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VOL.1 2015
J OUURRNNALAL
S ST TUUDDE ENNT T L LAAWWJ O
University of Bradford Student Law Journal 2015 No 1 Vol 1
Is the defence of loss of control a ‘better’ defence for female
victims of domestic abuse than provocation?
Kesar Zaman
Abstract
This paper centres on the extent to which the partial defence of loss of control compares with
former provocation provisions1 for female domestic violence victims who kill their abusive
partners. Establishing whether the legal position of such women has been improved requires
an assessment of their legal position prior to the introduction of this legislation. A
chronological assessment of provocation since its existence appears to highlight its faults the
best way. The rationale for changes and analysis of the new provisions helps in answering
these central issues. This is because the history of provocation in itself highlights major
concerns for battered women and the rationale for change highlights the attempts to shift and
even the balance. This paper aims to substantiate the claim that the Coroners and Justice Act
2009 is an improvement for from provocation. It also seeks to present a true reflection of the
consensus on this issue by examining available literature on the issues, including case law,
Law Commission reports and consultation papers, parliamentary discussion and academic
commentary.
Introduction
The partial defence of loss of control was introduced the Coroners and Justice Act 2009
which repealed provocation. Provocation was heavily criticised for its shortcomings with
regards to battered women that killed their partners and this criticism will be discussed in
further detail throughout this paper. The significance of this defence to individuals who kill is
that they may be able to avoid a mandatory life sentence.2 Current human rights legislation
states that ‘all are equal and entitled without discrimination to equal protection of the law’.3
This reiterates the undesirability of inconsistency between genders which provocation
supposedly harboured. Equal access and administration of justice is a central tenet enshrined
within most contemporary societies along with judicial integrity and impartiality; free of
political or ideological influence.4 Where individuals are differentially treated the principle of
equality is undermined. If provocation was, in fact, hindering a specific proportion of society
(battered women) then the principle of equality would be undermined and this would justify
its repeal. To determine whether such principles were impeded the next section assesses the
old position of the law.
1
Loss of control is a relatively new defence. Coroners and Justice Act 2009, s 56 abolished provocation and
states that it is to be incorporated and replaced under the new defence of Loss of Control.
2
A successful defence of provocation reduces a sentence from mandatory life to discretionary life.
3
Universal Declaration of Human Rights, (adopted 10 December 1948 UNGA Res 217 A(III) (UDHR), Art 7.
4
A Kabir, Societies can't be inclusive without equal access to justice. Guardian (20 February 2014)
<www.theguardian.com/global-development-professionals-network/2014/feb/20/justice-women-socialinclusion-development.> accessed 08 April 2015.
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The Unsatisfactory Provocation Defence
The common law defence of provocation existed centuries before section 3 of the Homicide
Act 19575 modified it.6 The defence was only available for murder7 which effectively
converted killings in response to provocative acts to manslaughter. The issue was hugely
controversial and ‘received an enormous amount of academic attention’.8 Prior to the 1957
Act a strict approach9 was employed towards provocation as illustrated in Ellis10 where a
female who killed her abusive partner was consequently hanged. The Court of Appeal
reviewed this case following a referral by the Criminal Cases Review Commission in 2003
and rejected the appeal11 on the grounds that they had to consider the law as it was in 1955.12
This retrospective application13 of provocation demonstrates the difficulty for battered
women utilising provocation. Had the 2003 stance on provocation applied, it is plausible that
Ellis would succeed as the courts’ stance became less restrictive preceding the loss of control
defence’s introduction.14
One of the most criticised aspects of provocation was the perceived differential effects and
outcomes for defendants of different genders, arguably owing to the gendered nature of the
law and the masculine legal subject.15 Many commentators have contended that provocation
operated discriminatorily as women struggled to invoke the defence, whereas men could use
it liberally.16 Horder’s eloquent analysis of the historical context of provocation states that
provocation emerged from ‘a world of restoration gallantry in which gentlemen habitually
carried lethal weapons [following] a code of honour [whereby insult was] personally avenged
by instant angry retaliation’.17 It could be argued that provocation was law created for men,
by men with outdated features.18 Women significantly kill intimate male partners, whereas
single males significantly kill females.19 This implicitly illustrates that women predominantly
kill in relationships, possibly owing to domestic violence, and hence, require the protection of
provocation in such circumstances. Although the position of females within the society has
changed gradually over time,20 the creation of this defence in the 16th and 17th centuries
focused on male instances of killing and omitted contemplation of female murderers.21 This
5
J Herring, Palgrave Macmillan Law Masters: Criminal Law (6th edn, Palgrave Macmillan 2009) 159. See also
Homicide Act 1957, s 3.
6
D Ormerod, Smith and Hogan’s Criminal Law (13th edn, OUP 2011) 506.
7
See Herring (n 5) 159. See also Ormerod (n 6) 506.
8
J Herring, Criminal law: Text, cases and materials (4th edn, OUP 2010) 298.
9
C Elliot and F Quinn, Criminal Law (8th edn, Pearsons 2010) 89.
10
CA Lee, A Fine Day for Hanging: The Real Ruth Ellis Story (Random House Publishers 2012). Ellis was the
last woman to be hanged for murder in England after killing her boyfriend due to continuous domestic violence.
11
Ruth Ellis v R [2003] EWCA Crim 3556 [89].
12
ibid [90].
13
The Court of Appeal retrospectively applied provocation as it was in 1955.
14
This is discussed in further detail below in section ‘Events closely-preceding the reformation of provocation’.
15
See Ormerod (n 6) 506. See also Elliot and Quinn (n 9) 89. This is discussed further in section ‘The elements
of Provocation’.
16
See Ormerod (n 6) 506. See also Herring, Criminal law: Text, cases and materials (n 8) 305.
17
Jeremy Horder, Provocation and Responsibility (Clarendon Press 1992). Lord Hoffman cited Horder in R v
Smith (Morgan) [2001] 1 AC 146, [159].
18
R Holten and S Shute, ‘Self-Control in the Modern Provocation Defence’ (2007) 27(1) Oxford Journal of
Legal Studies 49.
19
CR Mann, Women who kill? (SUNY Press 1996) 104.
20
A timeline of gender equality shows how, for hundreds of years, provocation operated during a time when
females were deemed inferior which has only recently changed. See Manchester Metropolitan University, ‘The
Women’s Timeline’ <http://www.mmu.ac.uk/equality-and-diversity/doc/gender-equality-timeline.pdf> accessed
16 April 2015.
21
Lenny Roth and Lyndsey Blayden, ‘Provocation and self-defence in intimate partner and sexual advance
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can be attributed to the sociological and historical conditions of the time which mirrored with
the perception that females were nurturing.
The Elements of Provocation
The test for provocation was two-fold with a subjective and objective element,22 which could
be entertained upon establishing a provoking act. A provoking act was objectively assessed,
including a crying baby (Doughty)23 to taunting, questioning whether the defendant lost their
self-control as a result of something said or done and whether the reasonable person would
act similarly to such provocation.24 Morhall25 extended this to teasing. There was
disagreement as to whether subjectivity was relevant in assessing the second element, which
the Law Commission (LC) addressed, but was unsatisfactorily interpreted.26 The reasonable
man test alluded to subjectivity (the defendant’s characteristics).27 This casts doubts to the
level of subjectivity in the second ‘objective’ element. It is also questionable whether there
are some female characteristics which make women appear weaker when compared to men
and cause women to act differently when killing abusers is considered.
From a feminist perspective this test is flawed because it could be argued that the universal
objective rationale, ‘espoused in common law/precedent’28 is an authentication of the
masculine-perspective; characterised as ‘objective’ and then portrayed as normative.
Therefore, any test containing objectivity is flawed.29 This is true as women are debatably
invisible throughout legal history, and the historical and sociological undercurrent to
provocation further indicates this. However, suddenness seems the main reason for battered
women failing to plead provocation.30 The hybrid two-stage test, when read alongside the
case law, was problematic as certain additional conditions meant that pleading provocation
by battered women has rarely been successful.
Morhall31 illustrates that glue sniffing was considered a valid characteristic for the purposes
of the test for provocation. Norrie distinguishes legal/moral theory using provocation. In his
opinion, contract and mercy killers are alike, owing to intent to kill, but their actions are
distinguished by morality.32 Thus, certain intricate, contextual details may distinguish
characteristics or circumstances. According to Lord Diplock, this characteristic could be
considered when conducting the reasonable man test because the gravity of provocation on
the defendant may be affected. Therefore, subjectivity is partially-visible within the
reasonable man test. This seems positive for battered women because additional
homicides’ New South Wales Parliamentary Research Service Briefing Paper No 5/2012, 11
<http://www.parliament.nsw.gov.au/prod/parlment/publications.nsf/0/F2BA1BFEED2D87EECA257A4800001
BD7/$File/briefing%20paper.provocation%20and%20self-defence.pdf> accessed 25 February 2015.
22
Homicide Act 1957, s 3.
23
R v Doughty (1986) 83 Cr App R 319.
24
See Herring, Palgrave Macmillan Law Masters: Criminal Law (n 5) 159.
25
R v Morhall [1995] 3 WLR 330
26
See Ormerod (n 6) 506. See also Law Commission, A new homicide act for England (Law Com CP No 177,
2005) para 2.78.
27
See Ormerod (n 6) 506.
28
S Edwards, ‘Abolishing provocation and reframing self defence: the Law Commission's options for reform
[2004] Crim L R 181, 192 and the table on 181.
29
J Grbich, ‘The Body in Legal Theory’ in M Fineman and N Thomadsen (eds), At the Boundaries of Law
(Routledge 1991) 69.
30
Discussed at length in section ‘Gendered difficulties in the Defence’.
31
See Morhall (n 25).
32
A Norrie, ‘From Criminal Law to Legal Theory: The Mysterious Case of the Reasonable Glue Sniffer’ (2002)
65(4) Modern Law Review 538, 538.
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characteristics such as the level of abuse can be considered. Additionally, the decision in
Holley33 clarified that self-control varied depending on one’s age and gender.34 Therefore, the
decision could be argued to lean towards subjectivity. The observations in Holley are
nevertheless conflicting with Smith (Morgan)35 where the majority held that the court had to
consider the characteristics affecting self-control, irrespective of their relevance to the gravity
of the provocation. In contrast, the minority (Lord Hoffmann and Lord Bingham) said it was
impossible to consider both in isolation. Although it could be tempting to argue that Smith
was wrongly decided, Smith was, in fact, correct. It is in fact the lack of clarity and
indecisiveness in Holley that was the catalyst for the confusion attributable to provocation.
Taking into account the confusion arising from case law and its relevance with respect in
particular to domestic violence victims, it must be highlighted that specific characteristics
affecting battered women could not be taken into account when considering the defendant’s
ability to exercise self-control, but rather only when considering the gravity of the
provocation. Although Lord Hoffman criticised judgement in Smith he called for juries to
consider both.36 This is inherently unfair as women should be permitted to use this as
evidence of the impeded ability to exercise self-control37 as their frailty in such circumstances
should be acknowledged. Additionally, it is questionable how juries would decide whether
women’s experiences constitute a characteristic.38 Hyde’s research, evidenced by ‘metaanalysis of research on gender differences’,39 would counter the ‘men are from Mars, women
are from Venus’40 rationale as she believes men and women are similar on most
psychological variables.41 This would suggest that biological genders differ only minimally
psychologically, and thus, mean that women require less protection. Nevertheless, if gluesniffing was recognised as affecting self-control as a grave circumstance, so should being
continually beaten.
Norrie’s contextual and moral undercurrent would result in a more lenient stance, as with a
mercy killer. American research concluded that women were psychologically affected from
continued abuse, naming the condition as battered woman syndrome. However, the stigmatic
label of mental-illness associated with the disorder, akin to diminished responsibility,42 may
deter women from using it. Critics of battered woman syndrome have suggested that whilst
reviewing legal case evidence, the defence for battered woman syndrome was symbolic of
sexual politics more concerned with ideology than justice.43 It can be argued that provocation
cannot escape being sexually-political, owing to its historically gender-biased nature. Further,
if justice is equated between genders through battered woman syndrome, then it is positive.
33
AG for Jersey v Holley [2005] UKPC 23.
ibid [13].
35
See Smith (Morgan) (n 17).
36
M Burton, ‘Intimate Homicide and the provocation defence-Endangering women? R v Smith’ (2001) 9 Fem
LS 247.
37
See Lenore Walker, Battered Women Syndrome (3rd edn, Springer 2008). Mental effect on women from
abuse is recognised as medical condition called Battered Woman Syndrome.
38
H Power, ‘Provocation and Culture’ [2006] Crim L R 871.
39
J Hyde, ‘The Gender Similarities Hypothesis’ (2005) 60(6) American Psychologist Association 581, 590. See
also J Hyde, ‘Gender Similarities and Differences’ (2014) 65 Annual Review of Psychology 373.
40
J Gray, Men Are from Mars, Women Are from Venus (Harper Collins 1992).
41
See Hyde (n 39) 581.
42
BWS applied more to diminished responsibility, diminishing the mental blameworthiness of an individual. R
v Hobson [1997] EWCA Crim 1317.
43
R Pendry, ‘An icon of sexual politics’ Spectator (1 August 1992).
34
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Gendered Difficulties in the Defence
One of the barriers for women in abusive relationships using the defence of provocation was
the requirement that provocation produced a sudden reaction. The courts only accepted the
male reaction of rage and sudden violent outbursts.44 Most battered women would not act
immediately upon provocation as the cumulative and slow-burn effect of continuous abuse
affects their actions. In Duffy,45 Devlin J stated that loss of self-control must be ‘sudden and
temporary’, discounting a slow-burn effect. This was a major hindrance to battered women
because it was clear that typically, most women killed their partners shortly-after the
provoking event. This seems plausible because clearly the majority of women, at the time of
domestic abuse, would not be able to retaliate with fatal force, owing to their limited physical
strength.46 Consequently the need for an immediate, sudden loss of control without
considering cumulative effects of prolonged abuse made it virtually impossible for battered
women to plead provocation. Additionally, the malice aforethought requirement of murder
would be satisfied if the defendant prepared weapons or waited to kill the partner as this
signifies premeditation.47 This was a critical point in Thornton48 where the judge clarified that
defendant ‘could have walked out or gone upstairs’.49 Edwards provides evidence that 83.1%
of women used either a sharp instrument or gun to kill their partner between 1987 and 1996.50
This large proportion evidences the huge difficulty for women which stemmed from the
suddenness requirement as premeditation seemed to plague their actions and the use of
weapons may be owing to the physical weakness of women or the desire to avenge the huge
pain suffered at the hands of their lovers.
A review of case law will highlight the difficulty this requirement posed for battered women.
In Ibrams,51 it was stated that a cooling-off period meant that a loss of self-control was not
‘sudden and temporary’. In Ibrams,52 the court thought that Lord Diplock in Camplin53 meant
that the loss of self-control must occur ‘at or about the time of the act of provocation’.54 Such
interpretation by the courts further develops the argument regarding the gendered approach of
the courts. The delay in timing and the cooling-off period being disallowed demonstrates that
the courts were not prepared to broaden the scope of provocation. The problems with the
suddenness principle become apparent when examining cases like Ahluwalia55 where the
female defendant burnt her husband alive in retaliation for prolonged abuse. The time
between the events equated to a lack of suddenness, meaning that the defendant could only
use the diminished responsibility56 defence and so acquired the mental-illness stigma attached
44
See Elliot and Quinn (n 9) 90.
R v Duffy (1949) 1 AER 932. The Court of Appeal confirmed Devlin J’s position.
46
See Ormerod (n 6) 507. For further discussion on the killing methods of battered women, see A McColgan,’In
Defence of Battered Women who kill’ (1993) 13 Oxford Journal of Legal Studies 508; J Dressler, ‘Battered
women who kill their sleeping tormentors’ and J Horder, ‘Killing the passive abuser: a theoretical defence’ both
in S Shute and A Simester (eds), Criminal Law theory (OUP 2002).
47
Criminal Justice Act 2003, sch 21, para 9(a).
48
R v Sara Elizabeth Thornton (No 1) [1993] 96 Cr App R 112. Later re-trialled in R v Thornton (No 2) [1996] 1
WLR 1174.
49
BBC, ‘Spotlight on domestic abuse laws’ (29 July 2008) <http://news.bbc.co.uk/1/hi/uk/7530582.stm>
accessed 16 April 2015.
50
See n 28.
51
R v James David Ibrams, R v Ian David Gregory (1982) 74 Cr App R 154.
52
ibid
53
Director of Public Prosecutions v Camplin (1978) 67 Cr App R 14.
54
See Elliot and Quinn (n 9) 80. See also Ibrams [159].
55
R v Kiranjit Ahluwalia [1993] 96 Cr App R 133. The victim of ten years of abuse poured petrol on husband
and set him alight after he fell asleep, killing him.
56
Another partial defence to murder.
45
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to it. Tireless campaigning before her appeal by Women’s Rights Groups 57 must be credited
for the subsequent wave of support for change in this particular area of the law with the
interests of domestic violence victims in contemplation. The transition from provocation to
loss of control is discussed in detail below.
Provocation was the desired defence of females because self-defence was unavailable, due to
absence of an imminent threat in most circumstances.58 A Law Commission report identified
that between 1997 and 2001, 63.6% of women claiming provocation had been domesticallyabused. This suggests that battered women typically sought to invoke provocation.59 During
Thornton’s60 original appeal Lord Gifford61 had considered that the slow-burning emotion of
a woman at the ‘end of her tether’ may constitute sudden rage.62 The recognition of sudden
rage being built up was arguably an acknowledgement that provocation required adaptation.
Only the cumulative effect of abuse was recognised, but not the delays between the
provocation and death.
Lord Lane CJ63 addressed the period of delay by saying that cooling-down may be viewed
instead as a time for realising what happened and heating up. 64 This could be interpreted as
aiding females as they grow in anger at the event before attacking; consequently avoiding the
requirement of suddenness. The Law Commission has stated, quite rightly in Edward’s
opinion,65 that provocation elevated anger above fear, despair, compassion and empathy.66
Therefore, it was apparent67 that the very omission of female reaction and the suddenness
requirement were obstacles to using provocation for battered women. Moreover, the courts
were becoming unsettled by opposition to the long and harsh stance regarding provocation.
Events Closely-Preceding the Reformation of Provocation
The Government voiced its intention to tackle domestic abuse within the homicide remit in
Parliamentary sessions (2003-2004),68 labelling homicide law a confusing mixture of judgemade law and legislative provision.69 Many amendments were proposed. In 2003, the Law
Commission considered provocation as unworkable, unjust and gendered,70 providing a
defence for angry murderers unable to control themselves71 but not killings in ‘despair’72 or
fear.73 The Law Commission proposed scrapping provocation provisions and its name owing
57
Southall Black Sisters, ‘Kiranjit Ahluwalia’ <http://www.southallblacksisters.org.uk/campaigns/kiranjitahluwalia/> accessed 16 April 2015.
58
See Herring, Criminal law: texts, cases and Materials (n 8) 306.
59
R Mackay, ‘The provocation plea in operation: An empirical study’ in Law Commission, Partial Defences to
Murder (Law Com No 290, 2004) Appendix B.
60
See Thornton (No 1) (n 48).
61
Sara Thornton’s counsel
62
ibid [117]-[118].
63
Lord Chief Justice
64
See Elliot and Quinn (n 9) 90.
65
See Edwards (n 28) 183.
66
Law Commission, Partial Defences to Murder (Law Com CP No 173, 2003) para 4.163.
67
It is apparent from the information provided throughout the whole para that the female reaction being omitted
and, more importantly, the suddenness requirement made it difficult for women.
68
Law Commission, Partial defences to murder (Law Com No 290, 2004) para 1.6.
69
Law Commission, Murder, Manslaughter and Infanticide (Law Com No 304, 2006) para 1.46.
70
See Law Commission, Partial Defences to Murder (n 66) para. 1.66.
71
A Simester and G Sullivan, Criminal Law Theory and Doctrine (3rd edn, Hart 2007) 355.
72
See Law Commission, Partial Defences to Murder (n 66) paras 4.166-4.167.
73
Catherine Fairbairn, Grahame Danby and Pat Strickland, ‘Coroners and Justice Bill: Committee Stage Report’
Research Paper 09/27 (2009) 25.
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to its negative connotations.74 The Rights of Women response preached abolition because it
was blurred whether the ‘ideal’ (ie reformation) had worked previously.75
As mentioned to above, closely-preceding the reform of provocation cases were generously
interpreted with regards to suddenness.76 Although the court allowed Ahluwalia77 to use
diminished responsibility in an alleged attempt to appease critics,78 it considered that longer
delays weakened the level of provocation.79 This solution is unattractive because of the
associated mental-illness stigma which is absent in provocation.80 As such stigma could
affect their daily lives and perception by others, women would evade this.
Mackay and Mitchell81 considered merging loss of control and diminished responsibility82
after Smith (Morgan),83 arguing that these defences were not mutually exclusive.84 Case law
from the United States has proven that a joint-defence would be workable.85 In Thornton,86
Beldam J recognised that the foremost concepts of both defences87 were interrelated and
blended into one another with only suddenness distinguishing them.88 However, it seems that
this proposition disregards the validity of diminished responsibility and is a form of
subjectivised provocation.89 An intertwined defence90 of diminished responsibility and loss of
control was plausible providing suddenness as a condition was abolished because women
who could not use loss of control owing to a lack of suddenness used the defence of
diminished responsibility.91 In 2005 the Law Commission recognised that the sudden and
temporary requirement of loss of control confusingly trumped the cumulative effect of abuse;
further muddied by allowing a slow-burn effect.92
The Parliamentary Bills Commission highlighted a desire to remove suddenness,93
recognising that battered women served as examples of slow-burn cases.94 The Commission’s
74
Law Commission, Murder, Manslaughter and Infanticide: Proposals for reform of the law (Law Com CP
19/08, 2008) para 34.
75
Rights of Women, ‘Rights of Women Response to the Law Commission Consultation Paper 173, Partial
Defences to Murder’ (January 2004) 5. <http://www.rightsofwomen.org.uk/wp-content/uploads/2014/10/Partialdefences-to-murder-.pdf> accessed 26 February 2015.
76
See Elliot and Quinn (n 9) 80-81.
77
Ahluwalia [1992] 4 All ER 889. Kiranjit Ahluwalia waited for her partner to sleep so the attack lacked
suddenness. See also Ahluwalia (n 55); Herring, Palgrave Macmillan Law Masters: Criminal Law (n 8) 159.
78
See Elliot and Quinn (n 9) 90.
79
Ahluwalia (n 77) [896].
80
A Ashworth, ‘The Doctrine of Provocation’ (1976) 35(2) Cambridge Law Journal 292, 312.
81
R Mackay and B Mitchell, ‘Provoking Diminished Responsibility: Two pleas merging into one?’ [2003] Crim
L R 745. See also J Chalmers, ‘Merging provocation and Diminished Responsibility: Some reasons for
scepticism’ [2004] Crim L R 198.
82
Currently separate defences.
83
See Smith (Morgan) (n 20).
84
See Mackay and Mitchell (n 81) 748.
85
See Law Commission, Murder, Manslaughter and Infanticide (n 69) para.5.22. See also Model Penal Code, s
210(3)(1)(b) (United States) which encompasses a joint defence.
86
Thornton [1992] 1 All ER 306
87
eg loss of control, abnormality of mind, substantial impairment.
88
See Thornton (n 86) 316.
89
See Chalmers (n 81) 211.
90
An example of such an intertwined defence could be: an abnormality of mind, owing to a qualifying trigger
(abuse), which has substantially impaired her ability to exercise self-control/mental responsibility.
91
Kiranjit Ahluwalia used Diminished Responsibility after unsuccessfully claiming provocation.
92
Law Commission, A new homicide act for England (n 26) paras. 4.9-4.10.
93
See Fairbairn, Danby and Strickland (n 73) 24.
94
ibid
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report clarifies that removing suddenness would calibrate developing precedent and statute,
substantiating the claim that case law became less restrictive shortly before the enactment of
the Coroners and Justice Act 2009. Mackay identifies several case-studies of battered women
successfully claiming provocation between 1997 and 2001.95 In Humphreys,96 the Court of
Appeal overturned the lower court’s decision, finding that cumulative effects of prolonged
abuse were relevant to provocation.97 Justice for Women’98 or Bindel’s99 campaigning aided
Humphreys, illustrating successful campaigning leading to the disapproval of provocation.
Fear of serious violence was preferred to the imminence of threat100 and reiterated throughout
the Law Commission 2004 report on partial defences to murder.101 It was also recognised that
physically weaker partners attacked their partners when the latter was off-guard102 and
consequently lacked effective protection.103 In 2006, a three-tier system was proposed to
address the situation, adopting first-degree and second-degree murder offences,104 parallel to
the United States. The year preceding the enactment of the Coroners and Justice Act 2009
saw the final and strongest push towards reform. Additionally, arguments to include the fear
of serious violence requirement within a two-stage test were reinforced105 and problems such
as lack of judicial clarity, objectivity and the suddenness requirement were highlighted again
in the Law Commission report.106
In the light of the above the widespread criticism of provocation, some of which by
feminists,107 seems justified. The case law closely-preceding loss of control’s introduction
recognises legal defects in the law and demonstrates the willingness to improve by the courts.
However, the theoretical foundations of the defence remained unclear.108
95
See n 81; Thornton (No 1) (n 48) [131].
R v Humphreys [1995] 4 All ER 1008
97
See Elliot and Quinn (n 9) 90.
98
Justice for Women is a feminist law reform campaign set up to challenge the murder convictions of women
who kill abusive men. See Justice for Women <http://www.justiceforwomen.org.uk/> accessed 20 November
2014
99
J Bindle, ‘This one's for Emma’ Guardian (23 July 2008)
<http://www.theguardian.com/lifeandstyle/2008/jul/23/women.law> accessed 22 November 2014.
100
See Law Commission, Partial defences to murder (n 69) paras 1.13(4) and 2.2(1).
101
See ibid paras 4.23 and 4.26.
102
eg sleeping. See ibid para 3.28.
103
See ibid para 4.21.
104
See Law Commission, Murder, Manslaughter and Infanticide (n 66) para 1.67.
105
See Law Commission, Murder, Manslaughter and Infanticide: Proposals for reform of the law (n 71) para
21.
106
See ibid paras 17-21.
107
See Bindle (n 99). For feminist critiques of provocation see eg Norrie (n 32).
108
See Ormerod (n 6) 50. See also Herring (n 8) 163. For further discussion see Horder (n 17) chs 6-9, in
particular 130-135; J Dressler, ‘Provocation: Partial justification or partial excuse’ (1988) 51 MLR 467.
96
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Was it a justification or excuse?
An ancillary criticism unrelated to battered women, but related to women in general, is the
onerous sexual infidelity trigger being a justifiable excuse to murder.109 This has meant that
jealous partners could use the defence and the courts indirectly blamed the victim.110 It
appears that more men kill female partners than other way around,111 strengthening the
argument that women require greater protection. It also seems that the Law Commission
appreciates that the suddenness requirement was most-worrying from a battered woman’s
perspective. Although the merged defence seems blurred as its effect with respect to battered
women is unclear, it could be considered workable because of positive experiences in the
United States.
The New Defence of loss of control
The Coroners and Justice Act 2009 aimed to create a more ‘effective, transparent and
responsive’ justice service for victims, providing greater clarity and fairness.112 This looks
promising for battered women, the main beneficiaries of the amendments,113 as the law seems
to be retracting from the stance of rigidity and stubbornness when considering battered
women. The conduct amounting to a loss of control encompasses instances both where one is
unable to exercise self-control or has failed to do so. According to the Lords,114 battered
women may find it difficult if proven that they failed to exercise self-control instead of being
unable to.
It is necessary to undergo an investigation of the new law to deduce whether the position of
female domestic abuse victims has been elevated in the eyes of the law or ‘bettered’. Case
law post October 4th 2010 (when the Coroners and Justice Act 2009 came into effect) and
academic discussion will aid an evaluation as to whether the new law is more beneficial to
domestic abuse victims that kill their abusers than provocation.
The defence of loss of control was derived from the Law Commission reports, in particular
the 2006115 proposals for reform. The new law requires a loss of control owing to a qualifying
trigger which any reasonable person (objectivity) would have acted similarly to. 116 Qualifying
triggers are defined in section 55 of the Coroners and Justice Act 2009 as things said or done
which constituted circumstances of an extremely grave character and cause the defendant a
justifiable sense of being seriously wronged. The requirement of suddenness is no longer
necessary.117 A hybrid test was introduced; allowing for subjective elements related to the
gravity of provocation to be considered when assessing the reasonable man’s reaction.118
Certain provisions favour battered women presently so the rigid position of provocation has
been arguably rescinded. Section 54(4) of the Coroners and Justice Act 2009 excludes
109
V Baird, ‘‘Infidelity plus’: the new defence against murder’ Guardian (23 January 2012)
<www.theguardian.com/commentisfree/2012/jan/23/infidelity-plus-defence-murder> accessed 17 March 2015.
110
M Molan, Cases and materials on Criminal Law (4th edn, Routledge 2008) 205. See also Elliot and Quinn (n
9) 89.
111
Kevin Smith and others, Homicide, Firearm Offences and Intimate Violence 2010/11 (Home Office 2012)
10.
112
Coroners and Justice Act 2009, Explanatory Notes, para 14.
113
J Rozenberg, ‘Battered women who kill to be main beneficiaries as homicide law changes’ Guardian (30
September 2010) <www.theguardian.com/law/2010/sep/30/murder-law-reform> accessed 9 April 2015.
114
HL Deb 7 July 2009, vol 712, col 572.
115
See n 67.
116
Coroners and Justice Act 2009, s 54(1)
117
ibid s 54(2).
118
ibid ss 54(1)(c) and 54(3).
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actions where there is a ‘considered desire for revenge’; which seems practical and useful in
light of recent increases in honour and revenge killings.119 The much-debated fear of
violence120 trigger was included, taking on board Law Commission recommendations.121
Certain amendments meant that the advantageous nature of provocation, predominantly
relating to men, has reduced such as the abolishment of suddenness and sexual-infidelity
trigger.122 Now located under sections 54-55 of the Coroners and Justice Act 2009; the
revised defence is clearer and certain provisions have been included to, evidently, harmonise
the positions of men and women.
The Present Situation: Assessing whether the Coroners and Justice Act 2009 has altered the
Position of Battered Women
It seems clear from previous discussion that provocation was unsatisfactory owing to its
historical and sociological origins. In many unsuccessful battered-women cases, an
unsavoury outcome emerged. This was because it was not even contemplated that females
would use the defence. Males dominated society and females were severely inferior up until
the turn of the 20th century, whereupon equality has now blossomed.
As aforementioned, the rationale for changing the law from the Law Commission and
Parliament clearly identified the problem of battered women being unrepresented as a driving
factor. The new law seemed to follow the reforms to an extent and arguably levelled the
playing field; constituting a sensible rebalancing of the law.123 However, it still is not clear
whether the current position is more beneficial to battered women. This can only be assessed
by examining post-2009 case law and concluding whether the Coroners and Justice Act 2009
has in fact been successful in aiding battered women.
Clough recognises that there is a possibility that the bias may just have been shifted between
genders and that future precedent is significant when concluding whether the new provisions
are just and equitable.124 It is possible that after such heavy criticism, instead of creating a
level playing field; battered women gained an advantage.125 This, more-likely, is because
there are far more battered women than men rather than a different gender balance. This
would support the idea that the new law is ‘better’ for battered women. What is logically
conclusive is that the position of battered women who kill is much better today in the eyes of
the law than before the introduction of the Coroners and Justice Act 2009.
Provisions introduced clearly allude that the
contemplation upon embarking on changes.
believed to accommodate women who kill
imminent but anticipated attack would satisfy
legislative-draftsmen had battered women in
The ‘fear of serious violence’ provision is
their abusive partners.126 Thwarting a nonthis provision. After reading this provision, it
119
R Williams, ‘'Honour' crimes against women in UK rising rapidly, figures show’ Guardian (3 December
2011) <www.theguardian.com/uk/2011/dec/03/honour-crimes-uk-rising> accessed 9 April 2015.
120
Coroners and Justice Act 2009, s 55(3).
121
See Law Commission, Murder, Manslaughter and Infanticide (n 69) para 5.55.
122
Removal of the suddenness requirement for a loss of control (Coroners and Justice Act 2009, s 54) and the
exclusion of sexual infidelity as a factor of loss of control (s 55(6)(c)).
123
See Rozenberg (n 113).
124
A Clough, Loss of self-control as a defence: the key to replacing provocation (2010) 74(2) Journal of
Criminal Law 118, 126.
125
ibid
126
See Ormerod (n 6) 515.
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can be assumed that the criticisms of provocation have been taken on board.127 Females can
more broadly use this provision to satisfy the defence as there is no suddenness requirement
and it seems obvious that an abused woman would anticipate an attack from a violent partner.
McAviney128 recognises that the section 55(4) of the Coroners and Justice Act 2009
‘justifiable sense of being wronged’ requirement is advantageous to men who kill in anger.
This is illustrated by highlighting that the defendant in Mohammed129 could use this
requirement. The defendant killed his daughter on account of her sexual activity (honour
killing) and could possibly use ‘extremely grave’ circumstances to justify this. This seems
unlikely in Mohammed as evidence suggested he had violent tendencies so such arguments
may be disregarded by the jury but another defendant may argue this. Battered women need
this requirement to be abolished for effective protection130 as in all likelihood men could kill
in anger and use this as a justification.
With regards to section 54(4) of the Coroners and Justice Act 2009, Ormerod highlights that
it is very difficult to distinguish revenge from other emotions, using Thornton131 to illustrate
where premeditation plagued the events preceding the killing.132 This highlights possible
difficulties presented to women as they may be accused of acting in revenge for past attacks
by their lovers. However, battered woman syndrome or the pathological and psychological
impact upon them may negate revenge.
The suddenness requirement being removed was heralded a ‘welcome development’.133
Although the time lapsed is relevant under the act in that longer periods evidence
premeditation;134 the question becomes one of fact.135 It must still be temporary as it would
be a case of insanity if not.136 The time elapsed between a trigger and killing still remains
important but Parliament clarified it must no longer be a short gap137 so the main hindrance to
battered women when using provocation has now been removed. This was clarified as the
current position in the Dawes138 case.139 Issues such as the physical weakness of women to
react instantly, the heating-up period, the presumed premeditation, etc. meant that the attacks
women typically carried out were outside the loss of control scope but this has been
recognised and incorporated within the evolved defence.
There is limited case law regarding loss of control as it is a relatively new defence. In
Clinton140 it was clarified that loss of control operates under a self-contained, revised
statutory regime and no guidance can be taken from prior case law. 141 This disassociation by
127
‘Fear of serious violence’ threshold was proposed before the adoption of the Coroners and Justice Act 2009
which was subsequently codified in the 2009 Act.
128
V McAviney, ‘Coroners and Justice Act 2009: Replacing Provocation with Loss of Control’
<https://inherentlyhuman.wordpress.com/2010/10/28/coroners-and-justice-act-2009> accessed 19 March 2015.
129
R v Faqir Mohammed [2005] EWCA Crim 1880.
130
See McAviney (n 128).
131
See Thornton (No 1) (n 48).
132
See Ormerod (n 6) 511.
133
See Clough (n 124) 123.
134
Criminal Justice Act 2003, sch 21, para 9(a).
135
S Edwards, ‘Anger and Fear as Justifiable Preludes for Loss of Self Control’ (2010) 74(3) Journal of
Criminal Law 223, 223.
136
See Ormerod (n 6) 513.
137
Coroners and Justice Bill Deb (3 March 2009) Col 434.
138
Dawes, Hatter and Bowyer [2013] EWCA Crim 322.
139
L Leigh, ‘Clarifying the Loss of Control Defence’ (2013) 177(27) Criminal Law and Justice Weekly 458.
140
R v Clinton, Parker and Evans [2013] QB 1.
141
ibid [7].
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the courts from the pre-2009 case law evidences how there is shift from the classic patriarchal
stance; disregarding the poor judgements of the past. A shift in the stance of the law
preceding the legislative reform signifies the acceptance by the courts of the failings of
provocation with respect to battered women. Cases today demonstrate how women can more
easily successfully claim loss of control. A Bradford woman, Dawidowicz, killed her abusive
partner with a knife from behind and successfully pleaded loss of control in 2014.142
Ridley143 recognised that she was abused and this could lead to loss of control.144 It remains
unclear whether it was a sudden attack but had it not been sudden, she would still succeed
under section 54(2) of the Coroners and Justice Act 2009. This new position therefore seems
better as provocation in such circumstances of delay would fail. Additionally, cases such as
Thornton, Ahluwalia, and Ellis would perhaps succeed today as suddenness has been
abolished.
Requiring a loss of self-control means that male actions such as violent outbursts are
recognised whereas female reactions of fear are not and this limits the extent to which
females are protected. When considering the gravity of provocation and reasonable reaction,
a propensity to violent outbursts would be disallowed as a characteristic because it bears on
the defendant’s general capacity for tolerance and self-restraint. This arguably echoes
Holley.145 However, Ormerod comments that this assumption is incorrect, citing
Parliamentary discussion in support.146 Battered women’s characteristics are not based on
their general tolerance and self-restraint but on the cumulative effect of abuse and fear.
Therefore it seems plausible that a reasonable woman of a similar age would act in a similar
way. Storey clarified that placing an evidential burden on defendants to prove the reasonable
person’s response was going too far in favour of the Crown.147 This seems justified as it
should be enough that they can satisfy that the reasonable person would act similarly without
evidence.
It remains to be seen whether loss of control can become a success story for battered women.
However, one cannot deny that thus far the changes are positive with respect to battered
women who kill. The exclusion of sexual infidelity, suddenness and the introduction of the
‘fear of violence’ threshold alone are significant in shifting the onerous nature of provocation.
Battered women are different from men and so the law needed to recognise this and provide
for them; which it now has. Suddenness being abolished is the biggest triumph of the
Coroners and Justice Act 2009 as this will allow significantly more women, failing before, to
successfully plead loss of control. Due to historic attitudes provocation was clearly in favour
of men and ignored women completely. The number of unsuccessful battered women failing
to make out provocation was worrying and campaigning helped to spotlight this deficiency in
the law. The changes seem to be positive in shifting the balance to neutral between genders.
However, arguably the balance is currently in favour of women.148 Overall, the situation for
women has improved after the introduction of the Coroners and Justice Act 2009 with its
exclusions and amendments to provocation. However, this remains an assertion and can only
be evidenced once a considerable amount of case law assembles.
142
E Wilson, ‘Woman who stabbed partner to death had suffered years of abuse, court told’ The Telegraph
<www.thetelegraphandargus.co.uk/news/11558904.Woman_who_stabbed_partner_to_death_had_suffered_year
s_of_abuse__court_told/> accessed 17 March 2015.
143
Detective Superintendent Mark Ridley
144
See Wilson (n 142).
145
See Holley (n 33).
146
See HL Deb 7 July 2009, vol 712, cols 572 and 579.
147
T Storey, ‘Case Comment Loss of control: "sufficient evidence"’ (2015) 79(1) Journal of Criminal Law 6, 8.
148
See Clough (n 124) 126.
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