The Coroners and Justice Act-protecting 'battered wives'?

The Coroners and Justice Act 2009 received the Royal Assent on only the 12th November this year, and so the full ramifications of the Act are obviously not yet clear. But I think that now is as good a time as any to take an analytical look at the provisions of the Act, particularly in relation to the law on provocation. And I’m not just saying that because I just attended a lecture on the subject by the God of Criminal Law, Andrew Ashworth.

The Coroners and Justice Act 2009 reforms several elements of the law on homicide (before you get ahead of yourself, homicide isn’t some fancy synonym of murder. It simply means one human being killing another), mostly in the context of the partial defences to murder. Under the Homicide Act 1957, there were two main such defences: diminished responsibility and provocation. Now, diminished responsibility has been altered somewhat by the Act, and provocation has been abolished altogether and replaced with a new defence of loss of control. In subsequent blog posts I will delve into the other provisions of this Act, but today I want to talk about loss of control.

What is immediately striking about this defence is that it clearly emphasises the conduct of the defendant rather than the conduct of the provocative act; the change in wording may not reflect such a shift in the law, but linguistically it is preferable to an emphasis on the provocative act (now called the ‘qualifying trigger’)

Provocation is probably best known in the public psyche because of cases like that of Kiranjit Ahluwalia, who you may remember (I say this as if I remember…) set fire to her husband in 1989. She had suffered years of physical and mental abuse at the hands of her husband, including marital rape (As an aside, that was not a crime until 1991). One night he was violent towards her, and so when he was sleeping she poured petrol over him and set him alight. He died some days later, and she was charged with his murder.

Her original trial was a farce; she spoke very little English and her defence counsel didn’t try very hard in pushing through on a provocation defence. You see, under the old law provocation only worked if there was a ‘sudden and temporary loss of self-control’. The longer the time-gap between the provocative act and the offence, the less likely it would be that a defence of provocation would work. It has been argued on many occasions that such a provision (an entirely judge-made provision, incidentally, which stems from pre-Homicide Act law and yet was confirmed as applicable to it) is inherently sexist, as it does not afford adequate protection to women in abusive relationships who may lose their self-control but will not react immediately but rather wait for their husband to go to sleep or lie down etc.

Under this new Act, things have changed. s 54 (2) of the Act specifically states that the loss of self-control does not have to be sudden. Furthermore, s 55 (3) states that the qualifying trigger which sparks off the loss of control can be fear of death or serious violence. This is a great victory for women in abusive relationships who lose their control and kill their husbands, only to not be afforded the proper protection of the law. This defence in no way justifies the conduct of the defendant; it merely offers them an excuse. A successful loss of control plea will reduce the offence to one of manslaughter, which gives the judge more flexibility in sentencing depending on the circumstances of the case.

However, one element of the provisions is slightly worrying. s 54 (4) explicitly disapplies the defence where D acted in a considered desire for revenge. While this is a logical conclusion, it somewhat impinges on the welcome broadening of the law achieved by the other provisions. In many ways, killings spurred on by a loss of control are all fuelled by a desire for revenge: the defendant wants to get back at the victim for being wronged. The key word here is ‘considered’. This implies an element of planning, but it is not defined in the statute. From a ‘battered wives’ viewpoint, it is unclear what the threshold for a ‘considered’ act of revenge would be. Was Ahluwalia’s conduct ‘considered’? After all, she waited for her husband to go to sleep. What about the wife who goes into the kitchen, takes a knife, and then sharpens it, before killing her husband. This is revenge, but is it ‘considered’? At this early stage, it is unclear, but I for one hope that the judiciary clarify this term in favour of protecting those in abusive relationships rather than enforcing a return to androcentric provocation.