Q: The abolition of the partial defence of provocation should enable battered women who kill to be convicted of manslaughter rather than murder.

Discuss the statement above with reference to ss 54 and 55 of the Coroners and Justice Act 2009.

Essay outline answer

You would first start with an explanation of the abolition of the common law defence of provocation and repeal of s 3 of the Homicide Act 1957. Then, explain the new partial defence under ss 54 and 55 C&JA 2009 based on loss of self-control. Although the Law Commission recommended abolition of the requirement of actual loss of self-control, the enacted provisions retain this requirement. You would be expected to comment on Duffy [1949] and Ahluwalia (1992), mentioning the nature of the so-called slow burn and the new provision specifying the loss of self-control need not be sudden. Analyse whether an actual loss of self-control can be non-sudden. You could also point out that a battered woman who did kill after a lapse of time might have been convicted of manslaughter before the C&JA 2009, availing herself of the defence of diminished responsibility; comment on whether this was a satisfactory defence in this context (is it fair to label D as abnormal?). You should not forget to describe the other elements of the new partial defence, including the nature of the qualifying trigger (focus on the ‘fear’ trigger in this answer), and the objective test (an ordinary person with a normal degree of tolerance and self-restraint in the circumstances of D). The decision in Clinton [2012] in respect of sexual infidelity may be relevant if D was a battered spouse and D killed V in a context in which V had been both abusive and unfaithful to D.

Form a reasoned conclusion.