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ABSTRACT

Both the courts and the public have struggled with the concept of the part-statutory part-common law
defence of provocation across the UK and Commonwealth, and while the UK have chosen to abolish the
defence and replace it entirely, it remains in Barbados. The aim of this paper is to examine the legal
framework and case law governing the defence of provocation in Barbados along with the new, statutory
defence of loss of control in the UK. Specifically, the focus is on the use of provocation and loss of
control in cases involving sexual infidelity.

Keywords: Provocation, Murder, Manslaughter, Homicide Act 1957, Offences Against the Person Act
1994, Loss of Control, Coroners and Justice Act 2009.

Authors:

Tom Durbin, BSc, LLB, LLM, PgDip BVC, PgCert UTL Lecturer, University of the West Indies, Cave
Hill, Barbados, tom.durbin@cavehill.uwi.edu

Jill St George, LLB, LLM, PgDip BVC, PgCert UTL Lecturer, University of the West Indies, Cave Hill,
Barbados, jill.stgeorge@cavehill.uwi.edu

Headings:

Introduction

The Defence of Provocation

The limbs

Coroners and Justice Act 2009

The case of R v Clinton et al

The Barbados Application

An updated application of the Loss of Control

Conclusion
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Introduction

Courts throughout the Commonwealth have struggled with the defence of provocation over the years.
Questions over the correct application have left Privy Counsellors and Appellate court judges
contradicting each other1 over the requisite limbs of this most important defence. Numerous government
reports2 have assessed the defence, reaching the conclusion, as stated by Elliot & Quinn, that judges
alone could not sure the defects in the defence of provocation and legislation was required3. Further,
Lord Nicholls stated in the 2005 Privy Council case Attorney General for Jersey v Holley:4

In expressing their conclusion above their Lordships are not to be taken as accepting that the present
state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is
flawed to an extent beyond reform by the courts.

As such, in 2009, legislation was passed to abolish the common law defence of provocation in England,
Wales and Northern Ireland and replace it with a statutory definition. The Coroners and Justice Act 2009
sought to rectify previous defects, with Parliament creating a new, codified defence of Loss of Control.
This is, however, consigned to the statute books of England and Wales. The Commonwealth, specifically
in this paper Barbados, are free to legislate as they please, and many have chosen to retain the previous,
part common law part statutory defence of provocation.

One area which presented cause for concern with the defence of provocation is its application in cases
involving sexual infidelity. Where sexual infidelity has been the provoking act causing a defendant to
strike out and kill, many questions have been raised as to the validity of the use of the defence.

The aim of this paper is to assess both the defence of provocation and the new defence of Loss of Control
with regards sexual infidelity, and the potential impact the introduction of the Loss of Control defence
would have should it be implemented in Barbados.

The Defence of Provocation

Provocation is a partial defence to murder, and has been described in the past as a concession to human
frailty.5 It began as a common law defence, however with the passage of time became a mixture of
judge-made law and legislative provision. This remains the case today. The basic rule has been clear
enough since the 17th century6: it is manslaughter, not murder, if the defendant, having been provoked,

1
See the significant change in application of the objective limb in Luc Thiet Thuan v R [1997] AC 131 and Smith (Morgan) v R
[2001] 1 AC 146.
2
Law Commission, Partial Defences to Murder (Law Com No 290, 2004); Law Commission Proposals for the Reform of
Murder, Manslaughter & Infanticide (Law Com No 304, 2006).
3
Elliott & Quinn, Criminal Law (8th edn, Pearson, 2010) 78.
4
Attorney General for Jersey v Holley (Jersey) [2005] UKPC 23, para 3.
5
Ibid.
6
Law Reform Commission of New South Wales Partial Defences to Murder: Provocation and Infanticide (Report 83, 1997).
3

lost his or her self-control and killed in circumstances in which a reasonable person might also have done
so. This seemingly simple formula is frequently subject to both criticism and approval.

The homicide laws in Barbados are modeled on those of the UK, be they a reintroduction of statute or the
application of the common law. Voluntary manslaughter by reason of provocation is no different.
Barbados, a perceived legal leader in the Caribbean, utilises the Offences Against the Person Act 1994
(OAPA) as its governing statute for the defence of provocation. Simply put, the Act introduces an
almost exact replica of the now abolished S3 Homicide Act 1957.

Section 5 of the OAPA states:

Where on a charge of murder, there is evidence on which the jury can find that the accused was
provoked, whether by things done or things said or by both together, to lose his self-control, the question
whether the provocation was enough to make a reasonable man do as he did shall be left to be determined
by the jury; and in determining that question, the jury shall take into account everything both done and
said according the effect which, in their opinion, it would have on a reasonable man.

The definition of the defence has had significant judicial and academic analysis in its current form, with
case law frequently altering the interpretation to be given. This, however, came to a conclusion in the
Privy Council decision of AG Jersey v Holley7. The brief facts of Holley are as follows: The deceased
and the defendant had a violent relationship and, while both heavily intoxicated, the deceased told
defendant she had just had sex with another man. He picked up the axe, intending to leave the flat and
chop some (..) wood, when the deceased said "You haven't got the guts". The defendant lifted the axe and
struck the deceased seven or eight times. The Privy Council judgment focused on the application of the
objective element of the test of provocation, an area which had promoted significant discussion in the
past, and acted to clarify the current position of the defence.

In Griffith v R8 Justices of Appeal Williams, Connell, and Moore, stated with regard provocation in
Barbados the law is now regarded as definitively stated in Holley9.

The limbs

The limbs required for a successful plea under the OAPA Barbados are twofold, subjective and objective.
With common parlance meaning, the subjective element assesses as to whether the defendant actually lost
their self control. The history is clear, any words or action can be adduced as evidence of that loss of
control. The objective element assesses whether or not a reasonable man would have lost their control.

7
Attorney General for Jersey v Holley (n 4).
8
Griffith v The Queen BB [2009] CA 13.
9
Attorney General for Jersey v Holley (n 4).
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The objective test is seen as the safeguard to the application of the defence; it is not sufficient to succeed
on the basis of the defendants belief, feelings and actions alone the objective test must be fulfilled in
addition.

The courts in much of the Caribbean as well as England & Wales have seen a wide range of words and
actions causing that loss of self control, be it acceptable to the reasonable man or not. The judicial
flexibility here is considered paramount, the courts are not to judge on what has been done or said, but
whether or not the control has been lost. It is a subjective test in its entirety.

As an extreme example, In R v Doughty10 the Appellants wife had recently given birth to a baby who
was constantly crying. The appellants wife was recuperating from a complicated cesarean and he was left
in charge. His efforts to keep the baby quiet to no avail. The crying rendered the appellant losing his
control. He pressed down hard and whilst his memory is uncertain, the pressure was the result of the loss
of control. Despite the trial judge stating that provocation cannot be founded on such incidences, In my
judgment the perfectly natural episodes or events of crying and restlessness by a 17-day-old baby does not
constitute evidence of provocation in relation to the first subjective question11. No matter what a jury
member may think, the Court of Appeal disagreed and the conviction was substituted for manslaughter by
reason of provocation.

The Court of Appeal was robust in its statement that these matters, however bizarre at first sight, are to be
left the jury. Lord Justice Stockee stated that matter is, in our view, imposed by Parliament upon the
jury, not upon a judge, and the commonsense of juries can be relied upon not to bring in perverse verdicts
where the facts do not justify the conclusion. Professor David Omerod states that if there is a causal
link between something, such as the baby crying, and the response of D, the jury must be left that
something in considering the objective question.12

In Griffith v R13, the Barbados Court of Appeal accepted the words used to provoke could come by text
message. In Bennett v R14 the DPP accepted a guilty plea of Manslaughter by reason of provocation
because he considered that there was provocation in the deceased's alleged intimation that she wished to
end the relationship.15 It is clear therefore, certainly in Barbados, that the severing of a relationship, even
by text message, which renders the Defendant vexed can be sufficient provocative words or actions.
Infidelity or adultery can apply.

Under the subjective limb, the defence also requires that the loss of control be sudden and temporary. The
defence is no place for premeditated killing or revenge. Devlin J stated in R v Duffy16, Indeed,
circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious

10
R v Doughty [1986] EWCA Crim 1.
11
At letter B, on page 4 the trial judge continued his directions.
12
David Omerod Smith & Hogan Criminal Law (10th edn, Oxford University Press, 2009) 649.
13
Griffith v The Queen (n 8).
14
Bennett v The Queen BB [2005] CA 8.
15
Simmons, CJ at para 6.
16
R v Duffy [1949] ALL ER 932.
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formulation of a desire for revenge means that person has had time to think, to reflect. The courts have
shown the more time spent contemplating the act, the less likely the act was undertaken from a resultant
loss of control.17

Ibrams& Gregory18, Baillie19 and Cocker20 are all authorities outlining Devlins judgment, that time to
think and reflect with negative the defence. Lawton LJ outlines this in Ibrams stating:

They carried out the plan. They were masters of their minds when carrying it out, because they worked
out the details with considerable skill; and in pursuing the plan as they did on the Friday night they were
still masters of their own minds. They were doing what they had planned to do.

The defence has suffered significant criticism under this limb, the tortured husband of a sick wife being
begged to end her misery, the abused woman who seeks help from friends to end her suffering, all fall
foul of Devlins sudden and temporary. And for good reason, as Ormerod questions:

Why should D who loses his temper be in a better position than D who acts out of mercy as in Cocker.
Why should D who has a fiery temper be in a better position than someone who does not lose their temper
easily?21

In Luc ThietThuan v R22 the appellant had his conviction upheld at the Hong Kong Court of Appeal but
was given permission to have his case heard by the Privy Council. The question to be asked was what
factors can be taken into account when claiming one had lost control. Evidential difficulties at first
instance showed the appellant changing his story a police confession was refuted and his new statement
was pure provocation. The victim had left the appellant then taunted him over his sexual inadequacy. The
appellant was, according to his statement, numb after the frenzied attack having lost control. The words
and phrases used were typical in such a case. During the trial, the appellant stated:

She blew her head off and she said that her boyfriend could make her very happy while in bed. Then she
said that that was better than me. And she said that I was so quick that I was just like a newspaper selling
boy.

On appeal to the Privy Council, Lord Goff stated:

17
See R v Ahluwalia [1992] 4 All ER 889 and R v Thornton [1995] EWCA Crim. 6 for much publicised examples of such a
situation.
18
R v Ibrams& Gregory [1981] 74 Cr App R 154.
19
R v Baillie [1995] 2 Cr App R 31.
20
R v Cocker [1989] Crim LR 740.
21
Smith & Hogan Criminal Law (n 12).
22
Luc ThietThuan v R. (Hong Kong) [1996] UKPC 57.
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The autopsy revealed that she had suffered multiple stab and cut wounds. The doctor who conducted the
autopsy was of the opinion that the cause of death was multiple stab wounds to the body, causing injury
to the heart, lungs, liver and kidney. The cut wounds were consistent with defensive wounds suffered
during a struggle. The condition of the face and eyes was consistent with asphyxiation.

The case surrounded the applicability of certain medical evidence being put to the jury to take into
account. The Appellant produced evidence that following an injury which had knocked him unconscious
some time before, he had lost his control several times in response to minor provocation. Medical
evidence showed "some form of an organic brain problem" which affected the appellants self control,
concluding he "was noted to be impaired, especially in the left side of his brain and towards the frontal
areas"23.

What the case did not discuss was the provocative words or actions used by the victim. It is clear,
therefore, that a victim merely stating an individuals inadequacy is sufficient. The jealous or bitter
partner who has either suffered infidelity or adultery can today be lawfully provoked by these actions, or
indeed the words to convey them.

The defence of provocation has received significant media attention, particularly where husbands have
killed wives on the basis of sexual infidelity. On 23rd January 2012, Vera Baird in the UK Guardian
wrote:

Killing a wife for infidelity was classic provocation under the law prior to 2009. The courts were
littered with cases in which men blamed their partner's adultery for making them kill her.

In the case of Morgan James Smith in 1999, Lord Hoffman noted that historically one of the legal
justifications for killing due to losing self-control had been finding a wife in adultery. It was regarded as
"the highest invasion of property".

In 2008 Justice for Women asked a senior judge why he had accepted a plea of guilty to manslaughter
instead of murder, when a man had stabbed his wife in fury.

Because it was classic provocation, he said. She was leaving him for another man. I would have been
practically ordering them [the jury] to give a verdict of manslaughter!24

However is this sufficient in contemporary society? Again, in Smith (Morgan)25, Lord Hoffmann said:
Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control
leading to homicide, whether inflicted upon the woman herself or her new lover.

23
Ibid.
24
Vera Briad, Infidelity Plus The new defence against murder The Guardian (London, January 2012).
25
R v Smith (Morgan) [2001] 1 AC 146.
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However, when assessing the Barbados examples below, following the law of provocation, male
possessiveness and jealousy appears to remain an acceptable reason for the loss of self-control.

Through numerous cases, the Court of Appeal of Barbados has been presented with evidence that
provocation has stemmed from adultery or infidelity. To begin, in Browne v R26 the Court of Appeal,
dealt with, inter alia, the provocative words and actions of the deceased. The directions given at first
instance included: a jilted lover who had spent all his savings or nearly all his savings in providing his
woman with a house and looking after her children and a jilted lover going to a house to be insulted by a
woman and to find her new lover sitting down there, whether that would cause a reasonable man to lose
his self control and kill the lover.27 The Court, whilst acknowledging an inappropriate direction on
intent, allowed and accepted that provocation by reason of infidelity could and does stand.

In a more contemporary case, DaCosta Clarke v R28, the Appeal Court again had similar issues before it.
The facts of the case including statements from both the court and Appellant are as follows: The
defendant was a labourer on a construction site. The deceased shared a house nearby with another woman
who sold food to the workers on the site. The appellant befriended the deceased and, it appears, became
infatuated with her. She did not have a regular job, and the deceased gave her weekly sums varying
between $300 and $500.

In his written confessional statement, the appellant said, inter alia, that on more than one occasion the
deceased invited him for sexual intercourse. But, in fact, they never had sexual intercourse. Prior to the
date of the murder, he had seen the deceased twice with another man. He confronted her about the
association but there was no violence between them.

On 23 September 2006 the appellant was on his way to work at the construction site in a minivan. He saw
the deceased and her house-mate in the gallery of the house which they shared. The deceased had a towel
wrapped around her. The appellant says that he disembarked from the van and he observed that the house
was closed and the house-mate had gone. The appellant called the deceased on his cellular telephone.
She did not answer. He then asked one of his fellow workers to accompany him to the house to see what
was happening. They went to the house. The appellant pulled the blinds of the bedroom window which
was open.

What he saw enraged him. He observed the deceased in flagrante delicto. His statement recounted:

I see she (sic) and a man on the bed naked. I say, You spending my money and that is what you doing
to me? I get real vex and I climb in the house through the window. When I get in, the man chuck me.

26
Browne v The Queen BB [1994] CA 35.
27
Ibid.
28
DaCosta Clarke v The Queen BB [2009] CA 20.
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She ran out the bedroom into the house. I ran behind she and tell she that I dont deal with women who
got men. Kera hit me in my stomach and we start fighting. I hit she a few times on she head with a piece
of wood off the bed. She was spending my money and promising me pussy. She fall down on the floor.
She was bleeding from she head. I jumped through the bedroom window and called my best friend and
tell he what had happened.29

The appeal was against sentence, however the Court of Appeal, when discussing mitigating and
aggravating factors, made the following statement:

In our opinion, the following assumptions in favour of the appellant are to be taken into account. First,
we assume, as the facts would indeed suggest, that the appellant did lose his self-control. However, mere
loss of temper or jealous rage is not enough to satisfy s.5 of the Act. Secondly, we accept that his loss of
self-control was the direct result of seeing the deceased naked in bed with another man. Thirdly, we have
assumed that that loss of self-control was reasonable in all the circumstances. Finally, we assume that the
circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of
the crime to manslaughter. The Director must have borne these matters in mind when he decided to
accept the plea of guilty of manslaughter.30

The DPP upon accepting a guilty plea of manslaughter stated this was the classic case of provocation.31
The Court of Appeal went on to say: In our judgment, the relationship between the appellant and the
deceased had not fructified into one of such intimacy as to be characterised as domestic or quasi-
domestic. The appellant made the unrealistic assumption, no doubt engendered by his personality
deficiency, that he was involved with the deceased more deeply than was the case. The court accepted
that the relationship had not developed into one of intimacy, and although the defendant may have
perceived this to be the case, it was not.

In 2009 the Court of Appeal once again had to decide on sentencing in another voluntary manslaughter
case, R v Harwood32. The Director of Public Prosecutions had accepted a guilty plea at first instance
based on the evidence of provocation as well as the medical and psychiatric history of the accused. The
appellant was a practicing homosexual who, following release from prison, aimed to rekindle his pre-
custodial relationship with the deceased. Altercations occurred and in one instance the police were called
who subsequently charged the appellant with possession of an offensive weapon. A guilty plea at the
magistrates and a 12month bond to stay away from the deceased followed. The bond however failed to
work and the appellant stabbed and killed his victim. As stated in the Appeal Courts record the
appellant went to the deceaseds house intending to kill him. He hid behind a wall and saw the deceased.
He ran towards him and they fought in the kitchen. He stabbed the deceased 21 times. When he saw a
crowd of people coming, the appellant ceased stabbing the deceased. He threw away his shirt and pants
and made his way towards the Flour Mill where he threw the knife into the sea. There was significant
evidence of both premeditation and little of loss of control. The court ended in its conclusion stating

29
Ibid. [26].
30
Ibid. [27] (Simmons CJ).
31
Ibid. [20] (Simmons CJ).
32
Harewood v The Queen BB [2009] CA 23.
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Indeed, having regard to the appellants premeditation, his expressed intent to kill the deceased and the
resultant severity of the appellants attack on the deceased, the sentence was entirely proportionate.

These statements provides further evidence of the acceptance that a plea of provocation can succeed even
when the provoking act was one carried out by an individual who was not in a formal relationship, was
trying to terminate a relationship, or merely unable to rekindle a relationship with the accused. Still, when
applying the second limb of the defence, the test of the reasonable man doing as the defendant did, the
DPP was confident in all occasions that a plea of provocation was the correct defence and that a guilty
plea of manslaughter was to be accepted.

Public opinion has been often been rallied in cases of provocation, most recently through the unreported
case of Pile33. The deceased had agreed to have sex with the defendant in exchange for the defendant
paying her rent. The deceased then changed her mind, refusing to have sex. This enraged the defendant,
who proceeded to kill the deceased by beating her to death. The DPP accepted a plea of manslaughter by
reason of provocation, as a jury properly directed could reach the conclusion that Pile was provoked. 34
This provoked public outcry, with newspapers publishing statements such as That human rights can be
so trampled and Barbados dragged back into the dark ages by a judicial officer so steeped in male macho
culture.35 The Barbados Free Press stated: Barbados women had better not withhold sex if they know
whats good for them: No, this outrage didnt happen in Saudi Arabia or Pakistan. It happened in the
Caribbean island nation of Barbados where our Director of Public Prosecutions dropped a charge of
murder to manslaughter because the murdered woman had refused sex and therefore provoked her
killer. 36 Further criticism has been published in international text books, where it has been stated Such
decisions are out of line with contemporary modern standards ()37. Although not directly linked to the
question of sexual infidelity, the case of R v Pile assists in demonstrating the application of the defence in
Barbados, and why questions must be asked about the future of provocation.

Coroners and Justice Act 2009

Moving on from the situation in Barbados to the revised law in England, Wales and Northern Ireland, the
Coroners and Justice Act 2009 sought to rectify the existing confusion which had subsisted in the area of
provocation for decades38. The frequent criticism of the application of the defence led to the
implementation of the Coroners and Justice Act 2009, with Sections 55 and 56 being brought into force in
October 2010.

The Act abolished all common law precedent renaming the defence Loss of Control and codifying it
into sections 54 and 55. S54 reads as follows:

33
Pile v The Queen (Unreported) [2011].
34
Ann Walcott, Women have a right to say no The Barbados Advocate (Barbados, January 2011).
35
Ibid.
36
Barbados Free Press Barbados Chief Prosecutor: Woman provoked her killer by refusing sex, therefore not murder
(Barbados Free Press, 11 January 2011). <http://barbadosfreepress.wordpress.com/2011/01/11/barbados-chief-prosecutor-
woman-provoked-her-killer-by-refusing-sex-therefore-not-murder/> accessed 03 May 2013.
37
A Reed and M Bohlander, Loss of control and diminished responsibility: domestic, comparative and international perspective
(1st edn, Ashgate, 2011) 226.
38
Ibid; Smith & Hogan Criminal Law (n 12).
10

(1) Where a person (D) kills or is a party to the killing of another (V), D is not to be convicted of
murder if

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

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

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

The revised test maintains both the subjective and the objective elements present in the defence of
provocation, while adding an additional requirement of a Qualifying Trigger. Fulfillment of a qualifying
trigger is required to successfully plead Loss of Control, and is further clarified in S55:

(3) This subsection applies if Ds loss of self-control was attributable to Ds fear of serious violence from
V against D or another identified person.

(4) This subsection applies if Ds loss of self-control was attributable to a thing or things done or said (or
both) which

(a) Constituted circumstances of an extremely grave character, and

(b) Caused D to have a justifiable sense of being seriously wronged.

(5) This subsection applies if Ds loss of self-control was attributable to a combination of the matters
mentioned in subsections (3) and (4).

(6) In determining whether a loss of self-control had a qualifying trigger

(a) Ds fear of serious violence is to be disregarded to the extent that it was caused by a thing which D
incited to be done or said for the purpose of providing an excuse to use violence;

(b) A sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to
be done or said for the purpose of providing an excuse to use violence;

(c) The fact that a thing done or said constituted sexual infidelity is to be disregarded.

In brief, the loss of control defence requires the following: the defendant killed due to a loss of control,
this loss of control was caused by a qualifying trigger, and a reasonable man might have reacted in the
same way as the defendant. It is important to note that the partial defence could still be put before a jury
where there has been a delay between the trigger incident and the murder. However the judge will have to
determine whether the time delay was substantial enough to render the defence of loss of control
untenable and therefore not appropriate to put before the jury.39

39
Crown Prosecution Service, CPS Legal Guidance: Homicide (Prosecution Policy and Guidance, 2012).
11

Subsections 3 and 4 describe that which constitutes a qualifying trigger, namely that the circumstances
were of an extremely grave character and caused the Defendant to have a justifiable sense of being
seriously wronged. It is no accident that the legislature chose such strong words: extremely grave and
seriously wronged both raise the bar and provide full interpretation based on their common usage.

Subsection 6 defines acts which will not qualify as a trigger, prohibiting their use. Sexual infidelity is one
such act which Parliament has expressly stated in subsection 6 to be disregarded, and as such is not a
qualifying trigger when applying the defence.

The case of the R v Clinton, Parker and Evans40 gave the Courts their first opportunity to fully discuss the
new legislation on Loss of Control. The case therefore has become leading case on the application of the
defence, with the Lord Chief Justice providing the majority judgment.

With regards sexual infidelity being expressly excluded, the Lord Justice provided justification very early
on in his judgment. The reasoning for such exclusion is based on the concept of the autonomy of each
individual. Of course, whatever the position may have been in times past, it is now clearly understood,
and in the present context the law underlines, that no one (male or female) owns or possesses his or her
spouse or partner.41

During debates in Parliament, Government Spokeswoman Claire Ward spoke at length on the subject of
sexual infidelity, stating:

The history of the partial defence of provocation has led to a commonly held belief that this defence can
be abused by men who kill their wives out of sexual jealousy or revenge for infidelity. This erodes the
confidence of the public in the fairness of the criminal justice.

She went on to say that the Government did not think it appropriate in this day and age for a man to be
able to say that he killed his wife as a result of sexual infidelity if other factors come into play, the
court will of course have an opportunity to consider them, but it will not be able to make the decision
exclusively on the ground of sexual infidelity. Further, the defence would turn on the facts, but that
sexual infidelity in itself cannot and should not be an acceptable reason for a defence for murder.42The
Lord Judge echoed the opinions of Government Spokeswoman Claire Ward when stating The legislation

Note: The defence is not available to those who act with a considered desire for revenge (section 54(4)). This is so even if the
defendant loses self control as a result of one of the qualifying triggers.
40
R v Clinton et. al. [2012] EWCA Crim 2.
41
Ibid [16].
42
HC Deb 9 November 2009, vol 499, cols75-78.
12

was designed to prohibit the misuse of sexual infidelity as a potential trigger for loss of control in
circumstances in which it was thought to have been misused in the former defence of provocation.43

The Coroners and Justice Act 2009 received Royal Assent in November 2009, and applies to defendants
charged with murder where the acts or omissions resulting in the death of the victim took place on or after
4 October 2010.

At this point, a definition of sexual infidelity would be helpful. This was, however, not provided by
Parliament in the Act. This glaring omission by the legislature meant that the term was discussed at length
in the judgment of R v Clinton et al44. Clearly, the lack of a statutory definition presents a number of
questions when applying the prohibition of sexual infidelity as a qualifying trigger. From the broad to the
narrow, traditional to modern, the interpretations available for the definition of sexual infidelity are wide
ranging.45 Notably, Professor Ormerod in Smith & Hogan discusses a number of possible questions which
arise when reviewing the provision46. He poses five queries as to the meaning of sexual infidelity,
questioning the extent of the relationship, the interpretation of sexual infidelity being solely concerned
with sexual activity, the extent of words constituting sexual infidelity amongst others.47 Further, the
drafting of the legislation is criticised for its disappointing nature.48 The conclusion reached by the Lord
Judge in Clinton et al provides little guidance on the matter.

The case of R v Clinton et al

The appeal by Mr. Clinton is the focal point for the purposes of this article. This is due to the extensive
discussion which took place on the application of sexual infidelity, a key element in the loss of control
defence. The appeal by Mr. Clinton focused on the area of sexual infidelity, and his appeal, the only one
of the three heard together, was successful. An overview of the facts of the R v Clinton were provided by
the Court of Appeal as follows: Mr. and Mrs. Clinton had lived together for 16 years. They had two
children of school age. They married in 2001. Two weeks before her death, the appellant's wife had left
him and the children of the family as they began what was described as a trial separation () The couple
continued to spend time together with the children as a family, and their mother would return to the
family home to look after them on their return from school until the appellant returned home from work.

Mrs. Clinton spent time in the family home on Saturday 13th November, and they went swimming and
ate dinner together as a family on the next day. On that day Mrs. Clinton told the appellant that she was
having an affair.

43
Ibid.
44
R v Clinton et.al (n 40).
45
The Oxford English Dictionary defines Infidelity as the action or state of being unfaithful to a spouse or other sexual
partner.
46
David Ormerod Smith & Hogan Criminal Law (13th edn, Oxford University Press, 2011) 520.
47
Ibid.
48
Ibid.
13

That evening Mrs. Clinton's car () was stolen from outside her parent's home. On the following
morning it was found in a burnt out condition. The jury was satisfied that the appellant was responsible
for the removal and damage to the car. (t)he appellant consumed drink and drugs, including a large
amount of Codeine and he searched websites containing material dealing with suicide.

Mrs. Clinton was dropped at the family home by her mother at about 14.00 hours. When her mother
returned at 15.40 she found that the curtains were drawn and the door was barricaded. Police attended at
about 17.10. They forced the front door. They found the body of Mrs. Clinton on the living room floor
semi naked. She had obvious head injuries. There was a ligature around her neck. She was pronounced
dead. The appellant was found in the loft with a noose around his neck attached to the rafters.

The deceased had been beaten about the head with a wooden baton, strangled with a belt, and then a piece
of rope had been tightened around her neck with the aid of the wooden baton. There were defensive
injuries. The cause of death was head injury and asphyxia caused by a ligature compression of the neck.
After he had killed her the appellant removed most of her clothes and having put her body into a number
of different poses, took photographs of it and then sent text messages to Mr. Montgomery, the man with
whom she was having a relationship.49

The trial judge, Judge Smith directed herself that there was no evidence that the loss of self-control
necessary for the purposes of this defence was due to one of the qualifying triggers identified in the
statute. She was required "specifically" to disregard anything said or done that constituted sexual
infidelity. The remarks allegedly made by the wife, challenged about her infidelity () were to be
ignored.

On the question of the express exclusion of sexual infidelity by Judge Smith, the conclusion reached by
the Lord Judge was thus:

Our approach has, as the judgment shows, been influenced by the simple reality that in relation to the
day to day working of the criminal justice system events cannot be isolated from their context. () It may
not be unduly burdensome to compartmentalise sexual infidelity where it is the only element relied on in
support of a qualifying trigger, and, having compartmentalised it in this way, to disregard it. Whether this
is so or not, the legislation imposes that exclusionary obligation on the court. However, to seek to
compartmentalise sexual infidelity and exclude it when it is integral to the facts as a whole is not only
much more difficult, but is unrealistic and carries with it the potential for injustice. In the examples we
have given earlier in this judgment, we do not see how any sensible evaluation of the gravity of the
circumstances or their impact on the defendant could be made if the jury, having, in accordance with the
legislation, heard the evidence, were then to be directed to excise from their evaluation of the qualifying
trigger the matters said to constitute sexual infidelity, and to put them into distinct compartments to be
disregarded. In our judgment, where sexual infidelity is integral to and forms an essential part of the

49
R v Clinton et. al. (n 40) [50-54].
14

context in which to make a just evaluation whether a qualifying trigger properly falls within the ambit of
subsections 55(3) and (4), the prohibition in section 55(6)(c) does not operate to exclude it.50

The Lord judge went on to say We have reflected whether the totality of the matters relied on as a
qualifying trigger, evaluated in the context of the evidence relating to the wife's sexual infidelity, and
examined as a cohesive whole, were of sufficient weight to leave to the jury. In our judgment they
were.51

The impact of the judgment is to prevent the exclusion of sexual infidelity should it form an essential part
of either the defendants loss of self-control being attributable to a thing or things done or said (or both)
which constituted circumstances of an extremely grave character, and caused defendant to have a
justifiable sense of being seriously wronged. The result of this has been for the courts to swiftly extend
the narrowing of the defence as decided by Parliament. Academics have sought to argue the incorrect
interpretation of the legislation by the Lord Judge52. However, it is argued that the Lord Judge followed
the Governments intended position; sexual infidelity in itself is not sufficient53. Nonetheless, the use of
the defence when such infidelity falls within the ambit of a thing or things done or said (or both) which
constitutes circumstances of an extremely grave character, and caused the defendant to have a justifiable
sense of being seriously wronged is to be sufficient. As such, as the legal position currently stands, sexual
infidelity as a stand-alone reason will not suffice, however, when it forms a fundamental part of the
circumstances, which are of an extremely grave character, and such circumstances cause the defendant to
have a justified sense of being seriously wronged, it will not be excluded by the courts.

Although the provision is not of the fully exclusionary nature it seemed, the status of the law and the
applicability of sexual infidelity when using the defence of Loss of Control has been narrowed
significantly54. The wording used by both the Lord Judge and the statute maintain that the circumstances
must be of an extremely high nature in order for the defence to succeed. As stated in R v Clinton By
contrast with the former law of provocation, these provisions, as Mr. Michael Birnbaum QC, on behalf of
Clinton submitted, have raised the bar. We have been used to a much less prescriptive approach to the
provocation defence. Which circumstances will constitute such a requirement remains to be seen through
the application of the defence in future cases.

The Barbados Application

As previously mentioned, Barbados, along with a majority of the Commonwealth Caribbean, use
manslaughter legislation which mirrors that in the Homicide Act 1957. Having previously used the Privy

50
Ibid. [39].
51
Ibid [77].
52
DJ Baker and LX Zhao, Contributory Qualifying and Non-Qualifying Triggers in the Loss of Control Defence: A Wrong Turn
on Sexual Infidelity [2012] Journal of Criminal Law 76.
53
HC Deb (n 42).
54
Smith & Hogan Criminal Law (n 46) 508.
15

Council as their final Appellate Court55, Barbados have been subjected to the unpredictable and ever
changing nature of the defence, and have confirmed in R v Griffith56 that the Privy Council case of
Attorney General for Jersey v Holley57 is their current, binding authority, along with the Act.58

When assessing the potential impact of such a new law being introduced in Barbados, assistance is drawn
from looking back at the aforementioned cases where actual or perceived infidelity or adultery has played
a part in a successful plea of provocation. In such cases, the DPP has often accepted a plea of
manslaughter on a charge of murder, and appeals arise against sentence. At this point it is to be
remembered that Barbados maintains the mandatory death penalty for a conviction of murder. 59 As such,
a reduction from murder to manslaughter carries with it further importance.

Using the case of DaCosta Clarke v The Queen60, detailed above, without expressly using the word
Provocation, it is submitted that Simmons CJ agreed with the DPP when accepting manslaughter by
reason of provocation. On the facts given by the Defendant, the acceptance of provocation could have
been justified with reference to the physical violence exerted on the accused by the deceased. However, in
the words of Justice Simmons, this is not mentioned. The reason is based on the accused seeing the
deceased naked in bed with another man61. On the facts given by the DPP, their relationship goes no
further than a form of friendship, a contention accepted by the court of appeal.62 The accused became
infatuated with the deceased. They are not described as a couple or together or partners, nor had they
ever engaged in sexual intercourse. The accused had known that the deceased was associating with
another man, and, from his actions and assumed continued association, had accepted such was the case.63
From the facts, all we know is that the accused funded the deceased, became infatuated and killed her on
seeing her in bed with another man. Further, on striking the deceased, he left the scene, leaving her
bleeding from the wound he inflicted on her head. He did not summon medical attention, and the
deceased was left on the floor for 5 and hours alone.64 As mentioned above, sexual infidelity in loss of
control is excluded. However, following Clinton, it is clear that it cannot be ignored so should it form an
integral part of a qualifying trigger?

An updated application of the Loss of Control

55
Caribbean Court of Justice Act 2003 Cap. 117, Caribbean Court of Justice (Amendment) Act 2005 and the Constitutional
Amendment Act 2003.
56
Griffith v The Queen (n 8).
57
Attorney General for Jersey v Holley (n 4).
58
The Caribbean Court of Justice have confirmed that they will not arbitrarily overrule the decision of the Privy Council, a fact
demonstrated in the Attorney General v Joseph and Boyce [2006] CCJ 1 (AJ).
59
Although the last execution was carried out in 1984, the mandatory sentence remains in Offences Against the Person Act 1994
and judges are therefore bound to apply it without discretion.
60
DaCosta Clarke v The Queen (n 28).
61
Ibid.
62
Ibib. Simmons, CJ.
63
Ibid [3].
64
Ibid. [29].
16

Looking at R v Clinton65 there is clearly a need for some provision to include sexual infidelity into the
defence. If it were to be, the test would likely be updated to:

1. Does the sexual infidelity form an essential part of Ds loss of self-control being attributable to a
thing or things done or said (or both), which constituted circumstances of an extremely grave
character, and
2. Caused D to have a justifiable sense of being seriously wronged? 66

The example given by the CPS Legal Guidance of where sexual infidelity is not to be disregarded is a
defendant who kills her husband because he has raped her sister (an act that could be deemed to be one of
sexual infidelity).

The act of sexual infidelity may be disregarded, however her actions may still be a qualifying trigger
under section 55(4) Coroners and Justice Act. When applying the required criteria, rape of the defendants
sister by her husband is a thing done, which is clearly of an extremely grave character, and which would
cause the defendant to have a justifiable sense of being seriously wronged. In order to avoid the injustice
which would invariably occur should sexual infidelity suffer blanket exclusion, sexual infidelity which
fulfills the qualifying trigger criteria is to be permissible when applying the defence.

The questions whether the circumstances were extremely grave, and whether the defendant's sense of
grievance was justifiable, indeed all the requirements of section 55(4)(a) and (b), require objective
evaluation.

Using the objective evaluation, the words extremely grave and sense of grievance would be judged
based on the reasonable man. Would the reasonable man have felt the circumstances were extremely
grave, and would the reasonable man have felt the defendants sense of grievance was justified? (with the
reasonable man being taken in its legal meaning, following Lord Diplock in R v Camplin67:

It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of
such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in
society as it is today.

Using the CPS guidance, the judgment of the Lord Judge in R v Clinton and the wording of the statute, it
is clear that the loss of control defence presents a very different stance than that of provocation.

65
R v Clinton et. al (n 40).
66
Ibid. [39].
67
R v Camplin [1978] AC 705 [717].
17

Conclusion

The legislative status quo in Barbados continues with the Offences Against the Person Act 1994 and will
until amendment is deemed necessary and desirable. The law of provocation however is outdated in the
commonwealth Caribbean and the time has now come to reflect on those existing laws and effect the
much needed change.

Continuing to apply a law which is recognised by the highest courts as being ineffectual, erratic and
unsatisfactory is difficult to justify, particularly when the law in question is of such importance. With
penalties for Murder being as they are, this law is a matter of life and death.

The focus of this paper has been on sexual infidelity due to its relevant nature in both UK and Barbados
case law, but cultural views on adultery in the Caribbean differ from those in the UK. The decision to
expressly exclude sexual infidelity is one which would require discussion on a local level, having
regards to local views. However, even without the exception of sexual infidelity, the addition of
qualifying triggers to such a defence would serve to increase the threshold on which loss of control can be
relied. Abolishing all previous common law allows for a clean slate, a fresh start to draft and mold an
appropriate defence with associated jurisprudence ensuring the requisite safe guards in place.

The loss of control defence as a basis for change is justified in a number of ways as discussed however
the historical links between the Caribbean and the UK cannot be ignored. The definition of murder on
which the defence is used and the extensive similarities in the legal systems of a majority of Caribbean
states all make the transition to an updated law the more easy. These similarities provide Barbados and
the wider region with the opportunity to observe change and decide whether to adopt, adapt or ignore.
Many, of course, will be ignored as irrelevant, however the law of provocation is one which, it is
submitted, should be strongly considered as an option for change.