Criminal Defence Matters: 2. Julia Dick on Women and the Law on Provocation

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An occasional series in which criminal defence lawyers talk about a case which shows why criminal defence matters.

Julia Dick was a criminal defence barrister for many years. Together with Vera Baird QC, she represented several women appealing convictions for murder after killing their violent partners. In 1999 they successfully represented Diana Butler at her appeal after she had been convicted of murdering her partner.

Diana was in an abusive relationship with her partner, Roger. For several years he had been violent and sexually abusive to her. One evening they had an argument. Roger hit Diana and dragged her around the house. She was frightened for her safety but he did not stop. She picked up a knife and stabbed him.

In December 1998 Diana was convicted of murder and sentenced to life imprisonment. Diana’s case was taken up by the organisation Justice for Women which was campaigning over the failure of the law to deal effectively with men’s violence against women and in particular on behalf of battered women who kill.

At that time, provocation as it was then defined was male biased.  It was a defence of killing in anger and it didn’t help women who killed out of fear and the accumulated despair of repeated provocation.  On the contrary, with its incorporation of the need for a “sudden and temporary loss of self-control” it was successfully used by men who had killed their female partners because e.g. “she was having an affair” or “the baby wouldn’t stop crying”.

Women were stuck in a male centred legal system which didn’t always fit the facts of alleged criminality in the context of an abusive relationship.  The law of provocation had been designed almost to deal with the old-fashioned honour killings between men to allow men whose dignity had been wounded to be exonerated.

There had been several important cases prior to Diana’s.  Sara Thornton, Kiranjit Ahluwalia and Emma Humphreys, had all successfully appealed against their convictions for murder with the help of Justice for Women. Each of these cases had extended the definition of what constituted provocation to allow the court to take into account the cumulative effect of years of abuse.  But they also demonstrated that the law had to change.

Vera and I were asked whether there was any basis for an appeal in Diana’s case. We took the view that her trial had been flawed and launched an appeal.  Much of the history of abuse had not been put before the jury and other grossly prejudicial and irrelevant material had been allowed in.

Diana’s appeal was successful. She had a re-trial in July 1999. After she had given evidence at the trial, the prosecution agreed to accept a plea of guilty to manslaughter. She was sentenced to three years’ probation.

It was our experience in working to overturn the convictions of women like Diana that they had often been ill served at their original trials   In many such cases, these defendants had no experience of the criminal justice system, and during their trials there had been an insufficient understanding of domestic violence.  This meant, for example, that often not enough time and trouble was taken to investigate the background and context to present the jury with the full picture.

We found gender bias in the field of self-defence too.  There was often a lack of recognition of self-defence scenarios. Women defendants often did not present themselves as classic “self-defence” defendants and lacked confidence that they did what was necessary to prevent themselves from serious harm. Rather they were more likely to be remorseful and depressed.  They often used a weapon against an unarmed but much physically stronger and more powerful man more experienced in using violence.

Justice for Women did a brilliant job in raising awareness about the injustice of these kinds of convictions.  They held demonstrations and petitions and kept the issue at the forefront of the public imagination. At the same time, superb and courageous lawyers including Vera Baird QC and the late Helen Grindrod QC led the legal way.

Finally, in 2009 the old definition of provocation was abolished and was replaced with a partial defence to murder of “loss of self control”.  The “loss of control” no longer has to be sudden.  It has to have a qualifying trigger which could be a fear of serious violence. The new law specifically excludes the defendant who acts out of revenge so no longer can a husband who discovers his wife’s infidelity avail himself of this defence.  On the other hand, it enables a person who kills in response to a fear of serious violence to put forward her defence rather than trying to fit it in a defence based on killings in anger.

Over the same period, society’s attitudes to violence against women have evolved due in part to the tireless efforts of campaigns like Justice for Women and others such as Standing Together Against Domestic Violence which over the last decade has pioneered a multi-agency approach to tackling domestic abuse.

There are now 144 specialist domestic violence courts specifically set up to prosecute perpetrators across England and Wales. The police and the CPS are now trained to understand that domestic violence follows “a pattern of coercive control” and is made up of a combination of sexual, psychological and physical abuse. There is a much greater emphasis on victim safety.  Hopefully too, in cases of alleged murder in a domestic setting, the courts are now much more willing to avail themselves of the body of expert evidence that has developed about the complexities of intimate relationships dominated by violence.

Of course the problems that women face in the criminal justice system, whether as defendants or complainants, are by no means behind us but the gender biased old provocation laws certainly are.

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