Article by Adam Bond, pupil at 6 Kings Bench Walk
1. On 25th October 2011, the Court of Appeal (Lord Chief Justice, Henriques J., Gloster J.) issued its judgment in R v Clinton (Jon-Jacques)  EWCA Crim 2. Under consideration, inter alia, was the application of the statutory provisions for the partial defence to murder of loss of self-control, formerly the common law defence of provocation, contained in sections 54 and 55 of the Coroners and Justice Act 2009 ("the 2009 Act").
2. The defence of loss of control is placed entirely on a statutory footing by the 2009 Act, the previous authorities on provocation now being irrelevant. The defence has three elements: (i) causal nexus between the killing and loss of control, (ii) a 'qualifying trigger' (further defined by section 55 of the Act) and (iii) a comparison of the defendant's reaction to the hypothetical reaction of another who shares some of his/her characteristics and circumstances, section 54(1) of the 2009 Act.
3. Clinton is primarily concerned with the application of the "qualifying trigger" provisions. Section 55(4) provides "Things said or done (or both) by another may be a "qualifying trigger" where they:
- Constituted circumstances of an extremely grave character,
- Caused the defendant to have a justifiable sense of being
4. In considering "things said or done" for the purposes of section 55(4) "the fact that a thing done or said consisted sexual infidelity is to be disregarded", section 55(6)(c).
5. The appellant was convicted at the Crown Court in Reading for the murder of his wife. His evidence was that prior to the fatal attack his wife explained that she had sex with a number of men during a trial separation in their marriage. Judge Smith directed herself that this evidence was "things said or done constituting sexual infidelity" and therefore to be disregarded for the purposes the partial defence. There being no other 'triggers' for the loss of self-control the defence was not considered by the jury. The correctness of this decision formed the basis of the appeal.
6. Several problems faced the Court: (i) the definition of "sexual infidelity", (ii) how a "thing said" can itself "constitute" sexual infidelity and (iii) the extent of the prohibition where sexual infidelity is relevant context to other potential triggers. The Court of Appeal made reference to Hansard, however, the parliamentary debates were of scant guidance in the interpretation of this "formidably difficult provision".
7. The Court, faced with the fundamental problem that sexual infidelity is not defined in the statute or clarified in Parliamentary debate, itself avoided defining the term(s) while highlighting this latent difficulty [para.19]. The Court stopped short of adopting the submission of counsel that infidelity was the breach of mutual understanding that is to be inferred or expressly found within the relationship. Rather, the greatest elucidation of infidelity is that it "appears to involve a relationship between the two people to which one party may be unfaithful" [para.17]. As the relationship here was marriage the Court was not required to consider what types or 'seriousness' of relationship give rise to a duty of sexual fidelity and on what basis, subjective or objective, this belief in a duty of sexual fidelity is assessed.
8. As to 'sexual' the Court recognised that whereas it is straightforward for an act to be sexual, "things said" poses far greater difficulty. The Court drew on the example of the words "I love you" but in its discussion refrained from determining if this is "sexual" for the purposes of the 2009 Act. However, it is clear that words admitting or detailing sexual acts will be "sexual" things said. Therefore an individual admitting a sexual affair will have said a "sexual" thing whereas the position remains uncertain for an emotional affair (such as "I love another").
9. Notwithstanding the Court's avoidance of fully defining "sexual" or "infidelity" it held that admissions of a sexual affair in the context of marriage, or reports of such by third parties, were things said which "constituted" sexual infidelity. The truthfulness of these admissions or reports is irrelevant [para.26]. The difference between things said "constituting" sexual infidelity, such as admission and reports, and words falling short of 'constituting' such infidelity is the context, namely; the relationship of the parties, and the person by whom and to whom the circumstances in which the words are spoken [para.25].
10. The Court was alive to potential injustices resulting from the application of the exclusionary rule to unrealistically compartmentalise sexual infidelity so as to remove evidence before the jury that is integral to the facts as a whole. Therefore it is only where sexual infidelity is the "only potential trigger" that the evidence is to be disregarded. However, where sexual infidelity "is integral to and forms an essential part of the context" in which another trigger properly falls to be considered the exclusionary rule does not operate. The Court drew on the example of a wife returning to find her husband raping her sister. The sexual conduct constitutes sexual infidelity, excluded as a trigger, and rape, which is a separate potential trigger. The Court concluded that so long as the sexual infidelity is not the exclusive basis for the loss of control it is relevant context to the evaluation of other potential triggers.
11. Further, in considering whether a person in the circumstances of the defendant would have reacted in the same or a similar way (section 54(1)(c)) sexual infidelity will be a relevant circumstance [para.37].
12. Both "sexual" and "infidelity" are difficult terms requiring definition or exposition for the proper understanding of the statutory defence. The Court was not required to differentiate between sexual infidelity and what might be more properly considered as 'emotional infidelity' (the 'I love you' example) as this was not in issue. The definition of 'sexual' may be easier to address than 'infidelity' as criminal courts are well versed in dealing with sexual offences. Section 78 of the Sexual Offences Act 2003 defines "sexual", for the purposes of that Act, applying an objective standard taking into account the nature, purposes and circumstances of the act. This definition is concerned with physical acts, namely "penetration, touching or any other activity", therefore its adoption would limit the scope of the exclusionary rule for loss of self-control.
13. This definition would accord with the Court's finding that an admission of an (physical) affair constitutes "sexual" infidelity. It would, however, result in the words "I love you" not being "sexual" given the words themselves do not relate to any activity that may be assessed as sexual or non-sexual. Applying this interpretation to the example used by the Court, a woman overhearing her partner say "I love you" to another woman (emotional infidelity) would have the defence available, however, actually finding her husband in flagrante (sexual infidelity) and killing without more would prima facie not be a relevant trigger to a loss of self-control.
14. It is perhaps a trite point that "sexual" infidelity is almost inexorably bound up with "emotional" infidelity (although the reverse need not necessarily be true). The Court recognised that the loss of self-control often stems not from the mere fact of sexual infidelity, rather 'the betrayal and heartbreak, and crushed dreams' it represents. Again, taking a narrow approach to 'sexual infidelity' it could reasonably be argued that finding a partner in flagrante was not the trigger, rather it was the fact of the betrayal, which would be analogous to the betrayal in the "I love another (but have not had any sexual relations with them)" example. As with the Court's example of the woman finding her husband raping her sister sexual conduct can constitute more than simply 'sexual infidelity'.
15. As soon as a notion of emotional infidelity arises, and it might be expected this would be common, then this is another potential trigger for which sexual infidelity, on the reasoning of Clinton may be relevant context. Indeed a literal reading of the provision, as suggested by Omerod, is that it is only the fact of the thing said or done constituting sexual infidelity, not the effect of such things said or done, which is to be disregarded. Therefore, the exclusionary provision could be restricted to all but a narrow seam of cases where the loss of self-control was solely a result of the act or things said constituting sexual infidelity, not the effects and emotional repercussion thereof.
16. The judgment in Clinton is an effort to make sense of problematic legislation. While practitioners will glean some guidance from Clinton the scope of "sexual infidelity" remains wholly unclear and is likely to require further attention by the Court of Appeal. One approach is to narrowly define 'sexual' and continue to allow 'sexual infidelity' to be considered as relevant context where another potential trigger is present; such an approach may welcomingly restrict the application of section 55(6)(c) within practicable bounds.
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