Compare the defence of provocation to the new defence of Loss of control

Despite appearing similar to the defence of provocation in the requirements, the defence of loss of control under the Coroners and Justice Act 2009 tends to be much more restrictive in its application.  As such, in R v Clinton, the Crown Court had convicted the appellant for the murder of his wife. The presiding judge held that this evidence was sexual infidelity, and as a result was not to be considered for the purposes of the partial defence. In the absence of any other triggers for the loss of self – control, this defence was disregarded by the jury. 

The appeal was based on the correctness of the above decision. Some of the problems to be resolved by the Court of Appeal were the definition of sexual infidelity; how a thing, by itself, can constitute sexual infidelity; the extent of the prohibition with regard to the relevance of sexual infidelity to other potential triggers. References by the Court of Appeal to Hansard did not provide adequate guidance, with regard to the interpretation of this provision. 

The Appellate Court desisted from defining the term sexual infidelity, which had not been defined by the statute and which had not been clarified in Parliamentary deliberations. In this case, counsel had submitted that infidelity constituted a breach of mutual understanding, which was to be deduced from or to be found explicitly in the relationship.  

This was not adopted by the Court of Appeal, which opined that the best description of infidelity was that it indicated a relationship between two individuals, wherein one of the parties could have been unfaithful. In this case, the relationship was one of matrimony; hence, there was no necessity to delve into the types of relationships that would generate a duty of sexual fidelity. 

To this end, this Act rescinded the defence of provocation, and it specifically excluded sexual infidelity from the defence of loss of control.  

However, in R v Clinton, the presiding judge was not in agreement with this exclusion. It was that judge’s considered opinion that sexual betrayal had an overwhelming influence and that this made it unreasonable to segregate events from their background. He further stated that it was unrealistic to isolate and exclude sexual infidelity when it formed part and parcel of the facts of the case in their entirety. Believing that such exclusion could lead to injustice, the presiding judge ordered a retrial in R v Clinton. 

In its ruling in this case, the Court conceded that sexual infidelity, in isolation, did not constitute a qualifying trigger for the defence, as necessitated by section 54 of the Act. The Court made the observation that in instances, wherein sexual infidelity was integral to and constituted an indispensable part, the prohibition stipulated under section 55(6) of the Act, did not exclude it.  

 Moreover, the decision in R v Clinton has diluted a provision that was especially formulated for restricting recourse to the defence of loss of control by abusive men who did their partners to death. However, the notion of sexual infidelity as a qualifying trigger for the defence has proved to be muddled. Consequently it generates certain random distinctions between conduct that is excluded outright and behaviour that can be considered by the judge and jury.  

In R v Clinton, the qualifying trigger for the fatal act relied upon the circumstance that the loss of control of the defendant was due to the things said or done. These were contended to be very serious, and to have induced the defendant to harbour a justifiable sense of having been seriously wronged. 

It is to be noted that section 55(6) of the Coroners and Justice Act 2009 states that the fact or thing done or said constitutes sexual infidelity is not to be considered. However, this subsidiary section of the Act has given rise to several obscurities. 

The conclusion that one is forced to draw is that if sexual infidelity were to be the sole qualifying trigger, then the court would construe that there was no qualifying trigger. In the event of the defendant taking recourse to sexual infidelity, the court should direct the jury with regard to the statutory requirements necessary for qualifying triggers; and the preclusion of sexual infidelity, in isolation, as a qualifying trigger by the statute.  

Moreover, the judge should also instruct the jury regarding the aspects of the case that were either apparent to the trial judge or which had been identified by the defence, as constituting permissible triggers. In addition, the judge should instruct the jury that if they were to reject the triggers, then sexual infidelity would have to be overlooked. Finally, the judge should instruct the jury that if sexual infidelity were to be considered an admissible trigger, then they would have to assess the trigger and decide whether the necessary statutory ingredients had been established.  

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The following case law reveals the attitude of the courts in deciding the issue of infidelity as a defence, on several occasions.  

In R v Mawgridge,  the court ruled that jealousy constituted the rage of man and that adultery was the most serious form of invasion of property. However, with the progress of time and by the 20th century, the courts held that mere confessions of adultery were not of sufficient severity, and that there had to be attendant exceptional circumstances. Consequently, in the case of R v Alexander, wherein the deceased had informed the accused that she would be taking up residence with some other person, and in which the accused killed the deceased, two hours after being so informed, the court held the defendant to be guilty.  

Moreover, in Holmes v DPP, the wife had stated that she had indulged in adultery, and she had also admitted to having committed a wrongful act. The judge decided that the provocation was insufficient justification for the defendant’s act and withdrew the defence from the jury.   As such, what constitutes a justifiable sense of serious wrong is decided by the jury with reference to a context.

Adjudication has rightly been vested with the jury, and the entire exercise is based on an objective test. This ensures fair play regardless of the extent to which the defendant deems himself to have been wronged. 

Another difficulty with this new Act is that it relies upon the term excessive. This term on being used with the fear of a female of a husband or partner who humiliates, terrorises and abuses her, in the context of loss of control; will serve to defeat the purpose for which Parliament had enacted the Coroners and Justice Act 2009. It is expected by this legislation that she will have to conduct herself as a normal female who is envisaging abnormal circumstances; reacting as an expert in predicting outcomes; and adopting the required preventive measures. 

Moreover, the jury will continue to assess on the basis of gender. In this evaluation, the male is expected to be violent; hence, his violent acts could be condoned, justified and even valorised. Conversely, the violence committed by women will be incomprehensible, even when it is in self – defence or as a measure of self – preservation. In case, the woman has been traumatised to the extent that she experiences mental instability, she will have to convince the jury that she is neither insane nor bad. Furthermore, her lawyers will have to produce expert witnesses who will confirm that her reaction to the recurring violence was a reasonable response.

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Prior to the enactment of the Coroners and Justice Act 2009, anything said or done, which would induce a reasonable individual to lose self – control could have qualified as a trigger. This had provided considerable scope to the defence, although the courts had adopted a restrictive interpretation. At present, the Coroners and Justice Act 2009, has drastically reduced the scope, as it permits only the exceedingly serious circumstances, in this regard. Moreover, these circumstances should have the capacity to produce in the defendant the sense of having been seriously wronged. Furthermore, the jury should come to the decision that this sense of having been wronged is justifiable.

It can be concluded that the Coroners and Justice Act 2009 does not accord justice, under all circumstances, to the parties. This is due to the fact that defence of provocation has been replaced by the partial defence of loss of control. As a result there is a policy transition from partially condoning anger to that of fear of serious violence as a defence. This could place the defendant in an unenviable position, as it may prove to be very difficult to establish such qualifying triggers.

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Bibliography

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Clough, Amanda, ‘Loss of Self-control as a Defence: The Key to Replacing Provocation', Journal of Criminal Law, vol. 74, no. 2, 2010, pp. 118 – 126.

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