R v Clinton (1), Parker (2) and Evans (3)
| Jurisdiction | England & Wales |
| Judge | The Lord Chief Justice of England and Wales |
| Judgment Date | 17 January 2012 |
| Neutral Citation | [2012] EWCA Crim 2 |
| Docket Number | Case No: 2011/04258/C3 (1)2011/03081/D1 (2)2011/03115/C3 (3) |
| Court | Court of Appeal (Criminal Division) |
| Date | 17 January 2012 |
[2012] EWCA Crim 2
The Lord Chief Justice of England and Wales
Mr Justice Henriques
and
Mrs Justice Gloster DBE
Case No: 2011/04258/C3 (1)2011/03081/D1 (2)2011/03115/C3 (3)
IN THE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM:
(1)HH JUDGE SMITH (READING CC); (2) HH JUDGE METTYEAR
(3) MR JUSTICE LLOYD JONES
(1) T2010/7430; (2) T2010/7390-1; (3) T2010/7399
Royal Courts of Justice
Strand, London, WC2A 2LL
M Birnbaum QC for Clinton (1)
W Harbage QC for Parker (2)
C Clee QC for Evans (3)
A Edis QC for the Crown
Hearing date: 25 th October 2011
Introduction
The difficulties 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 & Hogan's, Criminal Law, 13 th 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 convictions
These are appeals against conviction for murder by:
(a) Jon-Jacques Clinton was born in 1965. On 15 th November 2010 he killed his wife, Dawn Clinton, then aged 33 years, in the family home in Bracknell. On 23 rd May 2011, in the Crown Court at Reading before Her Honour Judge Smith, he was convicted of murder and arson. On the following day he was sentenced to imprisonment for life on count 1, with a specified minimum term of 26 years, less 187 days, for murder and to 2 years imprisonment concurrent on count 2. The verdict was returned by the jury after considering the partial defence of diminished responsibility. Judge Smith ruled that there was insufficient evidence of loss of control for that issue to be considered by the jury. The correctness or otherwise of this decision forms the basis for the present appeal.
(b) On 26 th October 2010 Stephen Parker killed his wife, Jane Parker, in the family home in…. On 9 th May 2011, in the Crown Court at Hull before His Honour Judge Mettyear, the jury rejected the loss of control defence and convicted him of murdering his wife. He was sentenced to imprisonment for life. The specified minimum term was 17 years, less 196 days.
(c) Dewi Evans killed his wife…on 11 th November 2010 in the matrimonial home in South Wales. On 29 th June 2011, in the Crown Court at Swansea before Mr Justice Lloyd Jones, again, the jury rejected the loss of control defence and he was convicted of murdering his wife. He was sentenced to imprisonment for life, with a minimum specified term of 11 years, less 248 days.
The legislation
The "loss of control" defence
Section 54 of the 2009 Act provides:
" Partial Defence to Murder: loss of control
(1) Where a person ("D") kills or is party to the killing of another ("V"), D is not to be convicted of murder if—
(a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(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.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
(3) In subsection 1(c) the reference to "the circumstances of D" is a reference to all of D's circumstances other than those whose only relevance to D's conduct is that they bear on D's general capacity for tolerance or self-restraint.
(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.
(7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.
(8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it."
Section 55 provides:
" 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;
(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.
(7) In this section references to "D" and "V" are to be construed in accordance with section 54."
This is the "loss of control" defence in its entirety. Its components are set out in section 54(1), as amplified in section 55. There is however a further reference in the 2009 Act to the concept of loss of control. Section 2 of the Homicide Act 1957, which dealt with the diminished responsibility defence, has been replaced by section 52 of the 2009 Act and, as with the law relating to provocation, the ingredients of the defence have changed. Its potential relevance to the issues under discussion is readily identified. There are cases, and Clinton was one, where the defences of loss of control and diminished responsibility will be raised in the same proceedings. The defence arises from an abnormality of mental functioning which
"…(b) substantially impaired D's ability to do one or more of the things mentioned in sub-section (1a) and…
(1A) those things are—
(a) to understand the nature of D's conduct;
(b) to form a rational judgment;
(c) to exercise self-control.…"
The first feature of section 54 is that it...
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