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Published online by Cambridge University Press:  08 May 2015

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In October 2010, the UK Parliament brought into effect law that replaced the partial defence to murder of provocation with a new partial defence of “loss of control”, applicable to England, Wales, and Northern Ireland. Although it retained some key features of its controversial predecessor, the new partial defence was in part designed better to address the gendered contexts within which a large number of homicides are committed. In examining the impact of the reforms, we will focus on long-held concerns about the treatment of sexual infidelity as a trigger for loss of control in murder cases. The article undertakes an analysis of English case law to evaluate the way in which sexual infidelity-related evidence has influenced perceptions of a homicide defendant's culpability, for the purposes of sentencing, both before and after the implementation of reform. The analysis reveals that, in sentencing offenders post reform, the higher courts have failed to follow the spirit of the reforms respecting the substantive law by effecting a corresponding change in sentencing practice.

Copyright © Cambridge Law Journal and Contributors 2015 

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1 A good deal of credit for sparking off the modern debate in Anglo-American legal theory must go to Lenore E. Walker's seminal work on what came to be known as “battered woman syndrome”: see Walker, Lenore E., “Who Are the Battered Women?” (1977) 2 Journal of Women's Studies 52Google Scholar. For relatively early English essays on the doctrine, see Ashworth, Andrew, “The Doctrine of Provocation” [1976] C.L.J. 292CrossRefGoogle Scholar; O'Donovan, Katherine, “Defences for Battered Women Who Kill” (1991) 18 Journal of Law and Society 219CrossRefGoogle Scholar. See also references included at note 10 below.

2 Douglas, H., “A Consideration of the Merits of Specialized Homicide Offences and Defences for Battered Women” (2012) 45(3) A.N.Z.J.Crim. 367CrossRefGoogle Scholar; Fitz-Gibbon, K., Homicide Law Reform, Gender and the Provocation Defence (Aldershot 2014)CrossRefGoogle Scholar.

3 Bradfield, R., “Contemporary Comment: The Demise of Provocation in Tasmania” (2003) 27 C.L.R. 322Google Scholar; Fitz-Gibbon, K. and Pickering, S., “Homicide Law Reform in Victoria, Australia: From provocation to defensive homicide and beyond51(1) Brit.J.Criminol. 159Google Scholar; Stewart, F. and Freiberg, A., “Provocation in Sentencing: A Culpability-Based Framework” (2008) 19(3) C.I.C.J. 283Google Scholar.

4 Coroners and Justice Act 2009, s. 55(6)(c). This is a loose statement of the legal position, more detail on which will be given shortly.

5 In theory, this may not always be the exact time of the killing. Loss of self-control, like diminished responsibility, is available to complicit parties, whose contribution (as by encouragement or assistance) following a loss of self-control may precede the killing.

6 There are other requirements to be met, if the defence is to be successful, but they are not relevant here.

7 Quick, O. and Wells, C., “Partial Reform of Partial Defences: Developments in England and Wales” (2012) 45(3) A.N.Z.J.Crim. 337CrossRefGoogle Scholar.

8 Ministry of Justice, Murder, Manslaughter and Infanticide: Proposals for Reform of the Law: Summary of Responses and Government Position (London 2009), 14Google Scholar.

9 R. v Clinton, Parker and Evans [2012] EWCA Crim 2.

10 Edwards, S., “Loss of Self-Control: When His Anger Is Worth More than Her Fear” in Reed, A. and Bohlander, M. (eds.), Loss of Self-Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Farnham 2011), 79Google Scholar; Fitz-Gibbon, Homicide Law Reform; Fitz-Gibbon, K., “Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Self-Control” [2013] 40 Journal of Law and Society 280CrossRefGoogle Scholar; B. Mitchell, “Loss of Self-Control under the Coroner's and Justice Act 2009: Oh No!” in Reed and Bohlander, Loss of Self-Control, p. 39; Quick, O. and Wells, C., “Partial Reform of Partial Defences: Developments in England and Wales” (2012) 45(3) A.N.Z.J.Crim. 337CrossRefGoogle Scholar.

11 There is support for this view in some of the speeches of Government ministers introducing and explaining the Bill that preceded the Act. For example, Claire Ward M.P., speaking for the Government, said “If something else is relied on as the qualifying trigger, any sexual infidelity that forms part of the background can be considered but it cannot be the trigger. That is essentially what the legislation seeks to do – to stop the act of sexual infidelity being the trigger that enables people to say that these are extremely serious and grave circumstances” (House of Commons Debates, 9 November 2009, column 94). On this point, see Clinton, Parker and Evans [2012] EWCA Crim 2.

12 Note, though, that the evidence of something said or done constituting sexual infidelity may still be admissible, as evidence that D in fact lost self-control. Moreover, evidence of sexual infidelity may be relevant to the question, under s.54(1)(c) of the 2009 Act, whether a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way.

13 Clinton, Parker and Evans [2012] EWCA Crim 2, at [39], per Lord Judge C.J.

14 Murder (Abolition of the Death Penalty) Act 1965 (UK). Section 1 of the Act mandates that all offenders over the age of 21 years convicted of murder must be sentenced to life imprisonment.

15 Criminal Justice Act 2003, s. 269(3).

16 Sch. 21, s. 4(1). Section 4(2) gives examples of murders that ought normally to fall within this category, such as the premeditated planning of two or more people; a murder to advance a political, religious, racial or ideological cause; or a murder by someone previously convicted of murder.

17 For a more detailed discussion of how the partial defence of loss of control seeks to provide a more adequate response to this context of homicide, see K. Fitz-Gibbon, “Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Self-Control” [2013] 40 Journal of Law and Society 280.

18 R v Ahluwalia [1992] 4 All E.R. 889.

19 The Sentencing Guidelines Council has suggested that the use of a weapon at the scene may not necessarily be an aggravating feature, if such conduct reflected an imbalance of strength between defendant and victim, but the Council did not extend this argument to cases in which the weapon is intentionally taken to the scene: <>, para. 3.7. It is possible that a modern court, considering the facts of Ahluwalia, might take the view that transferring the petrol from the garage to the house is not taking a weapon to a different “scene”, given that both places were within the curtilage.

20 See the helpful discussion in J. Herring, “The Serious Wrong of Domestic Abuse and the Loss of Self-Control Defence”, in Reed and Bohlander, Loss of Self-Control, p. 65.

21 R v Manning (or Maddy) (1617) 1 Vent. 158, 158–59.

22 R v Mawgridge (1707) Kel. 119, 137, per Holt C.J.

23 Weiner, M., “Judges v. Jurors: Courtroom Tensions in Murder Trials and the Law of Criminal Responsibility in Nineteenth-Century England” (1999) 17 L.H.R. 469Google Scholar.

24 See Cairns, D.J.A., Advocacy and the Making of the Adversarial Criminal Trial 1800–1865 (Oxford 1998), 3Google Scholar.

25 See Weiner, “Judges v. Jurors”, pp. 474–75. Weiner cites barrister Charles Kingston for the view that the summing-up by an Old Bailey judge has often been the deadliest weapon of the prosecution”: The Bench and the Dock (London 1925), 36Google Scholar, along with Sir James Stephen's observation of the natural and genuine bias of professional judges in favour of authority and all its agents”: A General View of the Criminal Law of England (London 1863), 208Google Scholar. It is possible that judges were in part influenced by the accepted view that a defence advocate's duty was to press the strongest arguments in favour of acquittal, even if the accused had confessed guilt to his or her advocate, although one effect of the Prisoners' Counsel Act 1836 was to persuade prosecutors that they need no longer observe the formerly customary restraints on the way that conduct their case: see Cairns, Advocacy, ch. 6.

26 Daily News, 28 August 1846, cited by Weiner, “Judges v. Jurors”, p. 478.

27 “R. v. Templeton (1840)”, The Times, 14 May 1840, cited by Weiner, “Judges v. Jurors”, p. 484.

28 “R v Buckley”, The Times, 10 April 1843; HO 12/102/24, cited by Weiner, “Judges v. Jurors”, p. 486, n. 61.

29 Weiner, “Judges v. Jurors”, p. 486. See also J. Horder, Provocation and Responsibility (Oxford 1992), ch. 5, for discussion of the emergence of the “serious harm” view of provocation, and the hardening of judicial attitudes to excuses more broadly at the end of the nineteenth and beginning of the twentieth centuries.

30 For further discussion of the cases, see Weiner, “Judges v. Jurors”, pp. 483–88.

31 See ibid.

32 Holmes v D.P.P. [1946] A.C. 588. For discussion of this case in the context of the development of the law as a whole, see Horder, J., Homicide and the Politics of Law Reform (Oxford 2013), 206–10Google Scholar. For the execution statistics, see <>.

33 Holmes [1946] A.C. 588, 600–01.

34 See Horder, Homicide.

35 See Weiner, “Judges v. Jurors”, p. 475.

36 Homes [1946] A.C. 588, 601.

37 At least in so far as it reflected the attitudes of the “lower classes”.

38 R. v Melentin [1985] 7 Cr. App. R.(S) 9, discussed in Horder, Provocation and Responsibility, pp. 153, 193.

39 Melentin [1985] 7 Cr. App. R.(S) 9, 10.

40 Tov-Ruach, L., “Jealous, Attention and Loss” in Rorty, A. (ed.), Explaining Emotions (Berkeley 1980), 582–83Google Scholar.

41 Attorney General's Reference (Nos74, 95 and 118 of 2002) [2002] EWCA Crim 2982. See the helpful discussion in M. Burton, “Sentencing Domestic Homicide upon Provocation: Still ‘Getting Away with Murder’” (2003) 11 Feminist L.S. 279.

42 See text at note 33 above.

43 Also citing the opinion of Lord Hoffmann in R. v Smith (Morgan) [2001] 1 A.C. 146, 169 F–G.

44 Burton, “Sentencing Domestic Homicide”, p. 286.

45 For criticism of this glaring omission, see ibid.

46 Attorney General's Reference (Nos 74, 95 and 118 of 2002) [2002] EWCA Crim 2982, at [23]–[30].

47 Ibid., at paras. [26]–[27].

48 Ibid., at para. [11]. Rather weakly, the Sentencing Guidelines Council has done little to counter this approach in its sentencing guidelines, saying merely that “discovery or knowledge of the fact of infidelity on the part of a partner does not necessarily amount to high provocation. The gravity of such provocation depends entirely on all attendant circumstances”; see, para. 3.2.

49 See generally Joseph Raz: the courts are, or at least they should be, above the rough-and-tumble of everyday political pressures. They should be relatively immune to passing fashions. In constitutional matters, they may succeed in representing a lasting consensus …”, in Raz, J., The Morality of Freedom (Oxford 1986), 260Google Scholar.

50 Ashworth, A. et al. , Oxford Pilot Study: Sentencing in the Crown Court: Report of an Exploratory Study (Oxford 1984), 3034Google Scholar.

51 Attorney General's Reference (Nos 74, 95 and 118 of 2002) [2002] EWCA Crim 2982, at [62].

53 Burton, “Sentencing Domestic Homicide”.

54 See e.g. Coss, G., “The Defence of Provocation: An Acrimonious Divorce from Reality”, 18(1) C.I.C.J., 51Google Scholar; Fitz-Gibbon, Homicide Law Reform; Horder, Provocation and Responsibility, ch. 9; Morgan, J., “Provocation Law and Facts: Dead Women Tell No Tales, Tales Are Told about Them” (1997) 21 M.U.L.R. 237Google Scholar.

55 Sch. 21(6).

56 Sch. 21(11)(b).

57 While this cannot be used in mitigation, where D does have such a history that will be an aggravating factor: R. v O'Brien (2005) 2 Cr. App. R.(S) 58; Practice Statement of May 2002 [2002] 1 W.L.R. 1789, para. 14 (Lord Woolf C.J.).

58 This is sometimes explained by judges in terms of D's “inability to deal with the situation” in which he faces sexual infidelity in some form: AG's Reference (No 106 of 2004) [2005] 1 Cr. App. R.(S) 120, 682.

59 R. v Crowston [2006] 1 Cr. App. R.(S) 103.

60 R. v Simmons [2010] 1 Cr. App. R.(S) 68, 483.

61 R. v Genestin [2009] 1 Cr. App. R.(S) 97, 558.

62 Genestin [2009] 1 Cr. App. R.(S) 97.

63 There were other more minor aggravating features in Genestin, such as temporary concealment of the body.

64 R. v Taylor (2009) 1 Cr. App. R.(S) 7, 31.

65 We have already noted the risk that, if premeditation is treated in an indiscriminate way as an aggravating factor, that will wrongly count against many abused women who kill.

66 Attorney General's Reference (No 23 of 2011) [2012] 1 Cr. App. R.(S) 45.

67 Ibid., at p. 268. For the effects of domestic violence on children in a US study, see D. Ficelhor et al., “Children's Exposure to Violence: A Comprehensive National Survey” (2009), available at <https://>.

68 This is significant, especially when that is put together with the courts determination – illustrated by the passage – to regard a history of domestic violence as an aggravating factor.

69 Attorney General's Reference (No 23 of 2011) [2010] 2 Cr. App. R.(S) 45.

70 Ibid., at p. 270, emphasis added. See further V. Tadros, “The Distinctiveness of Domestic Abuse: a Freedom-Based Account” (2004–05) 65 La.L.Rev. 989.

71 R. v Haywood [2011] 2 Cr. App. R.(S) 71.

72 Ibid., at p. 410, emphasis added.

73 It will be recalled that Sch. 21 includes as a mitigating feature the fact that “the offender was provoked (for example by prolonged stress)”.

74 Haywood [2012] 1 Cr. App. R.(S) 45.

75 See note 66 above.

76 Haywood [2012] 1 Cr. App. R.(S) 45, 268.

77 Criminal Justice Act 2003, Sch. 21(11)(c), dealing with evidence of mental disorder or disability that was not sufficient for the purposes of the defence of diminished responsibility.

78 For discussion of the difficulties encountered when abused women must describe their mental state at the time of killing as a loss of self-control, see Edwards, “Loss of Self-Control”.

79 For a recent discussion, see C. McNaughton et al. (2014) “Violence, Abuse and Mental Health in England”, available at <>.

80 Haywood [2012] 1 Cr. App. R.(S) 45, 268. See the passage cited in the text at note 76 above.

81 Haywood [2011] 2 Cr. App. R. (S) 71.

82 Manning (1617) 1 Vent. 158.

83 Ibid., at pp. 158–59.

84 Emphasis added. Thomas, D.A., “Form and Function in Criminal Law”, in Glazebrook, P.R. (ed), Reshaping the Criminal Law (London 1978) 21Google Scholar, at p. 27, cited by Wasik, M., “Sentencing in Homicide”, in Ashworth, A. and Mitchell, B. (eds.), Rethinking English Homicide Law (Oxford 2000), 168Google Scholar.

85 R v Johnson [1989] 1 W.L.R. 740 (CA).

86 As Abella J. put it in R. v Cairney, 2013 SCC 55, speaking of self-induced provocation at [83], “The law never condones the conduct that gives rise to the defence of provocation. That is why provocation is only a partial defence, reducing the offence from murder to manslaughter and why the defence of provocation in the circumstances of this case in no way absolves the accused. Cairney's nine-year prison sentence was based on the fact that he caused Ferguson's death by using a firearm in the dispute”. For an extensive discussion of “self-induced” provocation, see now Richard Anthony Daniel v The State [2014] UKPC 3.

87 HC Debates, 9 November 2009, col. 94.

88 Ibid., col. 83.

89 House of Commons Justice Committee, 6th Report (session 2008–09), “Sentencing Guidelines and Parliament: Building a Bridge”, available at <>.