Friday 24 January 2014

R v Clinton [2012] EWCA Crim 2 by Katharine Matheson

This is the first Court of Appeal decision on the new defence of loss of control.

The subject of the conjoined appeals was s55(6)(c), which states 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. Lord Judge stated that this would be the case only where the sexual infidelity was the only possible qualifying trigger. If there was another factor which could be a qualifying trigger, the sexual infidelity could be considered alongside that other factor. He noted that in most cases where there was sexual infidelity it would be easy to find another factor which could be a qualifying trigger. Lord Judge also said that when answering the question in s54(1)(c) – might a person of D‟s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, have reacted in the same or in a similar way to D? – the jury should not exclude any sexual infidelity. The effect of this judgement is largely to nullify s55(6)(c).

The case is also helpful in that it gives some guidance as to the tests for the qualifying triggers. Lord Judge stated that the tests are objective and noted that the requirements „have raised the bar‟ in contrast to the former law of provocation. He referred to the adverbs and adjectives of „serious‟, „extremely‟ and „seriously‟ in s55(3) and s55(4) and noted that Parliament had intended this to be a strict test. It is worth reading this case, not only to increase your understanding of the defence of loss of control, but because it is an exercise in statutory interpretation. 

Katharine Matheson
Senior Lecturer, GDL Induction and Skills Module Leader, LLB ECP and Skills Module Leader
BPP Law School
137 STAMFORD STREET
LONDON 
SE1 9NN
KatharineMatheson@bpp.com

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