A judicial case study: AG for Jersey v Holland (2005)

A Judicial Case Study: AG
for Jersey v Holley (2005)
Joanne Conaghan
Critical Introduction to Law
1 February 2011
 ‘A
feminist trial
should be a
fairer trial’
Hale, 2008)
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.
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
What do we mean by
‘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
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
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)
AG v Holley [2005] AC 580
Judicial Committee of the Privy
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
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
CA allowed appeal and substituted a conviction
for manslaughter
AG Appeal to Judicial Committee of Privy Council
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)
Was provocation sufficient to make a
reasonable man react as D did?
The gravity of the provocation
What constituted a reasonable standard of selfcontrol in those circumstances
Reasonable man: a person of ordinary selfcontrol (R v Camplin (1978)) – an objective
standard of self-control
Diminished responsibility – alternative defence to
accommodate ‘mental abnormality’
 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
Judicial Disagreement
Luc Thiet Thuan 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)
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’
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.
Why is this decision of interest
to feminist scholars?
Men often invoke defence of provocation in context of killing wives or
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).
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 the CA 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 selfcontrol.’
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.
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’
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
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’
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)
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?