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Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity

Journal of Criminal Law, Vol. 76, pp. 254, 2012

17 Pages Posted: 20 May 2012 Last revised: 24 Nov 2013

Dennis J Baker

University of Surrey - School of Law

Lucy Zhao

University of Sheffield

Date Written: May 17, 2012

Abstract

This article considers the decision of the Court of Appeal in R v Clinton [2012] EWCA Crim 2, [2012] 1 Cr App R 26 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. Conceptually, 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 prevented 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, defense, murder, sexual infidelity, loss of control defence

JEL Classification: K10, K14, K40

Suggested Citation

Baker, Dennis J and Zhao, Lucy, Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn on Sexual Infidelity (May 17, 2012). Journal of Criminal Law, Vol. 76, pp. 254, 2012. Available at SSRN: https://ssrn.com/abstract=2061558 or http://dx.doi.org/10.2139/ssrn.2061558

Dennis J. Baker (Contact Author)

University of Surrey - School of Law ( email )

Guildford
Guildford, England GU2 7XH
United Kingdom

Lucy Zhao

University of Sheffield ( email )

17 Mappin Street
Sheffield, Sheffield S1 4DT
United Kingdom

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