Vera Baird DBE KC

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

The Infidelity defence to murder

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.