The main objective of thisessay is to determine whether the Coroners and Justice Act 2009, has managed tosuccessfully highlight the issues that surrounded the defence of loss ofcontrol (Provocation).
We will also be talking about if the victims of domesticviolence and battered women’s syndrome are able to use the defence of loss ofcontrol and to see if they are provided with protection. The growth of case lawregarding provocation will be analysed in order to know the effectiveness ofthe new loss of control defence.Currently, there is no precisedefence of domestic violence in English law, insteadof as an alternative, the courts use the fatal and non-fatal offences toprosecute the defendant. The defence of “provocation was laid down in section 3of the Homicide Act 1957″1,which also showed how the courts started to consider the experiences sufferedby the defendants as a result of being subjected to domestic violence orsuffering from battered women’s syndrome. However, it was not enough and therefore,the defence of provocation was subjected to a lot of criticism for not beingable to provide adequate protection to the victims of domestic violence.
As aresult, the defence of provocation was replaced by the defence of loss of controlwhich was introduced under section 54 of the Coroners and Justice Act toresolve these problems, yet is debatablewhether or not this has been achieved. It was argued in courts thatwhen applying the defence there was lack of consistency and this was due to thefact that gender bias still existed. The defence of provocation is only availablewhere the killing had occurred “suddenly” and in “hot blood” in response to anact of provocation by the deceased2.Similarly, a report by Law commission showed that “abused woman kills her male partner in fear of further violence and thesituation of the male partner who kills in a sudden jealous rage”3. Therefore,suggesting that defence was more positive for men as they are more likely tolose their temper suddenly in comparison to women who were at a disadvantage asthey are more likely to kill out of fear of serious violence. The purpose of introducing thedefence of loss of control was to try to reduce the criticism in this area oflaw but it seems as though more problems started to surface.
Those individualssuffering from battered women syndrome or domestic violence were beingdifferentiated because of the requirements of the defence. As under theold law, women were not given the security they required when raising the defenceof provocation. As seen in the case of R v Duffy1949, where Devlin Jstated “that “Provocationis some act, or series of acts, done by the dead man to the accused which wouldcause in any reasonable person, and actually causes in the accused, a suddenand temporary loss of self-control, rendering the accused so subject to passionas to make him or her for the moment not master of his mind.”4Suggesting that the existence of a sudden and temporary loss of control isessential for the defence to be successful.This was particularly problematicfor women to show that they lost their control in a sudden and for a brief mannerin comparison to men.
Henceforth, it suggested that men profited from thisdefence more than women, which was extremely prejudiced. This point was explained bythe Law Commission when they said that the requirement of loss of self-controlis extremely biased towards individuals who have a fast temper. This was trickyfor those women who suffered a slow burn effect when being exposed to domesticviolence as seen in the case of R vAhluwalia 1993 “wherethe defendant poured petrol and caustic soda onto her husband while he wassleeping and then set fire to him. Onthe night of the killing, he hadthreatened to hit her with an iron and told her that he would beat her the nextday if she did not provide him with money”5.The Defendant failed to use the defence of provocation on the grounds that herloss of control was not sudden and temporary.
As in the Law Commission report,it was said that “Some of its rules have remained unaltered since theseventeenth century, even though it has long been acknowledged that they are indire need of reform”6. Emphasizing that law needs to reformed soon. As it islikely that women would be too scared to act in a sudden manner in front of herabusive partner as women are generally not as strong as men so it is moreapparent that some kind of pre-meditation would be involved. Especially, sincethe decision in Duffy, women were more likely to look for other defences toreduce the offence of murder to manslaughter, such as diminishedresponsibility.Likewise, Jeremy Horder “putsforward the idea that requirement of a loss of self-control should be abolishedand be further replaced with a requirement of ‘extreme emotional disturbance’at the time of the killing”7. Also, there should be an inclination toconsent that whatever “exceptional morally troubling examples there may be,there is, in general, insufficient justification for reducing murder tomanslaughter on the grounds of gravely provoked anger alone”8.
Horder argues “that the role whichprovocation should play in law lies, not in its role as a defence, but as amitigating factor to be considered in sentencing”9. “Provocationought no more to be regarded as inviting personal retaliation than a woman’sstyle of dress invites rape”10. Nonetheless, a vast majority of researcherswere against to a test of emotional disruption, “primarily on the ground that it was too vague.11 The degree to which the existing lawwill be considered as ‘successful’ is still a problem.However, “The courts have responded by extending the conceptof sudden and temporary loss of self-control to include “slow-burn” cases butat the cost of making the concept of loss of self-control less clear”12.
Fortunately,it can be seen that the new defence of loss of control is more beneficial forwomen as now there is no longer a requirement to show that the loss of controlwas sudden and temporary. Arguably, massive developmentshave been made in this area of the law, nonetheless, many fundamental problems stillexist which indicates that gender discernment is still predominant.Subsequently, if the Coroners and Justice Act 2009 is to offer a solution tothose suffering from domestic violence and battered women’s syndrome,alterations still need to be made.The defendants need to show that he lost his self-controlbecause of a qualifying trigger which is stated in section 55 of the coronersand justice act 2009. It said “A qualifying triggermay only relate to S.
55 (3) Where D’s lossof self-control was attributable to D’sfear of serious violence from the Victim against Defendant oranother identified person. or S.55(4) Where Defendant’s loss of self-control was attributable to a thing or things done or said (orboth) which constituted circumstances of anextremely grave character, and caused D to have a justifiable sense of being seriouslywronged”13. Thisis a subjective test and it is based on the fact what the defendant felt at thetime of the alleged offence. It also has to be shown that a person with anormal degree of tolerance and self-restraint would have acted in the samemanner as the defendant which is an objectivetest.
In apply the objective test, it is necessary that the person that isbeing compared to must be of the same sex, age and tolerance levels as thedefendant. This will reduce any kind of prejudice as the same type of women will be compared to achievea verdict. As it is obvious, men and women are most likely to react indifferent ways, therefore, it is essential that comparator is of the same sexand age if not then it is likely that the discriminations would continue.
however, loss of control based on fear can raise a lot of criticism. As merelyfearing violence is not sufficient to qualify as a trigger. As it must beproven that the fear caused the defendants loss of control.For example, women such as Ahluwalia can be said to lose her self-control because she genuinelyfeared of serious violence as she did experience domestic violence in the past,but the majority of the other women may have acted rationally and used moreforce than what was necessary. “Whilst the angryloss of self-control might reveal itself in shouting and stamping, lossof self-control based on fear will manifest itself indifferently. These ways would be less identifiable, would thedefendant have to cry, plead and wail for instance to show that they had losttheir self-control?”14. Lookingat these issues, I believe that the Law Commission was correct when it considered it unsuitable for the notion of’loss of self-control’ to be retained as it does not precisely explain the responseof women in this kind of situations.
Therefore,it may not be adequate for shielding thewomen who are in fact vulnerable as this defence is only accessible to thosewho are fearful of harm that they panic and lose their self-control.On the other hand, if we focuson the second trigger mentioned in section 55 (4), it is obvious the “newdefence is more limited than the old one but it is still too accommodating”15.This is because we need to ask questionssuch as why the law still provides an excuse for killing someone in anger? Thewords “extremely grave character” and “justifiable sense of being wronged” arevery broad and concerning. For example, in Rv Doughty (1986), where a father killed his baby because he was crying toomuch wouldno longer be covered under the new defence whereas, previously, the judge said”the baby’s crying could amount to a provocative act within the meaning of s.3of the Homicide Act 1957″16. Similarly, in the caseof R v Davies 1975, where the defendantkilled his wife after seeing her lover walk towards her place of work. “It washeld that the act of the lover walking to her workplacecould amount to a provocative act and the issue of provocation should have beenput before the jury. The provocative act need not be deliberately aimed atprovoking the victim, nor must the provocation come from the victim”17.
Theissue of sexual infidelity was considered in the case of R v Clinton (2012), where it was decided that sexual infidelity canbe used as a qualifying trigger. It was held that “Where other factors count asa qualifying trigger, sexual infidelity may be taken into account in assessingwhether things are done or said amountedto the circumstance of an extremely gravecharacter and gave D a justifiable sense of being wronged under s.55(4)”18. Despite, provisions prohibiting sexualinfidelity as a qualifying trigger, a lot of criticism were raised regardingthis matter. As seen in R v Mohammed(2005), where the judge can find a qualifying trigger by finding hisdaughter in bed with a man. This could be seen as extremely grave matter due tohis religious convictions and he may have a justifiable sense of beingseriously wronged.
Even though, the jury could think this is more of a revengekilling which is also banned by the legislation due to the lack of precision inits phrasing. But at the end of the day,why should killing someone in anger still be acceptable in the criminal law ifits goal is to stop individuals from murdering one another. Therefore, NewZealand abolished their provision based on anger last year. Instead ofdifferentiating between different type of murders we should just take a standagainst any type of murder that is done because of losing their temper as it isnot a justifiable reason to be exempt from the punishment of killing someone.”Thesad irony is that in seizing the ideological initiative, Parliament created aclause so unclear and impractical that the courts have been constrained toforge a very broad interpretation”19.The result is that the misperception has resulted in the “taking of a retrogradestep”20.
This means that is more likely that the defendant will use sexual infidelity inhis defence and present it in front ofthe jury which resulted in, section 55(6)(c) of the Coroners and Justice Acthas formed the worst of both realms. There are still underlying issues thatstill exist and it is to be seen whether these issues will be emphasized. Thedefendants who claim to have lost their self-controlmay also realise that they might find it hard to rely on the new provision. Thenew act does not for definite provide a solution for the victims of batteredwomen’s syndrome and domestic violence due to the fact that the qualifyingtriggers do not apply.
However,it can be suggested that to remove sexual infidelity as a qualifying triggerwas an attempt made by the new law, which was not successful as it did notactually happen. Arguably, questions may have raised as to what actually hasbeing achieved by introducing the new provisions if women are still being exposedto prejudiced behaviour. Due to this, the new defence still is mostly male-dominated, which were not the objectivesof the 2009 act. As pre-existent discernment still exists in support of men,the purposes of the 2009 Act have not been achieved and women are still beingtreated harshly by men.Anotherproblem that needs to be dealt with is trying to differentiate between thedomestic violence cases which involvereal motive for revenge as a result of domestic abuse and the cases where thedefendant loses their self-control, several days after the abuse happened. As illustratedby Carline; “acting due to a fear of serious violence defence is not about aloss of self-control but based upon a recognition that some domestic violencevictims live in desperate situations in which extreme fatal action may seem tobe the only means by which to survive”21.
It is shocking that victims are not provided with the suitable protection underthe law, yet those who act in a sudden temper are. How is this fair for the victimswho are being abused by their partners and by under the law?Thesediscriminations raise the questions on the law. As we know, individuals who arebeing abused emotionally or physically by their partners is a fact of life. Thewomen are in agony, they feel constant humiliation by their partners andconstant fear of being inflicted to harm. But the on-going discussion on howthe law should legally react to a woman who kills her “abuser is significantbeyond the individual”22.Women are more likely to be assaulted than men. “A high proportion, of (75%),of recorded assaults on women take place in either the victim’s or theassailant’s home. When it comes to homicide, female victims are far more likelyto have been killed by their cohabitant or ex-cohabitant than male victims”23.
In addition, it also revealed that female victims were more likely to be killedby someone they knew. Over three-quarters,(78%) of female victims knew the main suspect, compared with 57 percent of male victims.”24 Overall,more improvements need to be made to the law on loss of control due to themassive confusion which still persists. Women were not being treated fairlywhen it comes to establishing the defenceof provocation, resulting in discrimination and this is still the case in someoccasion as the new law on loss of control is still very much surrounded bycriticism in this area of law especially in establishing whether there was somekind of pre-meditation involved. Womenwho have constantly been suffering from battered women’s syndrome and domesticviolence were predominantly at disadvantage and changes in the future wereinevitable. It could be said, that women are still not able to rely on the newlaw when they find themselves to be losing their control, therefore, it can be suggested that the 2009act has been ineffective.
Despite this, some changes have been made to the lawsuch as the removal of the requirement of sudden loss of control, yet still, some injustice exists. Even though several changes have been made to the law,it is still debatable whether all theproblems have been eradicated.1 HomicideAct 19572 http://www.
austlii.edu.au/au/journals/UWSLRev/2010/1.pdf3The Law Commission, ‘Partial Defences to Murder’ (2004), Law Com 290, Cm 6301 224 RV Duffy 19495 R v Ahluwalia 19936The Law Commission. ‘Murder, Manslaughter and Infanticide’ (2006), Project 6 of the Ninth Programme of LawReform: Homicide, Law Com No 304. 37 Horder, J.
“Reshaping The SubjectiveElement in The Provocation Defence”, Oxford Journal of Legal Studies (2005)25(1) 129.8Ibid 1309 Barnett, H. “Introduction to FeministJurisprudence”, (Cavendish Publishing; London; 1998) 26810 Horder, J. “Provocation andResponsibility”, (Clarendon Press; Oxford; 1992) 19711 Law Commission No 290(2004) Partial Defences to Murder (London: HMSO)3.4912The Law Commission. ‘A New Homicide Act for England and Wales?’ (2006)Consultation Paper No 177 26 13Coroners and Justice Act 200914Vincent McAviney.
‘Coroners and Justice Act 2009: Replacing Provocation withLoss of Control’ (2010)
15ibid16 R v Doughty (1986),17 R v Davies 197518 R v Clinton (2012)19Sam Main. ‘Loss of Control: Sexual Infidelity and the Reduction of a Charge ofMurder to Manslaughter’ (2009) The Student Journal of Law,
“Reforming Provocation:Perspectives From The Law Commission and The Government”, Web Journal ofCurrent Legal Issues (2009) 2:http://webjcli.ncl.ac.uk/2009/issue2/carline2.html22 Wells, C. “Battered Woman Syndrome andDefences to Homicide: Where Now?” Legal Studies (1994) 14(2) 23ibid24 Home Office (2012) “Homicides,Firearm Offences and Intimate Violence 2010/11: Supplementary Volume 2 to Crimein England and Wales 2010/11”.
Accessed via: http://www.homeoffice.gov.uk/publications/science-research-statistics/research-statistics/crime-research/hosb0212/hosb0212snr?view=Binary