it is important that it is not made to readily available as this could lead to cold calculated killers escaping criminal liability on the basis that they were provoked to lose their self-control in some way or another.
In spite of this, the sexual infidelity restriction has caused a great deal of concern on the basis that it represents a major change in the law of murder. The aim of excluding this from the list of qualifying triggers was to prevent loss of control being used as an excuse for crimes involving passion. It was thought that the previous defence of provocation was capable of being used in this way and that infidelity should not be used an excuse for individuals to
commit murder in a civilised society. If sexual infidelity was capable of being used as an excuse to murder, the floodgates would be opened significantly and more individuals would end up killing their partners as a result of infidelity. This would be completely unacceptable and should not be permissible in a civilised society. Arguably, it is thereby imperative that some restrictions are in place to prevent problems like this from occurring, though these should not be too restrictive so as to maintain pre-existing discrimination. The Court of Appeal recently dealt with the issue of sexual infidelity in the case of R v Clinton, Parker, Evans. Here, the extent to which qualifying trigger of sexual infidelity was to be excluded in the new loss of control defence was considered. In doing so, it was held that sexual infidelity is capable of being considered as part of the contextual background of a case only if other triggers were also present. In effect, this meant that sexual infidelity could only be excluded if it was the only trigger available. Therefore, it could still be used in the case to decide whether the defendant had in fact lost his or her self-control. This is likely to cause some confusion since it appears under the new provisions that this trigger cannot be used at all, yet the court made it clear that it can be taken into account as part of the contextual background of the particular case.
This does appear to make sense as it would be difficult for a court to make a decision based on the facts of the case if it could not take into account sexual infidelity if it had occurred. Much critique has surrounded this decision on the grounds that; “the court failed to grasp the actual workings of the new law as sexual infidelity should cannot be considered under any of the prongs of the new defence”. It could be said that the court was wrong to consider sexual infidelity as a qualifying trigger on the basis that this is not what the new law intended, and that as a result the new provisions have not proven workable. Furthermore, because sexual infidelity was the main dominating trigger in the case the court should have erred on the side of caution so as to not trigger others from seeking to rely on the defence. It cannot be said that the pre-existing discrimination has been completely removed by the new loss of control defence and has resultantly been said to completely ignore “the feminist aims behind the legislation”. It could be argued that a narrower interpretation of the qualifying triggers should have been given so that sexual infidelity cannot be relied upon under the defence.
Although, it looks as though an attempt to exclude sexual infidelity was made by the new law, this has not actually happened. It is questionable what has actually been achieved by the new provisions if women are still capable of being subjected to discriminatory treatment. Furthermore, it cannot be said that the 2009 Act has provided a solution to those suffering from domestic violence and battered women’s syndrome as women are less likely than men to lose their self-control as a result of sexual infidelity. As a result of this, the new defence remains largely male dominated, which is not in accordance with the original objectives of the 2009 Act. As pre-existing discrimination still exists in favour of men, the aims of the 2009 Act have not been fulfilled and women are still being treated unfavourably to men.
Removing sexual infidelity from the list of qualifying triggers has not achieved its purpose as the trigger is still being used in many instances, as in R v Clinton above. The reason why this trigger was removed in the first place was to prevent cases from being decided on the grounds of sexual infidelity. As this is still capable of being done, the original intentions have been discredited. The current law as it stands appears to be in a state of disarray as a result of this and it seems as though the sexual infidelity trigger should be completely removed so as to avoid confusion. On the other hand, the case of Attorney-General’s Reference (No. 23 of 2011) (R v Williams (Sanchez)) demonstrated the importance of not using sexual infidelity as a qualifying trigger when determining whether a defendant has lost his or her self-control. Here, it was made clear that sexual infidelity should not be used as a deciding factor when making a decision though it is questionable whether this will be followed in all cases. Judges will be able to act in a prejudicial manner by giving more weight to the sexual infidelity trigger than they should. The new loss of control defence thereby appears flawed in that the discrimination against women than existed under the provocation defence is still prevalent throughout the 2009 Act. Whether changes will be made in the near future, remains to be seen but it seems as though the courts will be faced with great difficult in cases where sexual infidelity is present. Not all would agree that sexual infidelity should be removed as a qualifying trigger, nonetheless, and would instead argue that it provides one with a valid reason to lose their self-control. This is certainly the position that has been taken in Scotland where sexual infidelity is capable of being used as a qualifying trigger.
An example of this can be seen in the Scottish case of Drury v HM Advocate when it was held that; “sexual infidelity could constitute provocation as well as the usual violent situations because of overwhelming emotions on discovery of sexual infidelity”. In view of this case, it has been questioned why it is right for an act or admission of sexual infidelity to be “completely excluded south of the border?” when it can lead to overwhelming emotions on discovery. However, as illustrated in R v Clinton case; sexual infidelity can be taken into account if it forms an “essential part of the context in which to make a just evaluation as to whether an ostensible qualifying trigger satisfied the partial defence”. There are a number of different components that comprise the loss of control defence and sexual infidelity may well consist of one of those components, albeit not singlehandedly. This is somewhat confusing as it was supposed to be a disqualified trigger, yet how can it be disqualified if it can be included in the decision making process. Further clarity is needed in this area of the law if women are to receive the protection they require under the new law. The case of R v Dowds was heard the same time as the R v Clinton case, though a different approach was adopted by the court. Here, it was highlighted that an extremely restrictive view should be made of the qualifying triggers and that sexual infidelity should not be taken into account deciding on whether a defendant lost his or her self-control. It was said that if sexual infidelity was taken into account when determining whether this defence could be relied upon, injustice would be created. Prohibiting the sexual infidelity from being used as a qualifying trigger has proven complex and signifies the need for further clarity. Because sexual infidelity may be pertinent to the facts of any given case, injustice would be created if it was completely excluded.
Therefore, it is important that it can be given some consideration during the decision making process. The extent of how much weight should be given to this trigger raises further issues, which is why it is integral that this area of the law is given some clarity. In doing, it needs to be ensured that a balance is struck between the interests of both men and women. It is likely to prove difficult to correct the current imbalance that exists, though it is evident that some attempts are being made. Reform to this area of the law has been needed for some time, yet the new changes do not appear to have gone far enough in rectifying the pre-existing discrimination and providing a solution to victims of domestic violence and battered women’s
syndrome. As has been argued by Hill; “partial and incremental reforms of this kind risk complicating the existing system when what is needed is comprehensive and coherent reform of the type suggested by the Law Commission”. Since the problems that surrounded the old provocation defence still exist under the new defence, it is arguable whether the new defence is merely a justification or excuse for murder. The defence still appears to be favourable towards those who kill as a result of losing their temper suddenly as opposed to killing out of fear and serious violence. Moreover, because sexual infidelity is still capable of being used as a qualifying trigger, the defence can be used as an excuse for crimes of passion. Conversely, it has been contended that the new defence makes demonstrates that a defendant’s sense of grievance will not provide him or her with an excuse to use violence and that a killing that arises out of sexual infidelity alone will not allow an offence of murder to be reduced to manslaughter.
Regardless, further difficulties are still presented by the requirement that the capacity for self-control is to be decided on objective grounds. This is now expressed as the defendant’s ‘tolerance’ and ‘restraint’ and is likely to lead to the discrimination of women on the basis that women have different tolerance levels to men. Women’s’ loss of self-control should not be determined in the same way as men’s is as they are unlikely to react in a similar manner. This will result in victims of domestic violence and battered women’s syndrome from being treated unfairly and less reliance will be capable of being placed upon the defence. Under the new system, women are being subjected to unfairness as they will have to overcome a number of obstacles before reliance can be placed upon the defence. Moreover, it has also been questioned whether the degree of force that is being used by the defendant is objectively excessive. A defendant may be deprived of using the defence if an ordinary person with a normal degree of tolerance and self-restraint would not have acted in the same manner and used excessive force in a similar situation. This is clearly unfair towards women and
demonstrates how the pre-existing discrimination of women is still prevalent under the new provisions. This should be amended so that the test is a subjective one rather than an objective one as it cannot be said that individuals would react the same way to any given situation. Any inconsistencies that currently exist would be removed if the degree of force that was used by the defendant was compared to someone of the same sex and characteristic of the defendant. This would remove the pre-existing discrimination and would provide domestic violence victims and those suffering from battered women’s syndrome with greater protection.
Another issue that exists under the 2009 Act can be seen in relation to s. 54(c). Under this section, it is a requirement that the jury consider the surrounding facts and circumstances of the case when deciding whether the use of force was excessive or not. Whilst it is important for the Court to take all factors into account so that a proper decision can be made, it has been said that the focus shifts from the characteristics of the defendant onto the circumstances leading up to the offence. Again, this discriminates against women as the personal psychological characteristics will not be given relevant weight and more focus will be on the circumstances surrounding the offence as opposed to the individual concerned. As the personal psychological characteristics will be an important factor for the courts when deciding whether or not the defendant lost his or her self-control, it is important that this is being given due consideration. At present, it appears somewhat unreasonable that greater focus is being placed upon the surrounding circumstances as this is likely to disadvantage women who may have personal psychological characteristics that led to the killing taking place. Reform to this area of the law is still needed if the current imbalance is to be rectified and women are to be protected.
Overall, it is clear that rather than provide a solution to domestic violence victims and those suffering battered women’s syndrome, the 2009 Act appears is still rather discriminatory towards women and favourable to men. It was originally hoped that making the new changes under the Act, women would receive adequate protection. This does not appear to have been achieved and instead it appears as though women are still being largely discriminated against. Despite this, there are some issues that have been addressed by the new Act such as the
removal of the suddenness requirement, though much unfairness still exists. In effect, it cannot be said that the Act is accommodating to women and the original objectives of the Act are not being fully achieved. Many of the requirements that were contained in the old provocation defence are still prevalent within the new provisions, albeit a lot more restrictive. It could be said that the new Act is thereby ineffective and that women will still find it difficult to rely on the Act when they find themselves losing their self-control. The number of women who will receive a murder conviction as opposed to a manslaughter conviction will continue to be high and women will most likely have to rely on other defences in order to receive a reduced sentence, such as diminished responsibility. Even though the suddenness requirement was one of the main criticisms that surrounded the previous law, the fact that this has now been removed appears to do little to protect domestic violence victims and those suffering battered women’s syndrome. Many of the other requirements under the Act are still being deemed unfair, which results from the confusion surrounding the disqualified triggers caused by the R v Clinton case. Consequently, it is important that more clarity is provided to this area of the law so that the pre-existing gender bias can be removed. If some of the objective tests are replaced with subjective tests, it is likely that women will be given greater protection. This will allow the characteristics of the individual to be taken into account which will inevitably protect victims of domestic violence and battered women’s syndrome.
3.3 Improvements to the Law of Murder
It is clear that improvements still need to be made to the law of murder as the 2009 Act does not appear to be very accommodating to women and seems to do little to remove any of the pre-existing discrimination that existed. As a result of this, it cannot be said that the 2009 Act does actually provide a solution to victims of domestic violence and battered women’s syndrome and so further change is needed. Given that the exclusion of sexual infidelity as a qualifying trigger was a central development that was provided by the Act, further clarity is needed. Hence, the court in R v Clinton appeared to demonstrate that this particular factor could be used as a qualifying trigger even though the Act seemed to say otherwise. This has produced uncertainty to this area and highlighting the need for greater clarity. It will now be difficult to determine when sexual infidelity can be taken into account by the court and how much weight should be attached to this qualifying trigger. It has been said in view of the Clinton decision that the “consequence of imprecise and unworkable terminology has been to open the door to undeserving defendants in a manner that Parliament never intended and which is wider than that which operated under the law of provocation”. Arguably, this issues is in dire need of being addressed so as to prevent undeserving defendants from relying on the defence. This was not the intentions of parliament and signifies how the court in Clinton may have widened the scope of the new law further than was anticipated. In previous cases, sexual infidelity was always viewed with caution by courts when deciding on whether a defendant had been provoked into losing their self-control. As a result of this, it is rather surprising why this qualifying trigger appears to have been re-introduced by the Clinton decision.
For example, in R v Alexandra the provocation defence was unsuccessful when it was found that the victim had told the defendant two hours prior to the killing that she was going to live with someone else. The court in R v Holmes demonstrated that a wife’s sexual infidelity was not deemed sufficient enough to provoke the defendant into losing his self-control and that the provocation defence could not be relied upon as a result. In addition, it was also held in R v Smith (Morgan) that; “male possessiveness and jealousy would not today be an acceptable reason for loss of self-control leading to homicide”. These cases illustrate how sexual infidelity was looked upon unfavourably, yet the new law now appears to allow this to be taken into consideration provided that there exist additional qualifying triggers. Arguably, it could be said that this is necessary in making sure that a defendants argument is not completely disregarded when sexual infidelity is found, yet the extent to which this trigger should be taken into account does need explaining further. The position in the previous law was sufficiently clear in this respect, yet there now exists more confusion than ever. The wording of the clause dealing with sexual infidelity has been considered “clumsy, rigid and barely workable” on the basis that it seems to have taken a ‘one size fits all’ approach. It states; “the fact that things done or said [i.e. the qualifying trigger] constituted sexual infidelity is to be disregarded”. Exactly what amounts to ‘sexual infidelity’ is not discussed, which leaves its meaning open to debate. It is likely that sexual infidelity will be given a number of different meanings, rendering the definition broad. It is questionable whether the meaning of ‘sexual infidelity’ should be narrowly construed since
this will allow defendants to rely on the defence when their partners have ended their relationship and then started another one with a different person.
If the definition was not being interpreted narrowly, a defendant would be able to argue that they lost their self- control as a result of their ex-partners new sexual conduct. It is unacceptable for a defendant to escape a murder conviction on this basis and unless the difficulties that surround this part of the Act are rectified, it is likely that undeserving defendants will be protected. The Act should not be accommodating for such defendants given the difficulty it is for women to establish that they lost their self-control as this is clearly unjust. In addition, because there are varying degrees of sexual unfaithfulness which produce different outcomes, a subjective approach ought to be taken as opposed to an objective one. Women defendants are most likely to react to certain situations differently to men and each situation will have varying degrees of qualifying triggers. Situations will differ substantially from the next, which makes the objective approach unjustifiable. Given that it will be difficult to remove the sexual infidelity factor from a course of events triggering a loss of self-control, courts should be able to take this into account. Yet, restrictions ought to apply so that excessive weight is not being placed upon this factor alone. Because the clause dealing with sexual infidelity is so “unclear and impractical” that it leads to a great deal of confusion, reform is needed to clarify its position under the new law. At present, defendants are likely to find is easier to submit a defence that involves sexual infidelity than they would previously, when this is the opposite of what Parliament intended. In consequence, it has been asserted that this has “created the worst of both worlds”. It is evident that this area of the law is in a state of disarray and whilst the new provisions did attempt to provide better protection to women, it cannot be said that this has been done.
Chapter 4: Recommendations and Conclusion
It is recommended that changes are made to this area of the law so that clarity and precision is contained within it. At present, there is a lot of confusion that surrounds the exclusion of sexual infidelity as a qualifying trigger. The position under the previous law appeared to be a lot clear in this respect on the basis that sexual infidelity could never be taken into accounting
when deciding the defence of provocation. The scope of the new law appears to have been broadened and cases such as R v Clinton have added further confusion to the mix. As a result, it now a lot more difficult to establish when sexual infidelity can be considered as a factor when deciding whether the defendant was triggered into losing his or her self-control. Reforms should make it clear when sexual infidelity can be considered as a factor in any given case and what weight should be placed upon this as a qualifying trigger when other triggers are present. Another change that could be made to improve the law is to use a subjective test when deciding whether the loss of self-control was excessive or not. If an objective test continues to be used, certain characteristics and traits of the defendant will not be taken into account, which will disadvantage women defendants. Women are likely to react to certain situations in a different manner to men, yet if they are being treated the same, great unfairness will ensue. Although sexual infidelity should be able to be used when looking at the factors of each case, restrictions should be in place so that excessive reliance is not being placed upon this as a qualifying trigger. A definition of sexual infidelity should be provided so that confusion does not persist, yet this will most likely prove difficult to achieve. The fact that the new loss of control defence is largely concerned with anger as opposed to fear produces further complexities as women are more likely to act out of fear than anger. This is another area which maintains the pre-existing discrimination and it seems as though the loss of control image should focus more on fear than is does at present. This would make it easier for women to seek protection under the Act and would prevent women being disadvantaged when they act out of fear of serious violence. Rather than providing a solution to victims of domestic violence and battered women’s syndrome it seems as though the new provisions merely reflect the old position and maintain the discriminations that previously existed. It is arguable whether this can ever be changed but some attempt to clarify this area of the law and provide such victims with greater protection is needed.
The common law defence of provocation was in dire need of reform as it produced much inconsistency and unfairness towards women. Victims of domestic violence and battered women’s syndrome where not receiving the protection they desired under the law and injustice was often being created. The common law defence of provocation was therefore abolished and replaced by the defence of loss of control by virtue of the Coroners and Justice Act (CJA) 2009. The new provisions intended to rectify the inadequacies of the provocation defence and provide victims of domestic violence and battered women’s syndrome with better protection. The reform process began in 2003 as the provocation defence was considered “inherently contradictory” and uncertain. It was extremely difficult to determine what was meant by a ‘loss of self-control’ and because it was held in R v Duffy that the loss of control must be “sudden and temporary,” women were being disadvantaged. This is because men were more likely to have a “sudden and temporary” loss of self-control than women who are more prone to the slow burn effect as in R v Ahluwalia. It was manifest that the law had been in a state of disarray for some time, which led to the introduction of the new loss of control defence in pursuant of the 2009 Act. This Act was implemented after the Government published a consultation paper in 2008 laying down the new provisions and demonstrating the unfairness of the previous law. The defence is provided by s. 54 of the 2009 Act, and ultimately seeks to eliminate the gender bias created by the provocation defence. At first instance, the new provisions did appear to be extremely welcoming in that the ‘suddenness’ requirement was removed and women no longer had to show that their loss of self-control was ‘sudden and temporary’. Given that the suddenness requirement was responsible for a large part of the previous laws failures, it seemed that women were finally receiving the protection they deserved and those who were subject to the ‘slow burn effect’ were being provided with a defence to murder.
However, it seems as though the pre-existing discriminations that existed under the old law were still being maintained under the 2009 Act. The decision in R v Clinton, Parker, Evans was the first important ruling that out the new defence to the test. This case was primarily concerned with the issue of whether sexual infidelity should be excluded from consideration in a case that involved additional qualifying triggers. In the case, the judge held that sexual infidelity could only be considered as part of the contextual background if other triggers were present. As a result of this, it became apparent that sexual infidelity must be excluded if it is the only trigger available. This has caused some confusion since the provisions appeared to completely exclude the trigger, yet the Clinton case has allowed it to be taken into account. Furthermore, because an objective approach is being undertaken, personal psychological factors are not being considered. Again, this disadvantages women whose psychological attributes will most likely have contributed to the killing, especially if they are victims of domestic violence and battered women’s syndrome. Although the new loss of control defence has made some improvements to the law, there still exists much difficulty. This highlights the need for further reform and clarification so that sufficient protection is being provided to women and so that any confusion is removed. It is believed that the decision in Clinton was wrong because of the fact that the new provisions made it clear that sexual infidelity should be completely excluded. Thus, because the court stated that it could be used as a determining factor ambiguity now persists. In order to ensure that women are being better protected and to provide clarity to this area, further changes need to be made that will remove any pre-existing discrimination and provide a solution for victims of domestic violence and battered women’s syndrome when faced with charges of murder resulting from a loss of self-control. It is unlikely that the judiciary alone will be able to provide clarity to this area as there has already been some confusion as to how the new law ought to be applied. This signifies the need for legislative reform if injustice is to be prevented.
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Coroners and Justice Act 2009
Homicide Act 1957
Attorney-General’s Reference (No. 23 of 2011) (R v Williams (Sanchez))  EWCA Crim 1496
Drury v HM Advocate  SLT 1013
R v Ahluwalia  4 All ER 889
R v Alexandra (1914) 9 Cr App R 139
R v Clinton, Parker, Evans  EWCA Crim 2
R v Dowds  EWCA Crim 281
R v Duffy (1949) 1 AER 932
R v Holmes  AC 588
R v Smith (Morgan)  AC 146
R v Thornton  1 WLR 1174