Read Vera’s article intended for the Guardian ‘Comment is Free’ section. (they published an early draft instead of the final version that appears here):

Parliament made clear three years ago that sexual infidelity should not be allowed as a defence for murder, whatever the circumstances. A partner’s affair could no longer be treated by Courts as a defensible reason to lose self control and kill.

However, 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 2009. The courts saw case after case 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 the case of Smith in 1999 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!” he said, ”She was leaving him for another man.“

In 2009, the Coroners and Justice Act was passed, severely to restrict 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 this change are devastated at how quickly the courts have undermined it.

Although he accepted that the statute bans infidelity as a trigger, 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 tolerate. So there is no defence of loss of control through infidelity, but there is one 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 that specifically outlaws infidelity and only infidelity as triggering conduct. Threatening to leave, goading about poor sexual performance and a thousand other kinds of provoking conduct were never excluded, by specific clauses in the new law, as triggers for loss of control. Yet they are all 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 has 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.

Overall this statute should end the injustice that angry people who kill their partners are acquitted of murder and frightened people who killed their abusers are convicted of it. This judgment, seen against the overall legislative scheme is a totemic blow but not a mortal one.

Making women safe is something on which the Labour Government spent time and resources. Now, the well-known concern that the Coalition Government is hurting women disproportionately in the purse compared to the impact on the male wallet, has turned a more worrying corner. Because the cuts in public spending, legal aid, local government and the police – to mention just a few – appear not to be being assessed for their cumulative impact on women’s personal safety.

Street lights being turned off and poorer public transport make women anxious, whilst police cuts could lead to fewer specialist officers to support women who are raped or assaulted and will see 16000 less police on the beat. The closure of many domestic violence services and the end of legal aid for family law may mean that abused women have no way out of dangerous relationships. Job cuts in the public sector are turning the clock back and women who want to work may instead be caught in poverty and powerlessness at the kitchen sink.

This is not a scare story. Serious concerns are being voiced by innumerable women’s organisations as diverse as the Women’s Institute, which has produced a seminal paper on the impact of the legal aid cuts, and the Eaves/Poppy project, which has pointed to high numbers of women suffering stalking and so-called honour crimes with nowhere to turn for help. The overall true impact is hard to measure or even to grasp on the general information that is available nationally now.

It is unlikely that a responsible Government would deliberately expose half of the population to danger. But the last 18 months has shown with stunning clarity that this almost wholly male, boys’ public school-dominated Government has little cultural affinity with women’s issues and no understanding of the impact of their decisions on women’s lives.

Hence they attempted to give anonymity to rape defendants, 50 years after the Heilbron Review rejected it and when the real problem is that the trial system doesn’t give women the confidence to prosecute. Kenneth Clarke insinuated that ‘real’ rape was being attacked by a stranger, when 80% of cases are by partners, ex partners or acquaintances.

He proposed 50% sentence cuts for men who plead guilty practically on arrest, at the very time when the complaint to conviction rate – which improves as a case progresses – is just 7%. As it becomes ever more obvious to police and the courts that rape is frequently a serial offence, the government plans to delete 17000 rape suspects from the DNA database, removing any chance of a match in future cases.

Understanding the need to be sympathetic, the Government announced that victims of domestic violence will be exceptions to the ban on family legal aid. However the definition of domestic violence is tighter than the well-used ACPO one, and the evidence required to prove abuse is narrowed to exclude almost everybody who hasn’t got a court order already. When Parliament debated this move, the ConDems talked constantly about “false claims” of domestic abuse, not about safeguarding the vulnerable. Most estimates are that 80% of women who would currently get help through legal aid will be left to fend for themselves when they are trying to get out of a violent relationship, which is well-known to be the most dangerous time, as domestic violence escalates when the perpetrator tries desperately to regain control.

Equally worrying is that, by removing family law from the scope of legal aid, violent men will handle their own cases at court, getting a state-sponsored opportunity to abuse their victims further by cross-examining them face to face.

But recent spending and legislative decisions by the Government aren’t just impacting on women in abusive relationships. They also have worrying implications for the safety of a much wider group of women too.

Over half of local authorities who responded to a Labour Party survey last month were reducing their street lighting to save cash; 98 out of 133 councils approached by the Times were scaling back lighting or considering doing so. While Local Government and Communities Secretary Eric Pickles calls this“ a sensible decision” the Police Federation says:

“The lighter an area is the safer it is—the cuts could well mean that back streets and outer areas become a more fertile area for criminals to become more active in.”

All these potentially damaging changes are already in progress. There are additional worries about who will commission domestic abuse support services when Primary Care Trusts are scrapped; what priorities new Police Commissioners will set for spending after November 2012. As women’s incomes are squeezed and men also lose work, the links which exist between economic stress and domestic violence suggest that women will become more likely to be victimised, at a time when they are less resourced to get away- a potently poisonous combination.

Although some work has been done to audit the cumulative impact of these recent changes by False Economy and Voluntary Sector Cuts, there is not, as yet, a clear picture. Yvette Cooper has asked me to chair a Women’s Safety Commission, to go nationwide and to examine with speed and thoroughness the impact of spending and policy changes, as well as to consider legislative measures that could safeguard women’s safety, despite the downturn and the dearth of public funds. We will be coming shortly to a place near you, but in the meantime, click here to go to the website and send us your views. We need your help to find out whether these widely held concerns are better, or worse, than reality.