Academic journal article Nottingham Law Journal

Caging the Green-Eyed Monster-Restrictions on the Use of Sexual Infidelity as a Defence to Murder

Academic journal article Nottingham Law Journal

Caging the Green-Eyed Monster-Restrictions on the Use of Sexual Infidelity as a Defence to Murder

Article excerpt

Regina v Clinton; Regina v Parker; Regina v Evans [2012] EWCA Crim 2 (Lord Judge, LCJ, Henriques and Gloster DBE, LLJ)


The circumstances in which an individual can claim a "loss of control" so as to mitigate their culpability when charged with an offence of murder have long been controversial. The partial defence of provocation had caused the development of a mass of contradictory case law. Parliament has tried to introduce some certainty through the introduction of the defence of "loss of control" as expressed in sections 54 and 55 of the Coroners and Justice Act 2009. This has replaced the defence of provocation for offences committed after 4 October 2010. Under the new legislation: Where a person ("D") kills or is party to the killing of another ("V"), D is not to be convicted of murder if

(a) D's acts and omissions in doing or being a party to the killing resulted from D's loss of self control,

(b) The loss of control had a qualifying trigger, and

(c) A person of D's sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in a similar way to D. (1)

In a recent judgement, the Court of Appeal has given its first interpretation of some of the more difficult provisions of this act. This was a conjoined appeal and in two cases (Parker and Evans) the appeal was focused on the adequacy of the judge's directions to the jury in cases where the judge had permitted the defence to be put before the jury. The appeals in these cases were rejected. However, in the case of Clinton the Court of Appeal was required to give a more detailed consideration of the circumstances in which this defence could be relied upon.


The appellant had lived with the deceased (his wife) for 16 years. They had married in 2001 and had two children of school age. Two weeks prior to her death Mrs Clinton had left the family home by way of a trial separation. There was evidence that during this period the appellant had been researching ways to commit suicide. He had also stolen Mrs Clinton's car in what appeared to be an attempt to make her reconcile with him. The appellant had begun to suspect that Mrs Clinton had been having an affair. On the morning of the 15th of November he discovered Facebook entries and explicit images which confirmed these suspicions. As a result of this the appellant took Codeine and drunk a quantity of Brandy. Mrs Clinton returned to the family home at 14:00 and was confronted by the appellant. His case was, that on being presented with evidence, she described, in graphic terms, acts of intercourse with five different men. He also stated that she had taunted him about his desire to kill himself, stating amongst other things "you haven't got the fucking bollocks". At this point he grabbed a piece of wood which he used to batter her to death. Photographs of her naked corpse were sent via text to the man with who she had been having an affair. The appellant then attempted to hang himself. Alerted by the texts the police were able to enter the property and resuscitate him.

The trial judge considered this defence in the light of section 55 of the Coroners and Justice Act 2009 which states: "In determining whether a loss of control had a qualifying trigger; ... The fact that a thing done or said constituted sexual infidelity is to be disregarded." (2) The trial judge ruled that not only would the appellant not be able to rely on the infidelity as a qualifying trigger, she would have to direct the jury to ignore the appellant's evidence regarding the comments allegedly made by Mrs Clinton that she had had sex with five other men. As a result of this the only evidence the jury could consider in determining whether there was a qualifying trigger was Mrs Clinton's taunt that he would not have the willpower to commit suicide and a comment that he could not have contact with his children. …

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