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

Is working for the Armed Forces really indistinguishable from working in a supermarket?

The Supreme Court has set a dangerous precedent. The deployment of troops into Afghanistan was purely voluntary, the first Gulf war however presented necessitous circumstances, to stop and repulse a naked aggression. Is the Supreme Court seriously suggesting that we should have waited five years to develop the necessary equipment, during which the opposition would have been developing their own countermeasures?

War, by definition is uncertain and therefore regularly fought imperfect equipment. Such rulings put a core area of sovereignty at risk, however given the way politicians have usurped their power in such matters over the last decade this ruling was inevitable. If we are to ask people to put their lives on the line we at least should ensure to a reasonable level that they can defend and care for themselves whilst they are doing it.

Following from this judgement perhaps now, the police should be permanently armed.

Once again our unelected judges show themselves to be a joke. In any event if anyone should be sued over deploying troops with defective equipment it should be War Criminal Tony Blair? Right?

Is force feeding always illegal ?

We have a short Note on this issue in the new edition of International Criminal Law casebook by Paust, Bassiouni.

There should at least be provision of medical treatment for detainees who make the choice to die so that their death does not involve needless suffering.

If the US chooses to intervene in such a decision, the US should not engage in torture or cruel, inhuman or degrading treatment because such are absolutely unlawful under the laws of war, human rights law, and the CAT. But the critical criterion with respect to “torture” seems to be the non-self-applicative word “severe.” It appears that one criterion accepted by international tribunals regarding cruel or inhuman treatment is the non-self-applicative word “serious.” Of course, one wants to look at the trends in decision for guidance with respect to particular tactics or treatment.

If they want to starve themselves to death, they should be allowed to do so. Is this not a Human Right that should never be abridged ? As the anti-gun and "pro-life crowds make clear, government is supposed to force people that don't want to live to do so and it is supposed to deny them the means of killing themselves. So, the one thing these guys can do is refuse to eat. And what is the response? To torture them with forced eeding via nasal tube. Water boarding would have probably been less traumatic.