Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity
| Author | Dennis J. Baker,Lucy X. Zhao |
| DOI | 10.1350/jcla.2012.76.3.773 |
| Published date | 01 June 2012 |
| Date | 01 June 2012 |
| Subject Matter | Article |
Contributory Qualifying and
Non-Qualifying Triggers in the
Loss of Control Defence: A Wrong
Turn on Sexual Infidelity
Dennis J. Baker* and Lucy X. Zhao†
Abstract This article considers the decision of the Court of Appeal in R v
Clinton where Lord Judge CJ speaking for the Court of Appeal held that
sexual infidelity could be considered under the third prong of the new
partial defence of loss of control, even though it is expressly excluded
under the second prong. We argue that sexual infidelity is excluded from
being considered under all the prongs of the new defence. It is expressly
excluded as a form of qualifying provocation, which means it cannot be
considered as a ‘circumstance’ that might prevent a person of D’s sex and
age with a normal degree of tolerance and self-restraint from killing. The
objective tests in the new defence overlap, because the jury already has
objective self-restraint in mind when it is considering the objectiveness of
the provocation. When the jury is considering whether a normal person
would have been provoked by the victim’s conduct, it is also considering
whether a normal person would have exercised self-restraint. Concep-
tually, these are two aspects of a single broader question: Was it reasonable for
the defendant to lose control? Therefore, the jury cannot consider
whether sexual infidelity prevented a person of a normal degree of
tolerance from exercising control, even if it is a circumstance that relates
to some other qualifying trigger. Where sexual infidelity is a (major)
contributory trigger for the loss of control, it should not be considered
under any of the prongs of the defence. If D has been taunted about his
impotence in circumstances where he is enraged by his wife’s sexual
infidelity, the defence will only be made out if the jury accepts that the
taunts about the impotence constituted objective provocation on their
own, and that the taunts about the impotence per se might have pre-
vented a person of normal control and tolerance from exercising self-
restraint. The sexual infidelity would have to be compartmentalised, so
that the jury would not be influenced by it.
Keywords Provocation; Sexual infidelity; Murder; Loss of control
In R vClinton1the Court of Appeal considered the new partial defence of
loss of control. In particular, the court considered to what extent sexual
infidelity is excluded as a qualifying trigger in the defence. By ‘qualifying
trigger’ we mean conduct that qualifies as provocation under the new
legislation. Many acts may be provocative, but only provocative acts that
satisfy the objective tests found in the new defence count. Parliament
went to great lengths to exclude certain forms of provocative conduct
* MPhil, PhD Cambridge; Lecturer, King’s College London; e-mail:
dennis.baker@kcl.ac.uk.
† MPhil, PhD Cambridge; Lecturer, University of Sheffield: e-mail:
Lucy.Zhao@sheffield.ac.uk.
1 [2012] EWCA Crim 2, [2012] 1 Cr App R 26.
254 The Journal of Criminal Law (2012) 76 JCL 254–275
doi:10.1350/jcla.2012.76.3.773
from qualifying as a trigger under the new defence.2Sexual infidelity is
expressly excluded from counting as a qualifying trigger, so if a person is
provoked by sexual infidelity the defence cannot be raised.3Parliament
took this step because sexual infidelity is so common in modern society
that it is not considered as conduct that could impact a person’s capacity
for control to the extent that it might prevent him from restraining
himself from killing. In R vClinton it was held that sexual infidelity is
relevant to answering the question of whether the defendant objectively
lost control under the third prong of the new defence. This conclusion is
clearly wrong.
In this article, we will argue that the Court of Appeal got the law
completely wrong. The court failed to grasp the actual workings of the
new law. We will argue that sexual infidelity cannot be considered
under any of the prongs of the new defence. Under the new law,
Parliament bifurcated the objective inquiry because it wanted to narrow
the new defence. It wanted to exclude certain forms of provocation from
being considered, even where those forms of provocation might have in
fact caused D to lose control. It is further argued below that the Court of
Appeal overlooked the fundamental policy issues that led Parliament to
enact a narrower defence of loss of control.
The facts of R vClinton4clearly indicate that sexual infidelity was the
dominant trigger which caused Mr Clinton to seek revenge and even-
tually lose control. Mr and Mrs Clinton had lived together for 16 years
and had been married since 2001. They had two children of school age.
Mr Clinton was 12 years older than Mrs Clinton and had a history of
depression for which he was taking medication. Two weeks before Mr
Clinton killed Mrs Clinton she had told him that she wanted a trial
separation. The relationship had been in trouble for some time, but by
mid-September 2010, via Facebook, Mrs Clinton had come to know
another man, Mr Montgomery. A relationship developed between Mrs
Clinton and Mr Montgomery, and about eight weeks after meeting him
she moved in with her parents. The children remained in the matrimo-
nial home in the care of Mr Clinton. Mrs Clinton’s only contact with Mr
Clinton after leaving him was for the sake of the children. She returned
to the matrimonial home to look after the children each day when they
returned from school until Mr Clinton returned home from work.
Mrs Clinton left the matrimonial home early in November 2010, but
by 12 November Mr Clinton had learned that she had commenced a
new relationship. On Saturday 13 November Mrs Clinton and her
estranged husband took their children swimming, and she also joined
them for dinner at the matrimonial home on Sunday 14 November. On
that day Mrs Clinton told the appellant that she had met someone else.
That evening Mrs Clinton’s motor car (said to be her most treasured
possession) was stolen from the street in front of her parent’s house.
2 For a fuller discussion see D. J. Baker, Glanville Williams’ Textbook of Criminal Law
(Sweet & Maxwell: London, 2012) 729–37.
3 Coroners and Justice Act 2009, s. 55(6)(c).
4 [2012] EWCA Crim 2, [2012] 1 Cr App R 26. A more detailed account of the facts
can be found ibid. at [50]–[75].
Qualifying and Non-Qualifying Triggers in the Loss of Control Defence
255
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