Dr Nicola Wake1
1Northumbria University, Northumbria University, United Kingdom
This paper provides a critical review of the newly proposed sentencing guideline (E & W) for manslaughter by loss of control, in the context of domestic abuse victims who kill the abuse perpetrator. One of the driving factors for repeal and replacement of provocation with loss of control was the need to better accommodate victims of domestic abuse who eventually resorted to lethal violence to escape that abuse. The partial defence of provocation previously failed to adequately address the impact of domestic abuse, and coercive and controlling behaviour on victims of abuse in the trial process. By introducing a fear of serious violence limb under the loss of control defence, the new partial defence was designed to be better aligned to the circumstances of domestic abuse victims who kill. Unfortunately the newly proposed sentencing guideline in England and Wales risks repeating sins of the past in three fundamental ways. These include the proposed policy against “double counting” factors used to assess whether loss of control applies at the sentencing stage, with specific emphasis on “mental disorder” (and “battered spousal syndrome”) as a relevant factor; the failure to address power imbalances in the culpability assessment at step one of the proposed process; and, the lack of specific guidance relating to the relevance of domestic abuse as aggravating/mitigating factors in cases involving victims who kill their abuser. The paper reflects on these sins of the past, and advances proposals for the future development to these proposed directions.
Dr Nicola Wake is Associate Professor of Law at Northumbria University. Her specialist research interests focus on mental condition defences.