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R v Clinton [2012]


  • In a meeting to tell their children that their marriage was over, a wife told her depressed and intoxicated husband in graphic detail about her affair with another man, taunted him about a suicide website he had visited and denied wanting to look after their children
  • In response to this, the husband killed his wife; the children were not present


  • Could the husband rely on the defence of loss of self-control?


  • Yes


  • The House of Lords reversed the trial judge’s decision and allowed the defence of loss of self-control to at least be put to the jury
  • It was held that although sexual infidelity may not constitute a ‘thing said or done’ trigger to loss of self-control, its ‘common’ definition was severely narrowed (undefined in statute)
  • Things done which constitute sexual infidelity were not seen as a major issue
  • Things said which constitute sexual infidelity include both first and third-party reports of sexual infidelity, regardless of their truthfulness
  • If sexual infidelity explains the context of a situation (as opposed to being relied upon per se), it should not be excluded from the jury
  • A fact of betrayal as a result of sexual infidelity is not to be considered as sexual infidelity in itself
  • The defence may be raised by the defendant or the judge (or even the prosecution, which is highly unlikely), and places an evidential burden on the defendant to ‘pass the judge’ as to the first two requirements of the defence: a loss of self-control and a qualifying trigger
  • The defence raised the bar over the old provocation defence with the words ‘extremely’ and ‘serious’
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