Sexual Infidelity And Loss Of Control: R V Clinton (Jon-Jacques) [2012] EWCA Crim 2

Article by Adam Bond, pupil at 6 Kings Bench Walk

Introduction

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) [2012] 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, and Caused the defendant to have a justifiable sense of being seriously wronged. 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).

   Case Summary

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...