A Judicial Case Study: AG for Jersey v Holley (2005)

1. A Judicial Case Study: AG for Jersey v Holley (2005) Joanne Conaghan Critical Introduction to Law 1 February 2011

2. ‘A feminist trial should be a fairer trial’ (Baroness Hale, 2008)

3. Feminist Judgments: from Theory to Practice (Hunter, McGlynn & Rackley 2010) • unique, imaginative collaboration in which a group of legal scholars set out to write alternative feminist judgments in 23 significant UK legal cases • Sparked by similar venture in Canada in 2006 – the Women’s Court of Canada (WCC) in which a number of Canadian feminist scholars & litigators wrote ‘shadow’ judgments to major Canadian cases on the equality clause in Canadian Charter of Rights. (www.thecourt.ca/decisions-of-the-womens-court-of-canada/) • subject to same range of constraints binding appellate judges, including fidelity to judicial oath, respect for existing legal principles & consciousness of impact of decisions on parties and broader community

4. What do we mean by feminism? • ‘Advocacy of the rights of women (based on the theory of equality of the sexes)’ (OED) • Feminism in legal scholarship: • Gender as an category of analysis • Gender equality as a normative goal • a mode of analysis or way of seeing rather than ‘an agenda’ • Challenges us to consider the different ways in which we see and interpret law

5. Feminist Judging • ‘asking the woman question’: noticing the gender implications of apparently neutral rules and practices • ‘including women’: writing women’s experiences into legal discourse and into the construction of legal rules • challenging gender bias in legal doctrine and judicial reasoning • contextualisation and particularity: reasoning from context and the reality of lived experience • seeking to remedy injustices and to improve the conditions of women’s lives • promoting substantive equality • drawing on feminist legal scholarship to inform decisions. • See Hunter, et al, Feminist Judgments (2010)

6. AG v Holley [2005] AC 580

7. Judicial Committee of the Privy Council? • What is it? • Court of final appeal for the UK overseas territories and Crown dependencies, and for Commonwealth countries that have retained appeal to Her Majesty in Council or to Judicial Committee • Who sits on it? • Justices of Supreme Court and sometimes other Lords of Appeal

8. Holley: Facts/Proceedings • Defendant killed girlfriend with axe under influence of alcohol • Pleaded not guilty to murder relying on provocation (girlfriend allegedly had taunted him about her sexual infidelity) • D found guilty but appealed to Jersey Court of Appeal arguing court should take account of his chronic alcoholism in assessing whether loss of self-control • CA allowed appeal and substituted a conviction for manslaughter • AG Appeal to Judicial Committee of Privy Council

9. The provocation defence • Where on a charge of murder there is evidence of which the jury can find that the person was provoked...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 to the effect which, in their opinion, it would have on a reasonable man’ (S 3 Homicide Act 1957; Art 4(3) Homicide (Jersey) Law 1986) • See now defence of ‘loss of self-control’ (s 56 Coroners & Justice Act 2009)

10. Was provocation sufficient to make a reasonable man react as D did? • The gravity of the provocation • What constituted a reasonable standard of self-control in those circumstances • Reasonable man: a person of ordinary self-control (R v Camplin (1978)) – an objective standard of self-control • Diminished responsibility – alternative defence to accommodate ‘mental abnormality’

11. ‘ • 2 ingredients: • Factual (‘subjective’) ingredient (was D actually provoked into losing self-control?) • Evaluative (‘objective’) ingredient (was provocation sufficient to make a reasonable man react as D did?)

12. Judicial Disagreement • Luc ThietThuan v The Queen [1997] (PC) majority applied objective standard (ordinary standard of self-control) in relation to a D with brain damage causing loss of self-control • R v Smith (Morgan) [2001] (HL) – majority rejected application of ordinary standard of self control to a D suffering from clinical depression: jury should apply standard of control to be expected of particular individual (objective but with reference to the individual)

13. Holley decision • Majority applied ‘external’ standard: a person of ordinary self-control (confirming Luc Van Thuan) • Lords Bingham, Hoffman & Carswell dissenting: ‘The decisions to which we have referred ... were in our respectful opinion faithful to principle laid down in Camplin. Importantly, they reflected the rationale of the provocation defence both in its recognition of the sanctity of human life and in its allowance for human perfection’

14. Dissenters in Holley arguing for a distinction to be drawn between character flaws (not excusable) and conditions/attributes of D such as mental abnormality (which may be) • Majority arguing conditions/attributes relevant to determining the gravity of the provocation but not the reasonableness of the response. these

15. Why is this decision of interest to feminist scholars? • Men often invoke defence of provocation in context of killing wives or partners • Women have been less successful in attempts to invoke defence in context of killing violent male partners (‘Battered women’s syndrome’) • According to Home Office Consultation Paper 2003, domestic violence is ¼ of all reported violent crime in UK, with women comprising majority of victims and men vast majority of perpetrators. • About 120 women murdered by partners or former partners each year – i.e. more than 2 a week and over ½ of all female murder victims. • An incident of domestic violence is reported to police every minute and domestic violence has the highest rate of repeat victimisation of any crime • 30 men a year killed by partners or former partners (including male partners and female partners alleging domestic violence), constituting 8% of all male homicides. • The Council of Europe has stated that domestic violence is a major cause of death and disability for women aged 16-44 and accounts for more death and ill-health than cancer or traffic accidents (from Amnesty Stop Violence Against Women Campaign, www.amnesty.org.uk/svaw).

16. The feminist judgement Para 11: ‘I agree with the majority of the Board that the defendant's intoxicated state is not a matter to be taken into account ... when considering whether the defendant had exercised the ordinary powers of self-control. However, I cannot agree with the majority’s view that the characteristic of chronic alcoholism... should also be excluded. In this regard I concur with the opinion of the House of Lords in R v Smith (Morgan), followed by theCA in the present case, which would hold that chronic alcoholism, because it is a disease, is a relevant characteristic for the purpose of the objective test and may affect a person’s capacity for self-control.’ • Para 12 ‘Respectfully, I cannot agree that under the Homicide Act 1957 the degree of self-control expected of the reasonable person has to be judged by one standard, and one standard alone. In my opinion, there may be circumstances where it is appropriate, and indeed logical and just, to consider those characteristics of the accused which affect both the gravity of the provocation to him or her and his or her capacity for self-control.

17. The feminist judge’s dilemma • Does one limit the scope of the defence of provocation so that it is less available to possessive and controlling men who abuse women - but thereby also reducing its availability to battered women who kill their abusive partners - or does one make the defence more broadly available to both men and women? • Battered woman’s syndrome as a ‘condition’ or ‘attribute’

18. Law Reform: Coroners and Justice Act 2009 • All judges in Holley register need for legislative reform (another judicial dilemma) • key difference between new 'loss of control' defence and old provocation is that the 2009 Act restricts fact situations in which it can be pleaded. In particular:1. Previously any conduct capable of being provocation - jury decided. Now limited to 'qualifying triggers' including fear of serious violence OR extremely grave circumstances leading to justifiable sense of being wronged. (s55(3)+(4)) • 2. Further restriction by specifically excluding behaviour incited by alleged sexual infidelity (s.55(6) • Note Baroness Edwards’ judgement (para 50): ‘In my view infidelity and taunts relating to infidelity should be excluded as a basis for provocation on public policy grounds’

19. Some observations on the feminist judgment • Feminist decision not out of line with highly respected judges (Bingham) • Comes to a conclusion which arguably beneficial to the male D in a domestic homicide case • Locates the narrative early in the judgement (para 4) • Does not take defendant’s account of the victim’s alleged taunts as read • Locates crime within background context of serious domestic violence (para 4)

20. Uses legal material, particularly previous decisions and points of judicial disagreement (cf Bingham) • Uses judgement to make some broader observations about the defence of provocation, including an outline of the difficulties women have in invoking it in DV cases (Cf Lord Denning) • Questions nexus between the chronic alcoholism and alleged taunt (which no one else does...) • A fairer trial?