September 19, 2013

The ‘jealous man’s’ defence lives on in the English criminal courts

This month the Home Secretary Theresa May MP announced a major review in England and Wales of how police respond to domestic violence. The much-needed review comes in the wake of several high profile cases of women killed by former male partners with a recorded history of violence against women. These cases, including the deaths of Clare Wood and Maria Stubbings, have rightly led to community concern as to why victims of domestic violence are not better responded to, and protected, by the police.

Problematically, recent research reveals that a failure to adequately respond to domestic violence is not unique to the police service in England and Wales. Less than three years after the abolition of the controversial partial defence of provocation, the ‘jealous man’s’ defence has once again ingrained itself in the English criminal courts, albeit under a new name of ‘loss of control’.

In October 2010 a new partial defence of loss of control was implemented following the abolition of the provocation defence. Provocation had long caused controversy in the English courts because of its inability to accommodate the desperate experiences of women who killed their long-term abusive male partners while too readily accommodating the unmeritorious contexts within which jealous and controlling men killed women who were leaving them or had committed infidelity.

In an attempt to distance the English law of homicide from the injustices associated with provocation, the new loss of control defence included 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’.

However, while implemented with the best intentions in mind, less than two years later the successful appeal against conviction in the case of Jon Jacques Clinton has reopened the defence to cover the context of homicide that it was specifically designed to exclude.

Jon Jacques Clinton killed his wife, Dawn Clinton, in November 2010 after she allegedly admitted to having sex with five different men and sniggered at the prospect of Clinton committing suicide as a result of their relationship breakdown. Clinton had previously discovered messages on his wife’s Facebook site containing sexual innuendos and discovered that her personal status was listed on the social media site as ‘separated’. It was these images and her listed status combined with her alleged admissions during their later argument that Clinton argued led to his loss of self-control and use of lethal violence. Dawn died from a combination of blunt trauma injuries and asphyxiation.

Clinton was initially convicted of murder in May 2011 at the Reading Crown Court. During the trial, the judge instructed the jury that were unable to consider the loss of control partial defence given that the sexual infidelity exclusion meant that Dawn’s confession of infidelity could not be considered as having caused Clinton’s justifiable sense of being seriously wronged.

However, on appeal in January 2012 the Court of Appeal quashed Clinton’s murder conviction, ruling that the law should not isolate specific factors such as sexual infidelity for exclusion and that it is unrealistic and potentially unjust to do so. What this ruling means is that in future cases where infidelity is part of broader conduct that results in a person losing their self-control it will be able to be considered, alongside other factors, in raising a partial defence of loss of control.

In making this judgment, the Court of Appeal has likely ensured that the provision to exclude sexual infidelity will be largely ineffective in minimising the use of this defence by jealous men who kill their female partner in response to an allegation of sexual infidelity. Importantly, this decision was handed down over a year ago now. While there was initial concern in the legal community and amongst media commentators following this decision, the defence of loss of control continues to be open for abuse and manipulation.

Prior to the Court of Appeal’s decision in Clinton, interviews conducted with members of the English judiciary and independent legal counsel in October 2010 revealed a perception among legal practitioners that the new defence was merely a ‘rebranding’ of the provocation defence and would not signify a significant change in practice. Unfortunately less than three years later the views of those working within the English criminal justice system appear to have been validated.

The Home Office has dedicated many resources in the past 12 months to improving responses to violence against women. While the steps taken so far should be commended, the most serious cases of lethal domestic violence are at risk of finding an avenue of sympathy and legitimization through the loss of control defence. A conviction for manslaughter in these cases suggests to the community that the law partially legitimizes and excuses the lethal actions of these men.

It is time for the British government to acknowledge that this partial defence is merely provocation in disguise.  It is clearly not operating as envisaged by the government or in line with the Home Office’s current dedication to improving responses to violence against women.

As it currently stands this defence leaves the law open for abuse. While it remains available it will undoubtedly by manipulated by controlling and jealous men who have killed a female partner for merely exercising her rights to leave an intimate relationship or to form a new sexual relationship. 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 defence.