The Court of Appeal, in a significant, controversial, but not unexpected judgment, has allowed an appeal against a murder conviction where the partial defence of loss of control was withdrawn by the trial judge after she disregarded evidence that the appellant was motivated by the victim’s sexual infidelity. Since October 2010 the loss of control defence has replaced the ancient common law defence of provocation. The structure of the new defence is based on the wide-ranging and lengthy review of the partial defences by the Law Commission, although as the Court notes the Commission’s proposals were altered substantially by the Labour government when it enacted the new partial defence in the Coroners and Justice Act 2009.
One of the key objectives of both the Commission and the government was to ensure that the defence was not misused in the context of domestic violence and, in particular, by violent men who claimed they lost control when they killed their female partners. To this end, among other measures, the new defence can only reduce murder to manslaughter where killings are based in anger if the loss of self-control was attributable to “things said or done (or both) which constituted circumstances of an extremely grave character and caused D to have a justifiable sense of being seriously wronged.” Moreover, in a provision added by the government, “the fact that a thing done or said constituted sexual infidelity is to be disregarded.”
In R v Clinton the appellant was the husband of the victim. The couple had lived together for 16 years and had children of school age. Two weeks before the victim was killed she had left the appellant. The appellant had a history of depression. According to the appellant’s testimony, on the night of the killing the victim had returned to the family home.
The appellant had previously viewed the victim’s Facebook page and had “looked at some sexual images which confirmed that Mrs Clinton had been unfaithful to him”. When he showed her the Facebook page on his laptop it was claimed that she “became very spiteful and said ‘it should have been like that every day of the week’ and that she had had sex with five different men. She gave details about the sexual activity saying that they had come inside her. The appellant said that this was deeply hurtful.” Soon after, it is alleged, she found a website on the appellant’s laptop about suicide, “he heard her snigger … and [say] ‘you haven’t got the fucking bollocks'”. The appellant describes “the walls and the ceiling just [seeming] to close in. She was talking but he could not hear what she was saying. He could hear noise, like the distant sea. He wanted everything stop. He wanted everything to slow down.”
The appellant then beat the victim around the head with a wooden baton, strangled her with a belt and tied a piece of rope around her neck. She died from the head injury and asphyxia. After he killed her he removed most of her clothes, put her body in a number of different positions, took photos of it and then sent text messages to the man with whom she was having a relationship. The appellant was found by police in the loft with a noose around his neck.
At his trial for murder the appellant pleaded guilty to manslaughter on grounds of loss of control and diminished responsibility. The Court of Appeal’s description of the judge’s decision on loss of control is worth setting out in full:
“At the conclusion of the evidence Judge Smith directed herself that there was no evidence that the loss of self-control necessary for the purposes of this defence was due to one of the qualifying triggers identified in the statute. She was required “specifically” to disregard anything said or done that constituted sexual infidelity. The remarks allegedly made by the wife, challenged about her infidelity, to the effect that she had intercourse with five men were to be ignored. Removing that element of that evidence, what was left was the evidence when the wife saw that the appellant had visited the suicide site on the internet, she commented that he had “not the balls to commit suicide” and that she also said, so far as the future was concerned, that he could have the children who were then currently living with him at their home. The judge observed that she could not see that the circumstances were of an extremely grave character or that they would cause the defendant to have a justifiable sense of being seriously wrong. On this issue no sufficient evidence had been adduced. She could not find that a jury properly directed could reasonably conclude that the defence might apply. In due course she proceeded to her summing up, leaving diminished responsibility for the consideration of the jury.”
In allowing the appeal the Lord Chief Justice Judge LJ (pictured), delivering the judgment of the Court, considered the “sexual infidelity” exclusion in detail. He confirmed that in cases in which sexual infidelity was the only trigger for a loss of control the legislation required that it be disregarded, and as such the defence could not be put to the jury.
However, the Court went on to conclude that in circumstances where other words or acts were argued to constitute a qualifying trigger the legislation permitted, and ought to permit, judge and jury to consider those words or acts in the context of evidence of sexual infidelity.
“Our approach has … been influenced by the simply reality that in relation to the day to day working of the criminal justice system events cannot be isolated from context. … [t]o seek to compartmentalise sexual infidelity and exclude it when it is integral to the facts as whole is not only much more difficult, but is unrealistic and carries with it the potential for injustice … we do not see how any sensible evaluation of the gravity of the circumstances or their impact on the defendant could be made if the jury, having, in accordance with the legislation, heard the evidence, were then to be directed to excise from their evaluation of the qualifying trigger the matters said to constitute sexual infidelity, and to put them into distinct compartments to be disregarded. In our judgment, where sexual infidelity is integral to and forms an essential part of the context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of [the qualifying trigger provisions] the prohibition [on sexual infidelity] does not operate to exclude it.”
In relation to the facts of R v Clinton the Lord Chief Justice concluded that the trial judge “misdirected herself about the possible relevance of the wife’s infidelity. We have reflected whether the totality of the matters relied on as a qualifying trigger, evaluated in the context of the evidence relating to the wife’s sexual infidelity, and examined as a cohesive whole, were of sufficient weight to leave to the jury. In our judgment they were. In the circumstances of the case, we shall order a new trial. The issues should be examined by a jury.”
R v Clinton has diluted the impact of a provision designed specifically to limit the use of the loss of control defence by abusive men who kill their partners. Of course, as the Court noted, the concept is vague, and creates some arbitrary distinctions between behaviour that is excluded outright by the provision and behaviour that can still be considered in principle by judge and jury. However, it does not stem from these concerns that the Court was entitled to permit consideration of sexual infidelity if it provided “an essential part of the context” of another qualifying trigger, when the legislation itself clearly states that such evidence must be ignored. Indeed, one might ask why it was assumed that a jury would find it too difficult to “compartmentalise” sexual infidelity from other evidence when it is clear that the trial judge felt more than able to do so in her own judgment.
But more worrying still is the apparent conclusion of the Court that, on the facts of R v Clinton, when Mrs Clinton’s only other possible triggering behaviour – her comment that the appellant “didn’t have the balls to commit suicide” – was considered in the context of sexual infidelity, this was sufficient to amount to “circumstances of an extremely grave character” that gave the appellant “a justified sense of being seriously wronged”. This behaviour seems completely insignificant as a basis for killing, and entirely at odds with the limited kind of behaviour envisaged by Law Commission and government as grounds for the defence (e.g. discovering someone raping your partner etc). Yet the Court has concluded that the judge was not entitled to reach the conclusion that no reasonable jury could find that there had been a legitimate loss of control on the facts.
Throughout the judgment the Court of Appeal evinces an obvious distaste for the sexual infidelity exclusion, fortified by the extensive critique of the provision offered by Professor David Ormerod. Most revealing of all, perhaps, is the analysis in paragraph 16 of the judgment, in which the Court attempts to justify killings in the context of sexual infidelity. Noting that “the law underlines that no one (male or female) owns or possesses his or her spouse or partner” the paragraph concludes that “sexual infidelity has the potential to create a highly emotional situation or to exacerbate a fraught situation, and to produce a completely unpredictable, and sometimes violent response. This may have nothing to do with any notional ‘rights’ that the one may believe that he or she has over the other, and often stems from a sense of betrayal and heartbreak, and crushed dreams.” This apologist attitude towards domestic violence indicates an uneasiness about excluding the defence in such situations, on grounds entirely at odds with feminist politics. This deeply troublesome rationalisation of domestic violence may explain the Court’s reading of the facts.
It is worth reminding ourselves too that the only evidence available to the Court was the testimony of the appellant about what happened at the time of the killing. Its reference to the “spiteful” attitude of Mrs. Clinton when she revealed her infidelity is simply repetition of the appellant’s own words, demonstrating once again that in cases of domestic killing the victim is unable to defend herself against the viewpoint of her killer. Entirely downplayed in the description of events, for instance, is the apparent context of domestic violence by Mr. Clinton against his wife against which the killing took place; it is mentioned only once in passing that Mr. Clinton himself apologised to his wife for “his bullying”. The vast majority of the description focuses instead on his depression and anxiety about the end of the relationship. One wonders, though, why this was not an indication that this was a case of diminished responsibility alone, if anything at all.
It is to be hoped that leave will be given for the case to be appealed to the Supreme Court, especially given its impact on the entirely reasonable feminist aims behind the sexual infidelity exclusion.