R v Clinton [2012] EWCA Crim 2

The Court of Appeal considered three murder appeals together. Clinton had killed his wife after learning of her sexual relationships and during a confrontation in which she allegedly taunted him about his own suicide attempts and threatened to prevent contact with their children. The trial judge withdrew loss of control from the jury, treating sexual infidelity as excluded by section 55(6)(c) of the Coroners and Justice Act 2009. In the other appeals, Parker and Evans had also killed partners against backgrounds involving alleged infidelity, but their factual and procedural positions differed. The Court had to explain how the exclusion interacts with other evidence said to constitute a qualifying trigger.

Must evidence of sexual infidelity be ignored entirely when considering loss of control, or may it be considered as part of the context where another statutory qualifying trigger is supported by evidence?

The Court of Appeal held that sexual infidelity is expressly excluded from constituting a qualifying trigger on its own. However, section 55(6)(c) does not require the jury to remove such evidence from the narrative where another qualifying trigger is properly in issue. In that situation, infidelity may be considered as part of the context in which the defendant's loss of control and the gravity of other words or conduct are assessed. Clinton's case contained evidence beyond infidelity which could potentially satisfy the statutory test, so his conviction was quashed and a retrial ordered. The other appeals were dismissed on their facts. The judgment did not revive the former provocation defence or permit possessive jealousy alone to qualify.

Sexual infidelity cannot itself amount to a qualifying trigger for loss of control under section 55 of the Coroners and Justice Act 2009. If independent evidence raises another qualifying trigger, infidelity may nevertheless be considered as part of the overall context rather than artificially excluded from the jury's assessment.

The decision prevents both evasion and overextension of the statutory exclusion. A defendant cannot repackage anger about infidelity as circumstances of an extremely grave character, but a court should not distort a complex confrontation by deleting relevant context once another trigger is genuinely raised. The full defence still requires a loss of self-control, a qualifying trigger and the objective tolerance and self-restraint test in section 54. The loss need not be sudden, and section 54 excludes a considered desire for revenge. Clinton therefore concerns only one part of a tightly structured statutory defence.