Vera Baird argues that despite the rulings of some regressive judges that infidelity can count as provocation, we're still moving forward when it comes to ensuring women's safety
Three years ago, when Labour was in government we legislated to stop sexual infidelity as a defence to murder, whatever the circumstances. A partner’s affair would no longer be treated by courts as a defensible reason to lose self control and kill.
Giving judgment, in three domestic murder appeals last week, lord chief justice Judge ruled that:
“Where sexual infidelity is integral to and forms an essential part of the context the prohibition does not operate to exclude it.”
It seems that Parliament says infidelity doesn’t count and the court says it does.
Killing a wife for infidelity was “classic” provocation before our new law. The courts were littered with cases in which men blamed their partner’s adultery for making them kill her and claimed manslaughter instead of murder and a significant reduction in sentence.
In a case called Smith in 1999, senior judge Lord Hoffman acknowledged that “finding a wife in adultery” was a recognised justification for killing in a loss of control.
He warned that:
“Male possessiveness and jealousy should not today be an acceptable reason for the loss of self control leading to homicide.”
Still, in 2008 Justice for Women asked a senior judge why he had accepted a plea of guilty to manslaughter when a man had furiously stabbed his wife.
“Because it was classic provocation! She was leaving him for another man.”
So the coroners and justice act 2009 severely restricted the loss of control defence to murder, and it specifically banned infidelity from being claimed as a trigger – it was contrary to public policy for it to justify murder, any longer.
Last week, Lord Judge spoke in studiedly gender-neutral terms but that does not alter the history that it is primarily men who have killed their unfaithful partners and claimed the defence. Women who campaigned for us to make this change are devastated at how quickly the courts have undermined it.
Although he accepted that the statute bans infidelity as a trigger for a loss of self control, he regards it as unwise.
Lord Judge reasoned that every circumstance surrounding a killing has to be considered and if infidelity was present it might have made other triggering conduct harder to bear.
So while, as we intended, there is no defence of loss of control through infidelity, there is now a defence of lost control through infidelity-plus-other-triggering conduct – for instance she was unfaithful plus she goaded me about it.
But the statute says:
“In deciding 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”.
So, unwise or not, how perfectly clear law has been judicially evaded ought to be an issue taken forward by the Crown on appeal to the Supreme Court.
However, this is just one clause.
It specifically outlaws infidelity but not threatening to leave, goading about poor sexual performance or a thousand other kinds of provoking conduct as triggers for loss of control.
All those kinds of conduct are just as capable of provoking the jealousy and possessiveness Lord Hoffman deplored and they have all been as frequently claimed as defences under the old law of provocation.
So, the overall scheme of the new law is to make it significantly harder for any of these acts to be claimed successfully as a defence for killing the person who did them.
Whatever is claimed to have provoked the loss of control will not be a defence unless it was “extremely grave”, giving the defendant “a justifiable sense of being seriously wronged” and was conduct that would make someone with “a normal degree of tolerance and self-restraint” similarly kill the victim.
These are all far higher tests than before. In two of the three appeals in this judgment, the clause excluding infidelity was irrelevant because the defendants had killed their partners for trying to leave. Under the old law they might have been acquitted but both juries rejected the defence under the new narrowly drawn criteria and the Court of Appeal agreed.
In the third case, the trial judge banned the plea of infidelity, using the exclusion clause that the Court of Appeal dislikes and that defendant must now be retried with the defence allowed. Of course he too may have been convicted had his case gone forward. We shall soon see what a jury, properly directed on the new law, makes of killing as a response to infidelity.
This statute markedly improves too, the position of people who kill their abusive partners.
For the first time ever, if they do so through a loss of control caused by fear of serious violence, they have a statutory defence to murder. The majority of people benefitting from this will be women for whom the old law of provocation simply did not work. It required that the defendant was angered to kill and abused women were not angry but afraid.
This statute is gradually ending the injustice that angry people, mostly men, who kill their partners are acquitted of murder and frightened people, mostly women, who kill their abusers are convicted of it. This judgment is upsetting for women campaigners but, seen against the overall legislative scheme, though it is a totemic blow it isn’t a mortal one.
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