Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Control
| Published date | 01 June 2013 |
| DOI | http://doi.org/10.1111/j.1467-6478.2013.00623.x |
| Date | 01 June 2013 |
JOURNAL OF LAW AND SOCIETY
VOLUME 40, NUMBER 2, JUNE 2013
ISSN: 0263-323X, pp. 280±305
Replacing Provocation in England and Wales: Examining
the Partial Defence of Loss of Control
Kate Fitz-Gibbon*
In October 2010, provocation was abolished as a partial defence to
murder in England and Wales. Through the introduction of the
Coroners and Justice Act 2009, a new partial defence of loss of control
was implemented. This sought to overcome problems associated with
the provocaton defence and the gendered operation of the law of
homicide, particularly in relation to male-perpetrated intimate
homicides, and the inadequate response of the law to the contexts in
which battered women kill. This article first provides an account of
these developments, and then examines legal stakeholders' perceptions
of them. Drawing from in-depth interviews with criminal justice
professionals, it considers their perceptions of the operation of the law
of homicide during a period of transition, specifically considering the
formulation of the new partial defence, the initial effects of its
implementation, and the significant differences between the Law
Commission's recommendations and the reforms implemented by the
government.
On 4 October 2010, the British Government abolished the controversial
partial defence of provocation and introduced a new partial defence of loss
of control. Implemented in section 54 of the Coroners and Justice Act 2009,
the new partial defence was designed to allow for the law of homicide in
England and Wales to better cater for the unique circumstances within which
battered women kill while also providing a provision that excludes defen-
dants who kill an intimate partner in response to alleged sexual infidelity. In
the wake of the 2010 homicide law reforms this article has two purposes:
first, to provide an account of the legal developments to the law of homicide
in England and Wales, and secondly, to examine legal stakeholder's
perceptions of these developments. In doing so, this article draws from in-
280
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School. Published by Blackwell Publishing
Ltd, 9600 Garsington Road, Oxford OX4 2DQ, UK and 350 Main Street, Malden, MA 02148, USA
*School of Humanities and Social Sciences, Faculty of Arts and Education,
Deakin University, Locked Bag 20000, Geelong 3216 Victoria, Australia
k.fitzgibbon@deakin.edu.au
depth interviews conducted with members of the English criminal justice
system and considers respondent perceptions of the operation of the law of
homicide during a period of transition, specifically reflecting on the imple-
mentation and initial operation of the new partial defence of loss of control.
In reforming the law of homicide, research in comparable jurisdictions
has noted that whilst law reform can be implemented with the best intentions
at play, unintended consequences can occur in the law's initial operation.
1
As such, in recognizing the need to evaluate the intended and unintended
effects of the English reforms, this research builds on over two decades of
feminist, socio-legal, and criminology scholarship that has considered both
the failure and success of law reform initiatives in relation to rape law, legal
responses to sexual assault and domestic violence, and reform surrounding
the law of self-defence and provocation.
2
The importance of examining the
effects of law reform is captured by Nourse:
The interesting and challenging part is to understand how and when success
lives with failure. This is worth investigating in its own right so that we may
better understand the odd discontinuities of reform rather than simply
assuming the impossibility of change or the ease of effectuating it.
3
More specifically, the importance of evaluating the effects of the 2010
homicide law reforms was also recognized by several respondents through-
out the interviews, as captured in the comments of one policy respondent:
281
1
H. Douglas, `A consideration of the merits of specialised homicide offences and
defences for battered women' (2012) 45 Austr. and New Zealand J. of Crim. 367;
K. Fitz-Gibbon, `The Victorian operation of defensive homicide: Examining the
delegitimisation of victims in the criminal court system' (2012) 21(2) Griffith Law
Rev. 556; K. Fitz-Gibbon and J. Stubbs, `Divergent directions in reforming the
law's response to lethal violence' (2012) 45 Austr. and New Zealand J. of Crim.
318.
2 R. Bachman and R. Paternoster, `A Contemporary Look at the Effects of Rape Law
Reform: How Far Have We Really Come?' (1993) 84 J. of Crim. Law and
Criminology 554; K. Daly and B. Bouhours, `Rape and Attrition in the Legal Process:
A Comparative Analysis of Five Countries' in Crime and Justice: A Review of
Research, ed. M. Tonry (2009); K. Fitz-Gibbon and S. Pickering, `Homicide Law
Reform in Victoria, Australia: From Provocation to Defensive Homicide and Beyond'
(2012) 52 Brit. J. of Crim. 159; C. Goldberg-Ambrose, `Unfinished Business in Rape
Law Reform' (1992) 48(1) J. of Social Issues 173; R. Graycar and J. Morgan, `Law
Reform: What's in It for Women?' (2005) 23 Windsor Yearbook of Access to Justice
393; R. Kaspiew, `Rape Lore: Legal Narrative and Sexual Violence' (1995) 20
Melbourne University Law Rev. 350; C.A. Mackinnon, `Reflections on Sex Equality
under Law' (1991) 100 Yale Law J. 1281; V. Nourse, `Symposium on Unfinished
Feminist Business: The ``Normal'' Successes and Failures of Feminism and the
Criminal Law' (2000) 75 Chicago-Kent Law Rev. 951; K. Tang, `Rape Law Reform
in Canada: The Success and Limits of Legislation' (1998) 42 International J. of
Offender Therapy and Comparative Criminology 258.
3 Nourse, id., p. 977.
ß2013 The Author. Journal of Law and Society ß2013 Cardiff University Law School
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