|Lord Judge LCJ|
The Court of Appeal Criminal Division (Lord Judge, Henriques and Gloster JJ) has handed down judgment in R v Clinton, Parker and Evans  EWCA Crim 2. This is a judgment which should be required reading by all legislators as well as lawyers and students.
The three cases are unconnected factually but each raised the question of interpretation of provisions in the Coroners and Justice Act 2009 Part 2 Chapter 1 (CAJA) relating to the partial defence to murder of what is now known as "loss of control." That this change to the law is formidably difficult will be seen from the court's judgment.
In relation to Clinton, the trial judge - as permitted by CAJA s. 54(6) - had refused to allow his defence of loss of control to be put to the jury. Clinton's case also involved the redefined diminished responsibility defence - now defined in CAJA s. 52 (inserting a new section 2 into the Homicide Act 1957).. He was granted a retrial. The appeals of Parker and Evans related to loss of control and their "loss of control" defence had been allowed to go to the jury. Their appeals against conviction were dismissed.
The changes to the partial defences available on a murder charge were looked at by Law and Lawyer 8th September 2010 just prior to them coming into force on 4th October 2010. The changes to the law are (a) a redefined defence of diminished responsibility (section 52) and (b) the replacement of the old provocation defence with a new defence of "loss of control" - sections 54 and 55. In that post, it was said that - "The new law of "qualifying triggers" is complex." That statement is amply borne out by the Court of Appeal's judgment.
The opening paragraphs of the court's judgment deal with the background to the law and are worth setting out in full. [My emphasis]
of giving consistent effect to section 3 of the Homicide Act 1957, which encapsulated in statutory form the common law defence of provocation, were notorious. As Professor David Ormerod observes in Smith and Hogan's, Criminal Law, 13th Edition, "For the appellate courts to fluctuate so often and so significantly on the interpretations of a defence in cases of such seriousness led to confusion and presented a disappointing spectacle". This measured criticism is entirely justified. With effect from 4 October 2010 section 3 of the 1957 Act ceased to have effect. The ancient common law defence of provocation, reducing murder to manslaughter, was abolished and consigned to legal history books.
It was replaced by sections 54 and 55 of the Coroners and Justice Act 2009 (the 2009 Act) which created a new partial defence to murder, "loss of control". Just because loss of control was an essential ingredient of the old provocation defence, the name is evocative of it. It therefore needs to be emphasised at the outset that the new statutory defence is self-contained. Its common law heritage is irrelevant. The full ambit of the defence is encompassed within these statutory provisions. Unfortunately there are aspects of the legislation which, to put it with appropriate deference, are likely to produce surprising results.
In order to enlighten our understanding our attention was drawn to different passages in the Report of the Law Commission (Report No. 290, Partial Defence as to Murder (2004), the Law Commission Consultation Paper No. 177, A New Homicide Act for England (2005) and the Law Commission Report No. 304 (Murder, Manslaughter and Infanticide (2006). In July 2008 the Ministry of Justice issued its consultation paper in response to these recommendations, Murder, Manslaughter and Infanticide; proposals for reform of the law. Although the title of the Law Commission Report was adopted, its contents were selectively chosen. Looked at overall, the legislation does not sufficiently follow the recommendations of the Law Commission to enable us to discern any close link between the views and recommendations of the Law Commission and the legislation as enacted.
In these appeals the main focus of our attention is the controversial provision which relates to the impact on the "loss of control" defence of what is described as "sexual infidelity". We looked, de bene esse, at the debates in Parliament prior to the enactment. Even on the most generous interpretation of Pepper v Hart, the debates did not reveal anything which assisted in the process of legislative construction. So we must ascertain the meaning of these provisions from their language. As we shall explain, however, the conclusion we have reached is consistent not only with the views which would have been expressed by those who were opposed to this provision in its entirety, but also with the views expressed by ministers responsible for the legislation during its passage through Parliament."
The Lord Chief Justice then sets out the essentials of each case (para. 5) and the relevant legislation at para. 6 - i.e. sections 54 and 55 of the CAJA 2009. It was noted that section 54 contains three components - all of which must be proved to establish the defence of loss of control.
The three components are: (1) the killing must have resulted from loss of self-control; (2) there must be a "qualifying trigger" and (3) a person of the defendant's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way to the defendant. For the defence to be successful, all 3 components must be established. The defence has an evidential burden to adduce sufficient evidence for the judge to permit the defence to go to the jury and, if sufficient evidence is adduced, the jury has to assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not - section 54(5).
These components are then discussed at para. 10 (1st component); para. 11 (2nd component) and para. 30 (3rd component).
A further complication arises if both diminished responsibility and loss of control are pleaded. This arose in Clinton's case and is referred to at para. 33.
The question of "sexual infidelity" arises in connection with the "qualifying triggers." It is section 55(6)(c) which states that in determining whether a loss of self-control had a qualifying trigger, the fact that a thing done or said constituted sexual infidelity is to be disregarded. The judgment contains a very useful, but not exhaustive, discussion of this and and the court's conclusions on it are at paras. 34 to 44. This was the court's main focus of attention.
Lord Judge next considers the responsibility of judges - paras. 45 to 49. Then, each case is considered individually: Clinton at para 50; Parker at 79 and Evans at 107.
"Meaning of "qualifying trigger"
(1) This section applies for the purposes of section 54.
(2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(3) This subsection applies if D's loss of self-control was attributable to D's fear of serious violence from V against D or another identified person.
(4) This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which –
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
(5) This subsection applies if D's loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6) In determining whether a loss of self-control had a qualifying trigger –
(a) D's fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
(7) In this section references to "D" and "V" are to be construed in accordance with section 54."(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.
It appears that the following conclusions may be drawn from the judgment:
1. The law on loss of control is self-contained in sections 54 and 55 - the common law heritage is irrelevant.
2. Section 54(1) sets down the three components of the defence and all must be established for the defence to succeed.
3. Section 54(4) refers to the loss of control being attributable to a thing done or said (or both). The court considered that it was not enough that the defendant personally had a sense of being seriously wronged though that was necessary (para. 12). The questions whether the circumstances were extremely grave, and whether the defendant had a justifiable sense of being seriously wronged, indeed all the requirements of section 55(4)(a) and (b), require objective evaluation. Later, at para. 38, the Lord Chief Justice said - "... to qualify as a trigger for the defendant's loss of control, the circumstances must be extremely grave and the defendant must be subject to a justifiable sense of having been seriously wronged. These are fact specific questions requiring careful assessment, not least to ensure that the loss of control defence does not have the effect of minimising the seriousness of the infliction of fatal injury. Objective evaluation is required and a judgment must be made about the gravity of the circumstances and the extent to which the defendant was seriously wronged, and whether he had a justifiable sense that he had been seriously wronged." (Emphasis added).
4. The law of qualifying triggers is in section 55. Section 55(6)(c) which requires that in the determination of whether a loss of self-control had a qualifying trigger, the fact that a thing done or said constituted sexual infidelity is to be disregarded. Thus, as drafted, the section appears to rule out consideration of sexual infidelity altogether when the question of qualifying trigger is under consideration.
This resulted in extensive (though not comprehensive) discussion in the judgment. The subsection is referred to as being "formidably difficult." The court held that:
Sexual infidelity on its own cannot qualify as a trigger for the purposes of the second component of the defence. This is clearly excluded by section 55(6)(c). However, 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 subsections 55(3) and 55(4) then the prohibition in section 55(6)(c) does not operate to exclude it.
Sexual infidelity is not defined in the legislation though there is discussion in the judgment about it.
5. Sexual infidelity may be considered in relation to diminished responsibility (section 52) and also in relation to the third component of loss of control - namely section 54(1)(c) - "a person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
6. The words "considered desire for revenge" in section 54(4) arose in the case of Evans. The trial judge's direction was criticised by the appellant for not offering the jury sufficient elucidation of the significance of the word "considered." However, the Court of Appeal said that the judge had directed the jury in accordance with the statutory language and there was no need to rewrite it. "The language is clear" said the Court of Appeal. Whether this point returns in a future case remains to be seen.
Interestingly, the Court of Appeal did not refer to the Explanatory Notes to the Coroners and Justice Act - see Notes s.54 and Notes s.55. I leave it to the reader to decide whether those notes support the court's conclusion. I do not find the notes especially clear on this point. However, it was interesting that the Court of Appeal felt "fortified" by views which had been expressed in Parliamentary debate by Anna Eagle MP (para 41), Claire Ward MP (para 42) and Lord Bach (para 43).
This is not a particularly good example of law reform though, in fairness, the new law is not without good features such as the fact that loss of control does not have to be sudden - (a problematic requirement of the old provocation defence). It may be that this reform has replaced one "disappointing spectacle" with another. Doubtless, this is a subject to which we shall return.