Vera Baird DBE KC

Writer, Lecturer, Parliamentary Consultant and Co-Director of Astraea: Gender Justice

“Homicide, Partial Defences and Gender Equality” – University of Hertfordshire

Homicide is the most serious crime in the criminal calendar.
It ranges from contract killing where there is a plain intention to execute, through manslaughter causing death by  gross negligence  or dangerous driving, the killing of an infant by the mother within 6 months of birth,  without mentioning  genocide, suicide pacts and mercy killing
The top of this pinnacle of death-causing crimes is Murder – the most serious crime of this most serious crime of homicide.  Though it is now boiled down to being – Killing either intending to kill or to cause really serious bodily harm – it is extraordinary  that murder has never been defined in statute law and as David Ormerod, the distinguished editor of Smith and Hogan “Criminal Law” (12th Edition OUP 2008) puts it, the only definition “derives from a book from the seventeenth century.”
The Law Commission recently described murder as “a rickety structure set upon shaky foundations”
And this   is the most serious crime we know?
Many problematic issues arise one of which is my topic of partial defences to murder and gender equality
The partial defences to murder are diminished responsibility and, importantly for my theme, provocation. They are partial defences because if they are found,  there is no acquittal from homicide but to the conviction will be for manslaughter only.
Provocation is killing during a sudden and temporary loss of self control caused by things said or done or both which may have caused a reasonable person to react as the defendant did.
And the story of their interaction with gender equality starts about 15 years ago with 2 women Kiranjit Ahluwalia and Emma Humphreys who didn’t know each other , were could hardly have been more different  from one another but had in common that:
Both were all suffering domestic violence.
Both killed their violent partners
Domestic Violence
•    Two women are killed each week in England and Wales through domestic violence (Home Office statistics)now in England and Wales
•    500 women each year who have experienced domestic violence in the preceding six months commit suicide every year. Of those, just under 200 attended hospital for domestic violence on the day that they committed suicide. [Walby, S. (2004) The Cost of Domestic Violence. Women and Equality Unit]
•    1 in 4 women experience domestic violence during their lifetime and 6% to 10% of women experience domestic violence in any given year (Analysis of ten separate domestic violence prevalence studies by the Council of Europe 2002)
•    Domestic violence has a higher rate of repeat victimisation than any other crime. (Home Office, July 2002)
•    77% of victims of domestic violence are women. [HM Government (2008) Saving Lives. Reducing Harm. Protecting the Public. An Action Plan for Tackling Violence 2008-2011]Male victims are often victims of males – brother on brother, gay lovers father and son but it exists from women to men.
•     (Dobash and Dobash). Critically, men’s opportunities for escape and independence are much different. Men are not clamouring for refuge space.
•    Victims often depend on intervention as they are trapped by what Stark calls coercive control; sexual violence and control, degradation, intimidation, stalking, surveillance, micro control of everyday life, shaming, isolation (separation from family, friends and work).
•    Every minute of every day there is a call to a police station somewhere in England and Wales from someone complaining of domestic violence and yet the British Crime Survey – which uses interviews to ask people whether and what kind of crime they have suffered – suggests that only 20% of victims ever complain to the authorities. When they do, it is usually after a large number of assaults perhaps as many as 35. But as a Government we invested heavily and believe that we have made it easier to complain and that victims may now only tolerate about 20 incidents, but that is still a lot of suffering and danger since levels of violence escalate People get  demoralized, when violence is at home, the very place where we all want to be safe. They are unable to speak out, let alone get out.
•    The 2 women.
•    Emma Humphreys
Her Father left when she was small, leaving a mother who did not cope. Emma missed school, drank  got into drugs, and prostitution by  13 and  lived with a series of pimps. At 16 She met Trevor who took her in so that she would earn cash for him on the streets. He forced sex on her himself and beat her up if she talked too much about her clients – he was fiercely possessive
took the money, slapped her when she drank. She went miserably to a pub, one night and he came in with some mates to whom he said that they were were ok for a gang bang later. She went home, lay down on the landing and cut her wrists. When he arrived he mocked her for making a poor job of it. He took his trousers off and was clearly about to have sex with her, even as she bled but she stabbed him once in the stomach with the knife she had used on her wrists. He died. She was 16. She was convicted of murder and imprisoned for life. Her defence was provocation. In short, the Judge asked the jury whether she did lose her self control because of the threat that he would have sex with her, as he had so many times before and would a reasonable woman of her age have done so.
Kiranjit Ahluwalia  was married to a veritable monster for ten years. He had frequently beaten her raped her; tried to strangle her, twice threatened to gauge her eyes out and she had attempted suicide twice. One night he pushed her head down on the ironing board and pressed the scalding hot iron to her cheek, causing excruciating pain. His sadistic lust slaked, he fell into an alcoholic sleep. She went to bed in agony. Got up to say why are you asleep when I cant? Why are you enjoying your life when I cant? She took a stiff drink brought some petrol from garage, poured it into a nappy bucket, went upstairs and threw it over him in his bed, throwing a candle after it and fleeing from the fireball that killed him. The judge asked whether this was a sudden and temporary loss of self control when she had gone to bed between the iron incident and the killing.
Most people would think that these women should not have acted as they did but had strong provocation and are far from properly categorized as murderers in the same group of criminals as the Soham killer and Mrs West.
Two stories of male killers
One from Midlands who domineering to partner sometimes violent. At court had nothing to accuse her of save that she nagged him and that, on the occasion when he lost control, she had inflamed him by the way she moved the mustard pot. I do not know whether he succeded in the defence of provocation, it is remarkable the he ran it in those circumstances.
The second story concerns a man from Leeds, who was acquitted claiming that he killed having lost his self control when his otherwise perfectly nice wife, of whom he was possessively jealous and massively  controlling, told him that she was leaving him for her personal trainer
In domestic killings, of which these are examples,men kill because of anger and sexual jealousy. Women kill to escape from abuse.
I repeat – the defence of provocation is where the defendant says that the killing was done during a sudden and temporary loss of self-control caused by things said or done by the victim, and in circumstances in which a reasonable person might have reacted as the defendant did.
The point of the defence is that although the defendant has killed, his blameworthiness for overreacting is mitigated by provocation from the victim. Originally, it was necessary for the defence to be wrong. The philosophy behind provocation—that its presence reduces the blameworthiness of killing—does not make sense if a victim did only what he/she had a right to do, or was not wrong to do it.
However, in this century the requirement that the provocation must be wrong in some way has disappeared. In a case called Doughty (1986) 83 CAR 319 a man was acquitted of murder when he claimed that he had been provoked to kill by a baby crying.
In recent years, men have killed women and claimed they were provoked to lose their self-control by nagging and by such issues as the mustard pot and the personal trainer. There were some cases when the CPS did not even charge a man with murder if his defence was some kind of unwifely conduct of this kind either because they felt it was fair. Or that it would work and so prosecuting for murder would be a waste of time.  (The History of provocation is founded on cases of men killing their wives caught in or suspected of adultery. Quoted with approval in Blackstone’ s Commentaries is a judge saying that killing an adulterous wife “is the lowest degree of manslaughter …. because there could not be a greater provocation” Though that case was in 1671.
There are two parts to the defence of provocation. Killing in a sudden and temporary loss of self control because of things said and done AND  that a reasonable person might have reacted to that conduct as the defendant did. Surely killing a partner for nagging, moving the mustard pot or wanting to go off with a personal trainer is not the act of a reasonable person. So how did it come about that the defence was run and at least one of these men acquitted of murder and convicted only of manslaughter?
The culprit is the House of Lords. In a case of Morgan James Smith in (2001) 1AC 146 their Lordships said that, when considering that 2nd issue, whether a reasonable person might have reacted to the provocation as the defendant did, all the characteristics of the defendant must be taken into account.
It is shown that he lost self control, the question is would a reasonable person also have lost self control and done what he did. If the defendant, in a different kind of case, is twelve years old, to be fair, one must consider whether a reasonable person of the same age might have reacted in the same way. Self-control grows with maturity and so the test should be would a reasonable twelve year old have reacted in that way. However, in the Smith case their Lordships said that ALL the defendant\’s characteristics have to be taken into account, when assessing the second test. Of course that would include such characteristics as being of a jealous, possessive or oppressive and  having a bad temper or a short fuse.
Therefore, in answering the question would a reasonable person have reacted as the defendant did, it is a reasonable person who is jealous, possessive or oppressive, bad tempered and having a short fuse Would that reasonable person have behaved as the defendant did? That is to say –  would that reasonable person with all these characteristics have done as the man with all these characteristics did.
Obviously, if one imputes the defendant\’s characteristics to the reasonable person, the reasonable person turns into the defendant and the question of whether a reasonable person—who has now become the defendant—might have reacted as the defendant did becomes an empty one and there is no second requirement of reasonableness at all.
So at the time of Morgan James Smith (2001)
(1)   there was no need for conduct to be wrong in order to count as provocation – as in moving the mustard pot
(2)   Because the jury must take into account “things said and done” in posing the second test, trivial behaviour such as moving the mustard pot, has to be left for the jury to consider as potential provocation. The courts have said that what must be considered is “everything said and done”. The fact of leaving something trivial can add credibility to it as defence material
(3)   There is no second requirement of whether the reaction to the provocation was reasonable at all.
Add it all together and the only question for the jury to answer in a provocation defence is did he kill her having lost his self-control because of something she did. If so, he has a defence.
This offers little protection from the murderously bad tempered and is not a rational test on which to expect a jury to make a decision.
And what does it say to the children or parents of a victim if there is an acquittal of murder no this basis? The state is telling her grieving family that he is not particularly to blame. She  bears partial responsibility for her own death – because she moved the mustard pot.
The Privy Council did not agree with Smith and in AG for Jersey v Holley (2005)2 AC 580 said that the court should take all his characteristics into account insofar as they increase the gravity of the provocation but should not impute to the reasonable person any characteristics of the defendant which would lower his self control  – because the second test disappears if you do.
If the two highest courts in the land cannot agree what chance have the rest of us?
The Court of Appeal generally followed the Privy Council, somewhat oddly in terms of the rules of precedent, but trial judges by and large thought that they had to follow the House of Lords because, if they followed the rule in Holley there was less chance of acquittal and they might be appealed.
We are looking at gender, in this talk. So let us turn to the 20 to 30 women who kill their partners every year as opposed to the approximately 150 men who do.
Typically, these killings are by battered woman, like Kiranjit and Emma. They do not kill from anger and do not fit the sudden and temporary loss of self-control model which is the defence of provocation. Almost all such killings take place when she is under attack. They are almost always against a background of oppressive conduct and violence.
She flees into the kitchen. He comes after her. She grabs a knife from a work-surfaceand stabs him once as he approaches. She is terrified, worn down, sick of being hurt, desperate but there is no partial defence of killing out of fear or despair that accommodates battered women in the way that provocation and killing out of anger accommodates men.
One might think that having to run into the kitchen and seize a knife under attack would be self-defence. That is a complete defence. If a person kills when acting only in reasonable self defence she is not guilty at all. But it must be reasonable self-defence. It must be proportionate. If a woman is attacked only with fists or even a boot, though the man is stronger, violent and scary, if she takes a weapon and kills him, the jury will not acquit her on the basis of self-defence. It looks excessive. It is disproportionate. Whilst using proportionate self defence will give a complete defence, killing in excessive or disproportionate self-defence gives no defence, partial or whole. Killing in excessive self defence leads to a conviction for murder.
If I overreact to provocation, as a man may do, it is manslaughter. If I overreact to being attacked, as a woman may do, it is murder.
There is an important difference between the sentences given for murder and for manslaughter. Murder receives a mandatory life sentence, with a starting point of at least 15 years, as established in the Criminal Justice Act 2003. Although manslaughter can attract a discretionary life sentence, sentences in practice are generally of determinate length and, for domestic homicides, will usually be four to eight years.
Under current licence arrangements, the defendant will serve two thirds of such a sentence, so the difference in time actually served can be very large indeed. That puts great weight on the partial defences, because the consequences can be so significant.
I said I would describe how battered women in this situation are defended. It is on two bases. First, the defence tries arguing that the act was proportionate self-defence. If that fails, she falls back on the claim that the attack provoked her into a sudden and temporary loss of self-control that would have caused a reasonable person to do as she did. But proportionality in self-defence requires measurement and deliberation. The defence of provocation requires a sudden and temporary loss of self-control and a lashing out –acting disproportionately. So the two defences are inconsistent.
Juries can see that this is not proportionate self defence and neither has the woman killed during an angry sudden and temporary loss of self control – but in fear and despair at another beating. Both defences sometimes fail.
And thus did violent, jealous, possessive men who lose their self-control and kill their partners get away with murder and battered women who may have suffered years of being victimised get convicted of it.
In the nineties, when this issue came to a head nothing much was happening in Parliament about domestic violence.  But there were campaigners outside Parliament. They were grounded in the groups like Womens Aid which did and do provide refuge accommodation for women who have to leave home through DV and started to appreciate the injustice of this issue. An excellent campaigning group called Justice for Women emerged to take up these specific cases and with the help of women lawyers on the team, each of the cases of Kiranjit Ahluwalia and Emma Humphreys were taken to the Court of Appeal.
The Court of Appeal is an Honorary Woman in this cause. The Court did a good deal to help women who they thought were being unfairly convicted,  even though they were tied to the confines of the common law and the Homicide Act 1957 (which amplified the defence of  provocation into the structure I have described).
A most interesting issue is that the law did not allow for the way women respond. It was grounded in the history of men’s responses. Ninety per cent of violent crime is committed by men and it is therefore not surprising that the jurisprudence is based on the way they behave but it can and was producing injustice – you may think so and the Court of Appeal Criminal Division certainly did.
In Humphreys, the Court considered the issue of cumulative provocation.
Historically, a sudden and temporary loss of self control has implied an immediate, hot blooded response to things said or done. Commonsense suggests that what made Emma Humphreys crack (if crack she did) was the cumulative effect of Trevor’s long-term uncaring treatment of her, the humiliating threat of a gang-bang, his intention to use her for sex even though she was injured and his mockery of her desperate attempt to slash her wrists. Those were the “last straws’ but human nature will have built up resentment and anger from what went before. Fairness requires that the “last straw” should be judged, as to whether it would have made a reasonable person lose their self control, in the context of all that had gone before, since it was all part of the “things said and done” that may have provoked the sudden and temporary loss of self control that followed the “last straw” Since the trial judge had confined the jury’s consideration of “things said and done” to the threat of him having sex with her, the Court of Appeal said that his direction was wrong and it allowed her appeal.
Additionally, there was a psychiatric report, from the trial, which said that Emma Humphreys was abnormally immature and attention seeking with a tendency to cut her wrists. These were characteristics which were likely to reduce her level of self-control. In those just pre- Morgan James Smith days, Court of Appeal decisions varied as to which characteristics should or should not be taken into account when considering whether a reasonable woman would have lost her self-control. At the time of the trial, such characteristics were not considered relevant. The Court of Appeal said that, in this case, those characteristics should have been attributed to the reasonable woman, and hence the Judge had further erred in not doing so.
“Cumulative provocation” is not specific to battered women defendants. It became part of the general law in this area, the same for everyone. However it was the circumstances of such women, trapped in long-term oppression, and  likely to produce cumulative provocation which drew the thinking along.
In the appeal of Kiranjit Ahluwalia the Court considered the issue of a “slow burn” reaction to provocation.
It was clear that the requirement for a “sudden and temporary loss of self control” presented the problem that Ahluwalia had not killed her husband immediately after the iron incident but only after he had gone to sleep. He would have fought off an attack and probably hurt her more if he had been awake. The Court said that the defence did not require that the sudden and temporary loss of self control must immediately follow the provocation. Rather, the requirement was that the killing followed immediately on the sudden and temporary loss of self control. Thus if she reacted by losing her self control some time after having the injury from the iron, so long as she was still suffering from that loss of control when she killed him, the defence could be made out. There was likely to be a tight limit on the time between the provocation and the loss of control which led to the killing though. The Court said
“The longer the evidence of delay and the stronger the evidence of deliberation on the part of the defendant the more likely it will be that the prosecution will negative provocation”
But the defence of provocation should have been left for the jury to consider, by the trial judge and she was freed. (There were psychiatric issues in this case too)
As with cumulative provocation, this extension of the defence was not specific to battered women but the Court, at least partially, seemed to accept the possibility that women, who had been subject to long term cruelty, might react by a “slow burn” leading to a loss of self control. This is an approach that has not been deeply developed. Clearly the Court was sympathetic to the plight of a woman whose immediate loss of self control would have simply brought more domestic violence down upon her. The converse is frequently pointed to in domestic violence situations. That is that men who kill in domestic violence may be readier to lose their self control when their victim is –say – their smaller female partner, than if they have been provoked by the presence of – say – a large, strong police officer. The Court may perhaps have ruminated in this territory.
Although there was progress in the Court of Appeal there was little recognition or understanding of this issue, by trial judiciary. I think I defended about half of the women who were charged in this way, for a few years, and did their appeals where necessary.
Trial Judges would greet me by saying “This is not a battered woman case.”
Because she could have left,
Because she hit him back once in a hundred times thereby moving it into the stormy marriage/ six of one and half a dozen of the other category
Not a battered woman case if she had not immediately told police of all the abuse. Actually it is very hard for victims to talk immediately to a strange police officer about violence and, in particular, about sexual abuse which is almost always present.
So we were getting better law on appeal because the Court of Appeal was redefining the defence, stretching the law and trial judges were unwilling to stretch any further by applying those precedents in slightly different cases.
However, that meant that Diana Butler from Yorkshire, Josephine Smith from East Anglia and Donna Tinker from Gateshead and ten or so more women a year were convicted of murder. Even if they subsequently had their convictions reduced to manslaughter it was often some time later after serving part of a life sentence and being branded a murderer to themselves, the authorities and to their children.
And there were innumerable highly regarded academics who, by now wrote that the law tended to favour the reactions of men and exclude the experiences of women in particular those who were abused. (Bandali 1995, Jeremy Horder 1993, Aileen McColgan (2000) O Donovan (1991) Celia Wells (1994) Susan Edwards (1996)
So this was not just a campaign; it was a jurisprudential wrong.
In the 1997 election, for the first time more than one hundred women were elected to Parliament. They set about campaigning for measures to tackle domestic violence and established good lobbying routes and were effective in getting White Papers then Action Plans and funding. This specific issue of provocation and its differential impact, in particular on women suffering from domestic violence was raised by me in the House of Commons in a number of short adjournment debates, which any backbench MP can request. David Blunkett as Home Secretary responded to the whole field of domestic violence with a report in 2003 called “Safety and Justice”. He proposed to legislate and the Government began to prepare the  Domestic Violence, Crime and Victims Bill. “Safety and Justice” included consideration of provocation in domestic homicide and its over- generosity to male anger and its lack of protection for women killing in fear.
Blunkett asked the Law Commission to do a speedy report into the partial defences to murder, with particular regard to domestic violence cases and to report in time for any new law required to go into the Bill. By then the  Domestic Violence, Crime and Victims Bill included provisions making common assault an arrestable offence; making breach of non-molestation order/civil injunction a criminal offence,  so that police would arrest; It allowed criminal courts hearing domestic violence trials to put restraining orders onto perpetrators and changed the law on domestic killing of children.
The Law Commission’s Interim Report “Partial Defence to Murder” 2003 was, thanks to outstanding leadership of its Chair, now Lord Justice Roger Toulson, an excellent report. It was boosted by the secondment of Professor Jeremy Horder, an Oxford academic and author of the seminal work on provocation.
The Report was ready for Xmas 2003. I know because I took it on holiday to the Carribean. There is a photograph of me reading it on a beach. I took it back the chiller climate of Westminster. The Domestic Violence Crime and Victims Bill was published but it contained no change to the law on provocation.
I pressed for it. I drafted an amendment myself and invited the government to accept it. I had another adjournment debate to highlight the point and the Minister answering said: –
“The Government agrees that the current position on provocation is unsustainable”
Hurrah!!! Victory at last! But not so
Unsustainable or not they did not accept my amendment. Provocation continued to be exactly the same for a further 6 years and three months. It was finally abolished, in the Coroners and Justice Act, passed in 2009 but implemented, exactly three weeks ago yesterday, Monday October 4th 2010.
Granted that the Law Commission worked hard to get its provocation proposals ready for the DV Bill 2004 – that is a shame
Granted that the injustices went on – that is a shame and
Since there is always a period of learning and teaching  before new law is understood and made to work properly – the delay is a shame.
I know that the Judicial Studies Board is holding an event this very day to teach the new law to trial judges. At present there isn’t a single direction on their website suggesting that they have noticed the abolition of provocation. However they have.
The Law Commission’s Final Report in 2006 did not change its proposals on Partial Defences very much but unlike the Interim Report, it was not confined to the partial defences. It reported on Murder and Manslaughter as a whole, was again a first class report and proposed a tiered system of homicide with:-
Murder 1 – for cases where there is a killing with the intention to kill and which attracts the life sentence.
Murder 2 and Manslaughter on a basis that would need another lecture but do not rush to book –
Because those measures have not been brought in either.
The Government of which I was by then a member, could not get enough support to bring in those changes.
But we do now turn to the changes that the Law Commission’s Interim Report did  bring about and to the abolition of the defence of provocation and ask whether:-
It solved the specific problem that provocation did not accommodate female reactions or the circumstances in which some women find themselves through others’ violence?
And whether it has improved the law of murder and manslaughter overall.
For though lecture is a tale of a gender crusade, the specific injustice must be resolved in a way that adds to the sum of justice overall.
So has this most serious crime of murder, only defined as Ormerod has it “ from a book in the seventeenth century’ with its provocation defence been dragged from the primeval mud and been improved by these changes?
Provocation  – as we have now come to know it – has been murdered
It was abolished and replaced by a new partial defence, set out in sections 54 and 55 of the Coroners and Justice Act 2009. The defence is called  – loss of control
The defence has two parts and I am summarising it here and you need to read it in full.
I have worked on this part of my talk with the good analysis by Anna Carline from Liverpool John Moores University at (2009) 2Web JCLI and the Hansard Report of the House of Commons Committee Stage scrutiny of this part of the Bill.
The first part of this new partial defence to murder – Loss of self control
Section 54 says that where somebody kills they are not to be convicted of murder (but only of manslaughter) if the killing resulted from D‘s (the Defendant’s) loss of self-control, which had a “qualifying trigger” and 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 similar way.
“the circumstances” means everything except what is only relevant is to D’s capacity for self-restraint
The defence can only be used if the judge thinks sufficient evidence of it has been raised so that a jury properly directed could convict
A “ qualifying trigger” (for the loss of self control) may be either where:
S55(3) the loss of self control was attributable to D’s fear of serious violence from V ( the victim) against D or another identifiable person
S55(4) the loss of self control was attributable to a thing or things done or said or both which
1.    Constituted circumstances of an extremely grave character and
2.    Caused D to have a justifiable sense of being seriously wronged
Or both (3) and (4)
The Law Commission wanted still to call this provocation but the government wanted to be rid of that title and all the old case law and the problems that went with it too
The new defence is far narrower.
1.    In provocation – any things done or said – right, wrong, lawful or innocent could be provocation, as I said when I set out how men have sometimes raised the defence in reliance on trivia
NOW – the thing said or done has to be of an extremely grave character in order to be a “qualifying trigger” on which to ground the defence of loss of control
1.    Because the law required the jury, in a provocation case, to look at everything said and done the defence would be left for a jury to consider however weakly it was raised,
EVEN if the defendant did not want to rely on it and
EVEN if a jury finding that a reasonable person would have done as the defendant did, would have been perverse.
NOW S 54(6) makes clear that the loss of control defence has to be so sufficiently raised      in evidence as to satisfy the trial judge that a jury properly directed could acquit.
1.    the requirement that D should have a “justifiable sense of being seriously wronged” is  new. As I have just re-iterated provocation could consist of anything said or done that made him lose his self control, even if nobody could have thought that what was said or done wronged him – so long as it infuriated him.
2.    This is closely connected with the need for the sense of being seriously wronged to be “justifiable” which introduces an objective element The question is not just did he feel seriously wronged but, if he did, is that feeling, in the jury’s view, justifiable.
And S 54(1(c) yet further narrows the defence.  The second test in provocation, as reduced by the case of Morgan James Smith to would a reasonable man, with all the characteristics of the defendant do as the defendant did – is abolished. It is replaced by the far stricter qualification of whether a person of the same age and sex as him – with a normal degree of tolerance and self restraint – might have reacted in the same way.  That means, in effect, that everybody, of the same sex and age is deemed/required to have a “normal” degree of tolerance and self restraint and a loss of self control contributed to by bad temper, jealousy or anything which the jury think lowered his self-restraint below that standard will take him outside the defence.
The bar is set very high for this defence.
The most controversial aspect of the Act is the exclusion of one particular circumstance from ever being a “qualifying trigger”
S 55(6)c says that in determining 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 if she says she is going to live with her personal trainer and he loses his self control and kills her, EVEN if a jury thought this constituted circumstances of an extremely grave nature AND that he was justifiable in a sense of being seriously wronged by it, he would NOT have the defence of loss of self control and would be convicted of murder.
Loss of control cannot be his defence because it does not have a “qualifying trigger” but has a trigger which is specifically disqualified.
So if you see someone you love knocked over by a bus and kill the driver; see your child seriously assaulted and kill the perpetrator, you can at least run the defence of loss of control, but if you find your partner in bed with someone else and kill him/her the defence is out.
This is intended to send a clear message that we are in a new era. Killing for sexual infidelity cannot be even partially tolerated in modern society. It is a normative message that violent male possessiveness is a bad quality and not an acceptable or understandable one.
However, this provision is difficult for a number of reasons of which these are just random examples.
Firstly, what is “sexual infidelity” To whom does someone owe a duty of fidelity?
If parties are divorced but occasionally have sex is one of them having sex with another sexual infidelity to the first or not?
Does it mean that if D finds someone having sex with her child and kills him, the defence can apply but if the someone is her partner it cannot? Since, albeit raping a child is more than sexual infidelity, it would certainly be sexual infidelity.
The second most controversial part of the Act and where the Government legislated in a way different from that proposed by the Law Commission is in retaining loss of self control as part of this new partial defence, at all.
The Law Commission wanted there to be no state of mind or intention specified before the defence could be raised. If extremely grave things said or done gave a justifiable sense of being seriously wronged, those circumstances were the defence.
The government was concerned that if that were to be the position, revenge killings or cold blooded killings could be partially excused in circumstances where the facts were thus but the impact on him was not, in fact, the reason for the killing.
The Law Commission wanted to protect the Ahluwalia- type person who killed after her husband had gone to sleep and may find it difficult to satisfy a jury that there was a late loss of self control. The government thought that since the loss of control, in the new defence, does not have to come from anger but can come from fear and desperation, such a person could come within the defence and Section 54 (2) provides that for purposes of the defence it does not matter whether or not the loss of self control was sudden or not sudden at all.
Jeremy Horder told the House of Commons Bill Committee that loss of control was intended to be a broad concept. It did not require going berserk, only that the defendant’s normal judgement and composure were overpowered by grave things said and done.
This is one key reason why the Government did not want to keep the name “provocation” but to abolish it. It was to rid the law of the stereotype of a “loss of self control” as an angry reaction, “going berserk” as Jeremy Horder put it. That is how the concept started but now, in times of subtler understanding and with a female perspective in mind too, it should be understood differently.
This defence is expected only to apply in what the then government described as   “exceptional circumstances”
The second part of the partial defence is new and is also controversial.
As I set out above section 55 provides that a killing is not murder (only manslaughter) if it was done during a loss of self control attributable to (the qualifying trigger) of fear of serious violence from V(the Victim) against D or another identified person.
The controversy comes from the perception that this may change the rule, that I set out when describing the way in which battered women who kill were defended under the old law, i.e.,that a killing in excessive self defence is murder, not manslaughter.
A second concern is that a jury may muddle the measuring of proportionality in self defence which, the law says, in the heat of the moment cannot be balanced to a nicety, with the question of whether the person defending themselves lost control and went too far, that is acted disproportionately.
The process should work as follows;
Where there is a threat of serious violence from V to D or to another identified person, and D kills V :-
Did he do it in self defence?
If self-defence is raised it has to be disproved by the Crown. They may do so by showing that the threat was not imminent so as to justify self defence. If that is so and there was time to run away or go to the police it will not be self – defence.
However, it may fall within the new defence. All that it requires is a loss of self control at the time of the killing, which must have come from the threat of violence but there is no express link in time. This would help the Ahluwalia case. She said that her husband had threatened her and would do her more violence when he woke up and so – the defence would now run – she lost self control when she contemplated the violence soon to come and, fearing it, killed him
More frequently the Crown have to disprove self defence by showing that the force used was excessive and not proportionate.
The principle in   R v Palmer 1971 AC 814 now expressed in the  Criminal Justice and Immigration Act 2008 recognises that a person cannot weigh to a nicety the exact measure of  necessary defensive action.
“If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary it would be the most potent evidence that only reasonable defensive action had been taken.”
There is therefore some leeway in the test of proportionality, based on an understanding of the pressure someone is under if they are attacked.
The right approach is to look at the self defence and see whether it is proportionate, taking into account the Palmer test.  If the force is, on that definition, proportionate, then D is not Guilty. Self-defence is, of course, lawful and so there is no crime. It is a complete defence.
If the forced used is disproportionate, even taking into account the leeway offered by Palmer, the next question is whether that excess may be because of a loss of self control by D, triggered by fear of serious violence. If so, he has the new partial defence and should only be convicted of manslaughter.
If the jury thinks that the disproportionality of D’s response was not caused by a loss of self control due to fear of serious violence, they will convict him of murder.
This defence should protect battered women who – in the classic mould – lash out once with a knife having fled into the kitchen in fear of more violence from the perpetrator, even though he is only using his fists.
At present, I feel comfortable with this structure. A killing in which a person who is attacked goes too far in self defence because he loses his composure through fear ought to be manslaughter and not murder, since it is the attacker who causes the fear that brings the loss of control. The requirement of loss of self control remains an important limitation.
However, it is too early to evaluate these changes but they hold promise.
This is a story of how the judiciary can be made to see systemic injustice and will change the  law against it, if they can.
It is an important story of legislative change brought about by campaigning inside and outside Parliament.
It also shows the importance of a mixed democracy in which representatives of all kinds of people are in power. It took women to see that their reactions were not those which were regarded as forgivable by a jurisprudence used to dealing with men. And the issue was made sharper because in the cases we have examined, those unforgivable reactions were brought about by the violence of men. It took women to argue this case in Parliament, but once it was appreciated and made clear, men were just as keen to bring about change as women were.
It is easy to make it look like a fight between men and women as to who should be exculpated for killing who. But it is just the story of a fight against injustice which in this case  happened to be gendered.