Part of the SLSA Blog Series ‘The Legal Treatment of Defendants with Partial Criminal Responsibility’
Dr Kirsty Welsh, Senior Lecturer, Nottingham Law School
In 2021, Penelope Jackson, a 66year-oldwoman, was convicted of murdering her husband of 25 years. After a disagreement over dinner, she stabbed him twice and then twice again whilst on a 999 call to the emergency services, during which she stated that ‘I have killed my husband, or tried to, because I’ve had enough’. She appeared calm. On her arrest for attempted murder, she stated, ‘hopefully it’s not attempted’. At trial, she denied having the intent for murder, further seeking to rely on the partial defence of loss of control, as set out in s54 Coroners and Justice Act 2009. This partial defence requires that the defendant lost their self-control; that this was brought about by a ‘qualifying trigger’; and that a reasonable person of the defendant’s age and sex, with a normal degree of tolerance and self-restraint, in the defendant’s circumstances, might have reacted in the same or a similar way. Unlike the defence it replaced, and seemingly included for the benefit of women who have killed their abusive partners, there is no need for the loss of control to be sudden. If successful, the defence reduces the defendant’s liability from murder to manslaughter, thereby avoiding the label of ‘murderer’ and giving the judge discretion over sentencing.
Mrs Jackson claimed that her husband had been abusive throughout their marriage and had become increasingly more controlling, abusive and violent. She described how, on the night in question, her husband had taunted her. Crucially, however, she claimed that the loss of control from the qualifying triggers set out in s55(4) was a result of the overall pattern of abuse rather than as a result of a particular, individual incident. The jury rejected both claims. She was convicted of murder and sentenced to imprisonment for life. The Court of Appeal refused her leave to appeal, concluding that there was no basis on which the safety of the conviction could be challenged.
Mrs Jackson’s legal team had submitted, principally, that the judge should have directed the jury on the individual and cumulative nature of the matters which were relevant to deciding whether or not Mrs Jackson had lost control, and whether these matters amounted to a qualifying trigger for the purpose of the partial defence of loss of control. In his direction, the judge had told the jury that they must view the events on the night in question in the context of the defendant’s contention that she had been regularly subjected to violence during the marriage. He told them that her account should be assessed in the context of the marriage as a whole, reminding them about the incremental harm that was caused by years of domestic abuse and the ‘cumulative impact’ of a history of ‘both physical and mental’ abuse. He specifically directed on the question of domestic abuse and, when summing up the evidence, reminded the jury of Mrs Jackson’s evidence in full, including that about her life and relationship with the deceased. He did not, though, elaborate or analyse each individual component of the cumulative history.
The Court of Appeal held that, in directing that the loss of control need not be sudden and that it can be triggered by the cumulative impact of a pattern of events, the judge had been ‘scrupulous’ in connecting the events of the night of the killing with the much longer history of abuse. It was a matter for jury as to whether they accepted the defence, having taken into account that the loss of control need not be sudden and can be the result of cumulative events. In so deciding, however, the Court has ultimately reduced the matter to whether the jury believe; have sympathy for; and identify with the defendant. This is problematic on several levels.
The Problems
The loss of control defence was introduced as a replacement for the similar ‘provocation’ defence, which was increasingly acknowledged to be ill-equipped to deal with cases in which abused women kill. One of its most significant difficulties was the requirement that, in response to the provocative conduct on which they sought to rely, an abused woman had to show a ‘sudden and temporary loss of control, rendering him (sic) so subject to passion as to make him for the moment not master of his mind’. The new loss of control defence abolished the old law of provocation, stating that ‘for the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden’. In Dawes, Lord Judge CJ held that ‘…the loss of control may follow from the cumulative impact of earlier events…’. The Court of Appeal clearly felt that, in repeating such statements, the judge in Jackson had provided sufficient explanation for the jury to decide whether the defendant had lost control, in light of the domestic abuse which she described. Yet, in so deciding, the Court has entrenched several difficulties faced by abused women who kill in relying on this defence.
The first difficulty is that abused women who kill often do not experience a loss of control in a conventional (i.e. the stereotypically male) sense. This difficulty was graphically seen in Jackson, where Jackson presented almost as an automaton in both the 999 call and the police body-worn video-cam footage. Tellingly, the media narrative was that Jackson was not highly-traumatised but was ‘relaxed’. Including a loss of control in the defence has made it less available to abused women who kill but the Court of Appeal in Jackson has compounded the barriers here.
The most significant difficulty, though, goes to the heart of the Mrs Jackson’s case and is about how domestic abuse is understood and narrated, particularly to juries. Her lawyers submitted that, in cases where it is the overall pattern of abuse that grounds the defence, the judge should analyse each individual component of the cumulative history. Whilst the judge had recited her evidence, they submitted that this was insufficient, since such an analysis was crucial to the jury’s understanding of the loss of control itself. The important feature of the case was the entrapment that Mrs Jackson felt following the abuse. The judge should have given the jury the tools to understand how an apparently happy marriage ended in what appeared to be a senseless killing. They also submitted that the trial judge had focussed too much on the violence that Mrs Jackson had experienced rather than explaining to the jury that this violence served as a tool of control as opposed to a harm in and of itself.
Domestic Abuse – a Liberty Crime
Penelope Jackson claimed to have experienced domestic abuse over many years, with the deceased having become more controlling over time. She recounted, inter alia, jealousy; isolation; violence; degradation; micro-regulation; aggression; and intimidation. Throughout the judgment in Jackson, this conduct was described as ‘coercive control’ but it is important that coercive control does not come to be seen as a distinct ‘type’ of domestic abuse. A better understanding is that domestic abuse is a liberty crime (Stark, 2007) in which gendered power is routinely exercised in order to control and limit choices, operationalised through repeated harassment, intimidation and (sometimes) the use and threatened use of violence. This understanding prioritises and mainstreams the centrality of the specific notion of coercive control as the underlying dynamic in abusive relationships. So understood, domestic abuse rests on a systematic exercise of control and a sustained attack on women’s space for action, which results in an ongoing loss of autonomy. The corrosive consequences on women’s soul and sense of self ultimately lead to their ‘entrapment’ in abusive relationships.
As was Mrs Jackson’s case, by not detailing each moment of control in the relationship, the trial judge did not give jurors adequate instruction, first, that these moments are indelibly connected (the links between each should have been drawn) and, secondly, that the particular meanings in abuse are often highly individual, understood only by abuser and abused. The jury might have been told that there was coercion but, without this further instruction, was not equipped to understand each moment as a weapon thereof and, crucially, how this played out up to and on the night of the killing. It is this aspect of the case which seems to have eluded the Court of Appeal in its analysis.
Ultimately, in deciding that trial judges need only explain that the loss of control need not be sudden and can be the result of cumulative events and then leave the matter to the jury’s (assumed) general knowledge of the complex dynamics of domestic abuse, the Court has done a great disservice to women who kill controlling and abusive partners. A better outcome would have been to foreground the developing understanding of domestic abuse and, in doing so, give jurors the essential tools with which to understand the dynamics of the relationship and its impact. How, without these tools, are jurors supposed to decide the matter? In reducing it to whether the jury believe; have sympathy for; and identify with the defendant, the Court has invited recourse to myths and stereotypes about domestic abuse. In prioritising women’s entrapment, the coercive control framework should have rendered outdated questions such as ‘why didn’t she leave’ redundant. Sadly, the Court of Appeal could, in this decision, have allowed such questions back into the jury room.
[1] [2023] EWCA 735
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