Defence of Loss of Control - Essay Example

Defence of Loss of Control The defence of provocation in murder was replaced by the defence of loss of control, as a consequence of the Coroners and Justice Act 2009, which became effective in the year 2010. However, sexual infidelity was exempted as a reason for loss of control. Nevertheless, the ruling of the Court of Appeal permitted individuals accused of murder to reuse evidence that their victims’ infidelity towards them was the cause of their losing control and killing the victims.1 Prior to the enactment of the Coroners and Justice Act 2009, it had been possible to plead a defence of provocation under the Homicide Act 1957. 2 This was supplanted by the defence of loss of control that had been induced by a triggering event, under the Coroners and Justice Act 2009. 3 The principal changes effected by the new act are; absence of a requirement for the loss of control to be abrupt; exclusion of sexual infidelity as a qualifying trigger; requiring a qualifying trigger to pertain to fear of violence from the deceased or to things said or done. 4 With regard to triggers that are based on things said or done, the requirements are that the extenuating circumstances should be very grave in character, and these circumstances should have justifiably made the defendant believe that he been wronged. In the event of such fear having been incited by the defendant, then it is to be ignored. 5 The Coroners and Justice Act 2009 specifies that loss of control has to be on the basis of one of the qualifying triggers, if the defence is to be successful. These are loss of self – control that can be attributed to a fear of serious violence, as provided under section 55(3); or on account of circumstances of an extremely serious nature, which result in a justifiable sense of having been wronged. The latter qualifying trigger has been provided under section 55(4)(a) and 55(4)(b) of the Act. 6 The difficulty associated with the provisions of this Act is that a defence wherein the defendant has probably acted out of danger is placed in the same category as a defence attributed to fear. However, there is some improvement, as the law has now come to recognise that loss of self – control can be occasioned by emotions other than rage.7 This is of great benefit to battered women who kill or grievously injure their tormentor. Under the provisions of the Homicide Act 1957, the defendant should have experienced a loss of self – control. The 2009 Act has clarified that loss of self – control was not required to be spontaneous. However, the presence of the term extremely grave character in the 2009 Act, will in all probability, cause considerable nuisance for the courts, while ascertaining the situations that would be encompassed by it. This novel piece of legislation has the capacity to benefit women to a considerable extent, as it incorporates fear as a qualifying trigger for loss of self – control. At the same time, men could be placed at a distinct disadvantage, because of the explicit exclusion of sexual infidelity as a qualifying trigger. 8 Although, the government accepted the analysis of the Law Commission, which claimed that there was every justification for a partial defence of diminished responsibility; it refused to revise the structure for homicide or to abolish the obligatory life imprisonment for murder. This could prove to be inequitable for battered women and other vulnerable individuals who deliberately kill in response to their untenable plight. Such persons could be convicted as murderers.9 Loss of control, as per the law pertaining to the partial defence to murder, has to include sexual infidelity as a trigger for the violent act. For example, in R v Clinton, the accused was charged with the murder of his wife. He pleaded guilty to manslaughter, but contested the murder charge on the grounds of diminished responsibility or loss of control. Circumstances of great gravity, which develop a justifiable sense of having been seriously wronged, in the defendant, can be classified as a qualifying trigger. This has to be accompanied by the danger of grievous violence that has not been provoked by the defendant. The relevant legislation excluded sexual infidelity from the class of such circumstances.10 Despite appearing similar to the defence of provocation in the requirements, the defence of loss of control under the Coroners and Justice Act 200911 tends to be much more restrictive in its application.12 As such, in R v Clinton,13 the Crown Court had convicted the appellant for the murder of his wife. The appellant had stated in his evidence that his wife, during a trial separation, had admitted to having engaged in sexual intercourse with several persons. This had induced the appellant to commit the fatal act. 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.14 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.15 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. 16 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. 17 The provisions of the Coroners and Justice Act 2009 are aimed at preventing individuals who commit crimes of passion, from being charged with the lesser offence of manslaughter, when they kill some other person. To this end, this Act rescinded the defence of provocation, and it specifically excluded sexual infidelity from the defence of loss of control. 18 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. 19 In addition, with the decision in R v Clinton, the Court of Appeal has apparently modified the objective of the legislature in enacting the Coroners and Justice Act 2009. 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. 20 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. 21 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.22 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. 23 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. 24 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. 25 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, 26 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,27 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. 28 Moreover, in Holmes v DPP,29 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. 30 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. As a result, the jury would have to distinguish between extremely grave circumstances that are not justifiable in invoking a sense of being seriously wrong and those that can be so construed. All the same it is possible to assume that if the circumstances can be categorised as being grave, then there is every possibility that these circumstances could also be deemed to justify a sense of having been seriously wronged. 31 This raises the distinct possibility of attributing a motive of revenge in cases where the offender had been subjected to terror. Thus, a woman who kills her husband and states that the deceased had abused her and kept her under a reign of terror could be deemed to have been motivated by revenge.32 The Coroners and Justice Act 2009, effectively discounts such defence and compels the hapless woman to convince the jury about the reasonableness of her deeds. Another problematic feature of 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.33 Moreover, the jury will continue to assess on the basis of gender. In this evaluation, the male is expected to be violent. Consequently, the acts of male violence could be condoned, justified and even valorised. On the other hand, 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. 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. Bibliography Dennis J Baker & Lucy X Zhao, Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity, Journal of Criminal Law, vol. 76, no. 3, 2012, pp. 254 – 275. Bentham, Martin, Judge: Infidelity can be defence in murder cases, Evening Standard [London], 17 January 2012, p.27. 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. Cobb, Neil, R v Clinton: loss of control and sexual infidelity, 20 January 2012, retrieved 19 October 2012, . Coroners and Justice Act 2009. Edwards, Susan SM, ‘Anger and Fear as Justifiable Preludes for Loss of Self – Control, Journal of Criminal Law, vol. 74, no. 3, 2010, pp. 223 – 241. Fitzpatrick, Andy, & Mark George, Loss Of Control – partial defence to murder, 4 May 2012, retrieved 19 October 2012, . Homicide Act 1957. Loveless, Janet, Complete Criminal Law: Text, Cases, and Materials, 3rd edn, Oxford University Press, 2012. New trial ordered in loss of control murder case, Irish Times [Dublin], 13 February 2012, p.20. Reed, Alan, & Michael Bohlander, Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives, Ashgate Publishing, Ltd, 2011. ‘Relevance of sexual infidelity of victim in defence to murder: Law Report, The Times [London], 30 January 2012, p.49. R v Alexander (1913) 9 Cr App R 139. R v Clinton (Jon-Jacques) [2012] EWCA Crim 2. R v Holmes [1946] AC 588. R v Mawgridge [1706] Kel 119. Sexual Infidelity And Loss Of Control: R V Clinton (Jon – Jacques) [2012] EWCA Crim 2, 11 April 2012, retrieved 18 October 2012, . The defence of Loss of Control – Voluntary manslaughter, retrieved 18 October 2012, < http://www.e-lawresources.co.uk/Loss-of-control.php>. Voluntary Manslaughter - Provocation, retrieved 18 October 2012, . Whitehead, Tom & Andrew Hough, Infidelity can be murder defence again in Britain, Independent, ie, 18 January 2012, retrieved 18 October 2012, . Read More