Clinton, R. v

The partial defence of loss of control under sections 54 and 55 of the Coroners and Justice Act 2009 is self-contained. Each statutory component must be supported by sufficient evidence before it is left to the jury.

Sexual infidelity cannot, by itself, be a qualifying trigger. Yet, where an otherwise permissible trigger is genuinely in issue, evidence of sexual infidelity may be considered if it is integral to the contextual evaluation of whether the statutory requirements are met. It remains relevant to the third component, which considers how a person with normal tolerance and self-restraint might have reacted in the defendant’s circumstances.

The trial judge must leave the defence only where a properly directed jury could reasonably conclude that it might apply.

Three defendants appealed convictions for murdering their wives. Each relied, or sought to rely, on the new partial defence of loss of control under the Coroners and Justice Act 2009.

In Clinton’s case, the judge withdrew loss of control from the jury because the alleged trigger included his wife’s sexual infidelity. In Parker’s case, the jury rejected the defence; he also challenged the admission and directions concerning background evidence. In Evans’s case, the jury rejected the defence and he challenged the direction on a considered desire for revenge.

The common issues concerned the meaning of sexual infidelity as an excluded qualifying trigger, the judge’s evidential gatekeeping role, and the statutory language governing revenge.

1. Clinton’s appeal was allowed and a retrial ordered. The judge had correctly applied the construction then advanced, but erred by treating sexual infidelity as incapable of forming part of the context of another permissible qualifying trigger. The wife’s alleged taunts, her comments about the appellant’s suicide searches, and matters concerning the children had to be assessed cohesively with the evidence of infidelity. A jury could reasonably conclude that the loss of control defence might apply.

2. Sections 54 and 55 of the Coroners and Justice Act 2009 create a self-contained partial defence. The defendant must show sufficient evidence of: actual loss of self-control; a qualifying trigger; and a reaction which a person of the defendant’s age and sex, with normal tolerance and self-restraint, might have made. The prosecution then bears the burden of disproving the defence.

3. Under section 55(6)(c), sexual infidelity alone must be disregarded as a qualifying trigger. But the statutory exclusion is not a blanket exclusion from the loss-of-control inquiry. Where an admissible trigger under section 55(3) or (4) is present, sexual infidelity may be considered when it is integral to the factual context needed to evaluate that trigger. It may also be considered under section 54(1)(c), subject to section 54(3).

4. The trial judge must withdraw the defence where no properly directed jury could reasonably conclude that it might apply. This statutory ruling does not amount to an impermissible direction of conviction.

5. Parker’s and Evans’s appeals were dismissed. Parker’s directions, read as a whole, correctly preserved the prosecution burden and caused no unfairness. The admitted relationship evidence was properly received. Evans’s jury was accurately directed that a considered, deliberate decision to exact retribution is inconsistent with loss of self-control; no reformulation of the clear statutory language was required.

• Court of Appeal (Criminal Division) — Clinton’s appeal against conviction was allowed and a new trial ordered: [2012] EWCA Crim 2. Parker’s appeal against conviction, and his application for leave to appeal against sentence, were dismissed. Evans’s appeal against conviction was dismissed.

• Crown Court — Clinton was convicted of murder and arson at Reading Crown Court before HH Judge Smith. Parker was convicted of murder at Hull Crown Court before HH Judge Mettyear. Evans was convicted of murder at Swansea Crown Court before Mr Justice Lloyd Jones.