Jonathan Herring – Author of ‘Criminal Law: Text, Cases and Materials’ (OUP)

Jonathan Herring, professor at Oxford University, attended October 2009’s Forum on Domestic Violence, organised by the Law Students for Social Justice, as one of the keynote speakers. Anne Phan and Shreya Kargathra took the chance to get his views on the Coroners and Justice Act. Professor Herring was interviewed by Anne Phan & Shreya Kargathra.

AP &SK: Establishing the partial defence of diminished responsibility will require the defendant to have a recognised medical condition and so arguably narrows the partial defence. What is the broad effect of this?

JH: It will mean that any defendant seeking to rely on diminished responsibility will need to introduce medical evidence that they suffer from a recognised mental disorder.

I doubt in practice that it will make a huge difference, in that it is very rare for a defendant to seek to rely on diminished responsibility without relying on medical evidence.

Where it could be significant is a case where a defendant’s state of mind was clearly disturbed, but it is not possible to introduce evidence that they suffered from a medically recognised mental condition.

AP & SK: Regarding the defence of “loss of self-control”, how much, realistically, would the “qualifying trigger” in [clause 49] help battered women in cases such as R v Ahluwalia or R v Thornton?

JH: In Ahluwalia the real difficulty she faced in using provocation was showing that she had lost her self-control, rather than killing ‘in cold blood’. That difficulty would still be faced even under the new provisions. In both of these cases I do not think that the defendants would have difficulty in showing that there was extremely grave provocation.

AP & SK: To what extent does the mental abuse of a domestic partner, who cannot rely on diminished responsibility, count as behaviour of “an extremely grave character” that would give the partner a “justifiable sense of being seriously wronged”?

JH: I hope that the courts would have no difficulty in finding that mental or emotional abuse could amount to extremely grave provocation. The wording of the clause is not limited to physical injury and there is general acceptance of the fact that the emotional and mental impact of domestic abuse can be very serious.

AP & SK: Does the ‘qualifying trigger’ create threshold issues? Would it follow that the change would therefore provide a more successful outcome for battered women?

JH: For women who kill following abuse, I think that the changes in the qualifying trigger will make little difference.

As I suggested in my previous answer I don’t think that there will be problems for most victims of domestic violence in proving a grave provocation. The difficulty that such women have faced in the past is proving that there was a loss of self-control. That requirement is still included as part of the defence.

The changes in the triggers will be significant in cases of battered women who are killed by their partner, and the partner then claims they were provoked to kill the woman by her unfaithfulness or ‘nagging’. The reforms should make such claims less likely to succeed.

AP & SK: It seems that the government have selectively taken on board some of the Law Commission’s recommendations and rejected others such as the classification of degrees of murder. Will taking amendments out of context impact on effectiveness?

JH: The Law Commission were clear that the proposals had to be taken as a package.

AP & SK: Arguably, cases like Brown and Wilson can be viewed as a disguise for domestic violence. What is your view on this?

JH: I don’t think that Brown itself could be regarded as a case of domestic violence. But Wilson and Emmett can certainly be characterised as cases where the courts were too ready to accept that the injuries caused by the defendant were consensual. The fact that in both Wilson and Emmett that the victims were not willing to give evidence in their partners’ defences raises the suspicion that these cases may have involved domestic violence.

Indeed if it is proved that a man has injured his partner then the only defence a man may have is that the victim consented to it.

AP & SK: Do you think that, with the current problems, criminal law would be the best mechanism through which to tackle the sensitive issue of domestic violence?

JH: I think that in order to tackle domestic violence we need a wide range of measures. The criminal law, civil law, education, women’s refuges and publicity campaigns all have a role to play.

The benefit of using the criminal law is the clear message that is sent out: that domestic violence is not accepted in our society and that it is regarded as a serious wrong. It also makes absolutely clear that violence in the home is not less serious than violence in the street. Indeed, it can be seen as more serious.

Jonathan Herring is a professor at Exeter College, Oxford University.