In October 2010 the British government abolished the controversial partial defence of provocation and simultaneously introduced a new partial defence of loss of control. Provocation had long caused controversy in the English courts because of its perceived inability to accommodate the experiences of women who killed a long-term abusive male partner while all too readily accommodating the unmeritorious contexts within which jealous and controlling men killed female partners who were leaving them or had allegedly committed infidelity.
The new partial defence of loss of control was introduced as part of the Coroners and Justice Act 2009 and retains many of the features of the former provocation defence, including the requirement for there to have been a loss of control. However, notably in an attempt to distance the English law of homicide from the injustices associated with provocation, the new loss of control defence includes a provision to exclude the defence from reducing murder to manslaughter in cases where a person’s loss of control resulted from a situation of sexual infidelity. At the time of implementation, the Ministry of Justice commented that:
‘The Government does not accept that sexual infidelity should ever provide the basis for a partial defence to murder’.
The new partial defence has now been in operation in England and Wales for nearly four years, begging the question: to what extent has the new offence allowed the English law of homicide to distance itself from the problems previously associated with the heavily discredited provocation defence?
In seeking to answer this question, over the past four years I have conducted qualitative research examining the extent to which the new partial defence provides a more adequate response to lethal violence, particularly that committed in the domestic context. A key component of this research involved in-depth research interviews conducted in 2010 with members of the English judiciary and independent legal counsel. These interviews sought to examine, from those charged with the daily operation of homicide law, how the new defence was perceived in practice and whether there was legal support for this approach to reform.
The interviews revealed a strong perception among legal practitioners that the new partial defence was merely a ‘rebranding’ of the provocation defence and would not lead to meaningful change in practice. In advancing the rebranding argument, a member of the English judiciary contended that the new partial defence merely put provocation ‘under a different label’. This view was mirrored by legal counsel, one of whom commented that ‘it’s the same old defence’. Because of this view, practitioners questioned the extent to which the loss of control defence would actually signify a change in practice.
In examining the specifics of the loss of control defence, practitioners were overwhelmingly critical of the provision within the defence to exclude lethal violence arising in the context of sexual infidelity. Legal counsel described the provision as ‘incredibly convoluted’ and ‘barmy’ while members of the English judiciary commented that it was ‘bad law’ and ‘ill-advised’. These criticisms emerged from a belief that it was ‘unwise’ and ‘unnecessary’ to exclude particular contexts of lethal violence from the operation of a partial defence and that in practice this would lead to significant questions surrounding what does and does not constitute sexual infidelity. As explained by a senior member of the English judiciary:
‘To try to produce specific subcategories of conduct that couldn’t amount to a defence was not good law-making, it was better to law down the general principles and provide the judicial check mechanisms rather than try and carve out an additional specific exclusion.’
Adding to this, the interviews revealed a lack of understanding among practitioners as to what situations would actually be excluded from the new defence, specifically in terms of what would constitute an act of ‘sexual infidelity’. As one legal counsel commented, the new provision ‘begs the question in itself of what is meant by that [sexual infidelity] and in context, I think that’s why the concept about this is potentially so dangerous’. Echoing this view, another legal counsel questioned, ‘it depends, doesn’t it, on the circumstances? I think it’s absolutely ridiculous.’
It is worth noting that while the provision to exclude cases of sexual infidelity was not supported by legal practitioners, there was an ongoing recognition among legal counsel and judicial members interviewed that homicides motivated by suspicions of sexual infidelity had, in the past, given rise to unsatisfactory defences of provocation. However, it was strongly believed by the majority of practitioners interviewed that the government’s reforms had not addressed this issue with satisfactory reform.
As we approach the five-year anniversary of the reforms, it will be important for the British government to acknowledge the concerns of those operating within the justice system. A five-year review of the English law of homicide by the Law Commission would be a welcomed response and provide an opportunity to determine to what extent the reforms have operated in line with the original intentions of the government’s reform package or whether there is a lingering need for further reform to the law of homicide.
Provocation was a stain on the English criminal courts for centuries; the government should ensure that the same does not occur with the loss of control partial defence.
Dr Kate Fitz-Gibbon is a Lecturer in Criminology at Deakin University (Victoria, Australia). Email contact: firstname.lastname@example.org, Deakin staff profile: http://www.deakin.edu.au/contact/staff-profile/?pid=7404.