Policy vs Reality and the Limits of Law

One of more fascinating articles I’ve read of late is a commentary by SkepticLawyer on a developing defamation case in Australia in which a prominent anti-porn campaigner, Melinda Tankard-Reist, is threatening to sue a skeptical blogger, Jennifer Wilson, for having the temerity to pose awkward questions about Tankard-Reist’s religious beliefs and affiliations.

The back story to this case is somewhat complex but the short version is that Tankard-Reist has built her public reputation on the back a self-projected imagine as an ‘advocate for women and girls’ and a ‘pro-life feminist’, the latter being an appellation that many would consider to be a contradiction in terms, not least as Tankard-Reist spent twelve years as an ‘ethics advisor’ to a rather reactionary Tasmanian Senator, Brian Harriadine, who spent much of his putting up roadblocks in the face of what are generally thought of as more ‘traditional’ feminist issues, i.e. access to abortion. Wilson understandably believes that Tankard-Reist religious beliefs and here membership of socially-conservative Baptist church is relevent to understanding her opinions and personal motives and that this calls into question her feminist credentials.

I’m not going to attempt to arbitrate this dispute at a distance. The issue that arise at the point of intersection between conservative religious morality and the censorious instincts of some feminists when it comes to matters such as pornography are complex and often difficult to follow, although it should go without saying that defamation actions are anything but a appropriate means of unpicking such issues, regardless of the fact of this particular case.

Rather its the case that my attention was caught by SkepticLawyer’s commentary by their remarks on the subject of the limits of law and, in particular, the conflict that can arise between the principled and means-end limits to law:

Law has two sorts of limits. The first concerns what one ought to do (with law). The second concerns what it is possible to do (with law). If it is true that Melinda Tankard Reist is a conservative Christian and seeks to impose new laws on that basis, then she is engaging in the first sort of (would be) lawmaking. This is known in the trade as a principled limit to law. Jennifer Wilson, by contrast, thinks that any proposed law should be subjected to empirical scrutiny, and that regardless of what one ought to do with law, what one is able to do with law is of greater importance. This is known in the trade as a means-end limit to law.

The core of the dispute between them turns on the means-end thinker suggesting that the principled thinker is using means-end research to achieve a principled aim. Hence the allegation of deception and duplicitousness when it comes to Melinda Tankard Reist’s religious beliefs. The (allegedly) principled thinker has responded by saying no, my principles are separable from the means-end arguments I make. My means-end arguments stand or fall on their own merits.

Now I find the tort of defamation endlessly fascinating, for the reasons Legal Eagle outlines in her splendid post The Streisand Effect. However, what I find even more interesting is a limits of law stoush, because, almost inevitably, limits of law stoushes reveal something fascinating about how we make and enforce our laws.

In law, if one is going to engage in principled reasoning, it is generally unwise to recruit means-end reasoning, and vice-versa. Thinkers who blur the two almost inevitably come unstuck. This is because the means-end thinker (typically an empiricist) is looking at outcomes, while the principled thinker is looking at what is right, which is of necessity logically prior, and focusses on intent. As should be obvious, they are approaching the problem from opposite ends of the snake. Perhaps I should add at this point that only one end of the snake actually bites.

A final bit of background: the best known argument that there is a principled limit to law is that given by John Stuart Mill, in his famous ‘harm principle‘. Many modern laws are enacted with the harm principle providing considerable ‘background radiation’. Unfortunately, the harm principle is so popular because it tends to produce good outcomes, and where it fails, the failures are controllable: the bad law can be excised with a sort of legislative surgical strike (although this doesn’t happen as often as it should, these days: as Tacitus complained, many bad and unworkable laws litter the books, sporadically enforced and expensive to maintain, until, eventually, they fall into desuetude). Other influential proposals for principled limits to the law do exist: for example, the suggestion that law must eschew certain kinds of otherwise valid moral reasons and that the law must be in some sense neutral.

SkepticLawyer goes on to state, but not argue, that finding principles limits to lawmaking is an elusive task, on the sensible grounds that the argument lies in a 40,000 word MPhil thesis on jurisprudence, nevertheless I take their point as one which is not only valid but one which sheds considerable light on the nature of periodic conflicts that arise between parliamentarians and the judiciary over questions of how laws passed by parliament in debates framed in terms of principles should be interpreted when they are put into practice by the courts, an issue that resurfaces today in a Guardian article by Vera Baird on the awkward subject of status of sexual infidelity as basis for a defence of a murder charge:

Parliament made clear two years ago that sexual infidelity should not be allowed as a defence for murder, whatever the circumstances. A partner’s affair could no longer be treated by courts as a defensible reason to lose control and kill.

However, giving judgment last week, on three domestic killing appeals, Lord Chief Justice Judge ruled: “Where sexual infidelity is integral to and forms an essential part of the context the prohibition does not operate to exclude it.”

It seems that parliament says infidelity doesn’t count and the court says it does.

What Baird is saying is that, as a matter of principle, sexual infidelity should not be allowed as a defence for murder. Lord Chief Justice Judge’s position, however, is that irrespective of the principles that Parliament has chosen to lay down, if sexual infidelity is an integral element of a case then, as a matter of fact, it has to be taken into due consideration by the court.

Of these two positions, I much prefer that espouse by LCJ Judge, not least because I dislike much of Baird’sapparent reasoning, e.g.

Killing a wife for infidelity was “classic” provocation under the law prior to 2009. The courts were littered with cases in which men blamed their partner’s adultery for making them kill her.

In the case of Morgan James Smith in 1999, Lord Hoffman noted that historically one of the legal justifications for killing due to losing self-control had been finding a wife in adultery. It was regarded as “the highest invasion of property”.

While the ‘invasion of property’ argument is one that an overwhelming majority of people would today find highly objectionable, Baird’s rhetorical reference to this argument in this article is quite evidently a genetic fallacy, as should quickly become apparent if one reads Lord Hoffman’s remarks in their original context, a task that would have been made somewhat easier had Baird’s article linked to the correct page of the ruling.

The situations which were considered to be proper occasions for anger reflected the code of honour of the time. The first full judicial discussion dates from the reign of Queen Anne. In Reg. v. Mawgridge (1707) Keil. 119, a guest of the Lieutenant of the Tower of London quarrelled with his host over a woman, threw a bottle of wine at his head and then ran him through with a sword. The case was described by Holt C.J. as being “of great expectation” and was argued before all the judges. The court listed four categories of case which were “by general consent” allowed to be sufficient provocations. The first was the quarrel which escalated from words to physical assault (“by pulling him by the nose, or filliping upon the forehead”:) If the assaulted party drew his sword and immediately slew the other, it would be “but manslaughter.” The second was a quarrel in which a friend of the person assaulted joined in and gave the deadly blow. The third was where someone took the part of a fellow-citizen who was being “injuriously treated” And the fourth was killing a man in the act of adultery with one’s wife (“for jealousy is the rage of man and adultery is the highest invasion of property.”

Hoffman was, here, reflecting at some length on the historical origins and development of defence of provocation from which, if you read the full text, its perfectly evident that the ‘invasion of property’ argument had long since ceased to have any relevance at the point at which he handed down this ruling, not that this is apparent from Baird’s next paragraph:

In 2008 Justice for Women asked a senior judge why he had accepted a plea of guilty to manslaughter instead of murder, when a man had stabbed his wife in fury.

“Because it was classic provocation,” he said. “She was leaving him for another man. I would have been practically ordering them [the jury] to give a verdict of manslaughter!”‘

Lord Hoffman, again in the case of Smith, understanding that this still prevailed, said: “Male possessiveness and jealousy should not today be an acceptable reason for the loss of self-control leading to homicide.”

Somewhat characteristically for a politician, Baird revisits Hoffman’s judgement without providing the necessary context that underpins his assertions on the subject of male possessiveness and jealousy:

My Lords, I share the concern that this should not happen. For the protection of the public, the law should continue to insist that people must exercise self-control. A person who flies into a murderous rage when he is crossed, thwarted or disappointed in the vicissitudes of life should not be able to rely upon his anti-social propensity as even a partial excuse for killing. In Stingel v. The Queen (1990) 171 C.L.R. 312, for example, the accused was obsessively infatuated with a woman who had terminated their relationship. He became a stalker, following her about. She obtained a court order restraining him from approaching her. One evening after a party he found the woman in a car with another man. According to his own account, they were having sex. He went back to his own car, fetched a butcher’s knife and came back and killed the man. His evidence conformed to the standard narrative which the legal requirement of “loss of control” imposes on such defences:

“I was all worked up and feeling funny. It was like I was in a rage, almost to the stage where I felt dazed. It was like I really didn’t know what happened until the knife went into him.”

The High Court of Australia held that the judge was right to withdraw the issue of provocation from the jury on the ground that such conduct could not raise even a reasonable doubt as to whether the objective element in the defence had been satisfied. I respectfully agree. Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted upon the woman herself or her new lover. In Australia the judge was able to give effect to this policy by withdrawing issue from the jury. But section 3 prevents an English judge from doing so. So, it is suggested, a direction that characteristics such as jealousy and obsession should be ignored in relation to the objective element is the best way to ensure that people like Stingel cannot rely upon the defence.

I see nothing much wrong with Hoffman’s reasoning here because – as a matter of fact – the defendant in this particular case was not only a stalker engaged in the deliberate pursuit of an ex-partner but they also admitted to a course of action in which they left the immediate scene to obtain a knife from their own car prior to committing the murder. That, for many people, would provide sufficient evidence of premeditation to satisfy a charge of murder rather than manslaughter given that in this case was stalking an ex-partner and could have, therefore, had no reasonable expectation of fidelity – sexual or otherwise.

For me, however, this does not exclude provocation as a legitimate defence in all circumstances as such a view requires one to be blind to the fact that some people do genuinely experience a loss of control, in the heat of the moment, which can have terrible if entirely unintentional consequences, and over the years I’ve spent too much time looking at research dealing with the consequence of extreme psychological stress to be blind to that possibility.

Nevertheless, Baird continues her argument with a statement that, for me, neatly sums up the degree to which politicians can easily become divorced from reality:

And that is what this legislation attempted to do. The exclusion of infidelity as an allowable trigger for a loss of self-control defence was not because legislators thought it didn’t make both men and women angry but because it is contrary to modern public policy to allow it as a defence to murder.

Policy, I’m afraid, does not automatically alter reality, a fact that is too often lost on modern politicians but not, thankfully, on members of the judicary who deal, on a regular basis, with events taking place at the sharp end of the real world.

Lord Judge accepted that the statute does not allow infidelity to be a “qualifying trigger” capable, in law, of causing someone to lose self-control but, because all the circumstances at the time of the killing have to be examined. If infidelity is present it has to be looked at and may add to the potency of any other conduct which might cause a loss of self-control. So if there can no longer be an infidelity defence there is instead a sort of “infidelity plus” defence, notwithstanding the statute says: “In deciding whether a loss of self-control had a qualifying trigger, the fact that a thing done or said constituted sexual infidelity is to be disregarded.”

Again, LCJ Judge is asserting the primacy of material fact over policy and political ideology in seeking to arrive at a just resolution to a difficult situation and, as such, Baird’s next jibe strikes me as both churlish and rather snide.

Clearly nobody in future will assert that they lost control because of infidelity. The defence will always be “infidelity plus”. For example, she was unfaithful plus she goaded me about it.

Defence lawyer may very well seek to deploy such a defence, but the question of whether it has an merits in a particular case remains, quite rightly, a matter for the courts and for juries, even if this proves to be politically inconvenient on occasion. Such is the nature of the separation of powers and I, for one, have no wish to see that diminished, least of all by politicians.

Its at this point that Baird commits the error that SkepticLawyer outlined so expertly in their article on the Tankard-Reist case by seeking to deploy a consequentialist argument in support of a position in which she has hitherto taken an ostensibly principled line.

Lord Judge studiedly gender-neutralised his reasoning but that does not alter the context that it has been men who kill their unfaithful partners and it is still very rare that the opposite is the case.

This is true but nevertheless irrelevant in the context of specific cases as these appear before a court of law. We do not (hopefully) convict people of criminal offences on the basis of an ecological fallacy. The fact that men are statistically more likely to kill an unfaithful partner than women is not, of itself, authomatically relevant to the material facts of specific cases nor does it necessarily provide a viable basis for the framing of workable laws. Baird, by virtue of her own involvement, as Solicitor General, in the framing of this particular law, is seeking to blame the judicary for her own failings, and those of her governmental and parliamentary colleague, specifically the failure to give adequate consideration as to the practical implications of this law.

Consequently this is mainly a reversal for women, as well as a setback for parliament which intended to pass a law that recognised, like Lord Hoffman, that harmful culture must change. It should be appealed to the supreme court (though without Lord Phillips, who has already criticised the provision).

Or, perhaps, politicians should be willing to look again at these provisions and reconsider their own assumptions, not least as it not entirely without its merits or benefits in other situations.

The defence is only allowed if the conduct provoking the cause of the loss of control was “extremely grave”, gave the defendant “a justifiable sense of being seriously wronged” and would have made someone with “a normal degree of tolerance and self-restraint” lose control and kill as well. These are all far higher tests than before .

Further and importantly, women and men who kill their violent partners now have an equivalent plea if fear of serious violence made them lose self-control. The earlier law of provocation did not work for women, its basis being that the defendant was angered to kill and such women were not angry but afraid. At that time, the court of appeal was helpful, stretching the law of provocation to help, but it took this statute finally to end the appalling injustice which otherwise prevailed where angry men and women who killed their partners were acquitted of murder and frightened men and women who killed their abusers were convicted of it. This surely is new, good, clear-sighted justice and it is unaffected by last week’s judgment on the three domestic killing appeals.


The defence of provocation has come a long way since the time of Queen Anne, when it was held, in part, to be based on the notion that sexual infidelity amounted to the highest invasion of property, although only of course, if the ‘property’ being ‘invaded were female. Over the course of four hundred years we’ve moved on from archaic notions of women as chattels and possessions to considerations of the state of mind of defendant at the time of a homicide and the impact that events occurring prior to the homicide may or may not reasonably be thought to have had in influencing that state of mind and the events that ensued from it.

The underlying premise of the modern defence of provocation is that of psychological stress, and it to our growing understand of such stresses and their consequences that we need to look if we are to place the the defence of provocation and other stress-based defences on rational footing. Sexual jealously is, unfortunately, a significant stressor, however much we may dislike the moral implications of that observation and. as such, it cannot simply be wished away at the stroke of minister’s pen. That does not, however, mean that we need necessarily give equal weight to different types and source of stress in considering whether and to what extent stress-related defences are considered to be permissible or applicable to the material facts of a particular case. Although we cannot rule it out entirely, we can take the view that, all other things being equal, people should exercise a greater degree of self-restraint when subject to certain stresses while, at the same time, permitting a greater degree of latitude in the case of others, a view which translates, in practice, to practical difference in the margin of appreciation applied by the court when considering whether the material facts of a case support the defence claim to a particular line of defence, i.e. a defence of provocation by way of sexual jealousy would attract be subject to a much narrower margin of appreciation than one of fear in the face of a substantial threat of violence.

This is, in essence, the argument that LCJ Judge is making, hence his observation at paragraph 16 of the judgement in the case of Jon-Jacques Clinton:

We immediately acknowledge that the exclusion of sexual infidelity as a potential qualifying trigger is consistent with the concept of the autonomy of each individual. Of course, whatever the position may have been in times past, it is now clearly understood, and in the present context the law underlines, that no one (male or female) owns or possesses his or her spouse or partner. Nevertheless daily experience in both criminal and family courts demonstrates that the breakdown of relationships, whenever they occur, and for whatever reason, is always fraught with tension and difficulty, with the possibility of misunderstanding and the potential for apparently irrational fury. Meanwhile experience over many generations has shown that, however it may become apparent, when it does, sexual infidelity has the potential to create a highly emotional situation or to exacerbate a fraught situation, and to produce a completely unpredictable, and sometimes violent response. This may have nothing to do with any notional “rights” that the one may believe that he or she has over the other, and often stems from a sense of betrayal and heartbreak, and crushed dreams.

And he is entirely correct in his reasoning.

There are some who will happily argue that this should not have happened and, in one sense they are correct. Had parliament taken to the time to consider these issues more carefully with due to regard to the likely consequences of their efforts to rebalance the provocation defence – and it did, admittedly, need to be reframed precisely because it did too often given men an easy ride, contrary to the interests of justice – and less time overselling a principle that was always going to be unworkable in practice, then maybe this particular appeal would have been either unnecessary as the law might well have been framed in such a way as preclude its leading a judge to misdirect herself, and a jury, as the potential relevance of some of the factual evidence presented during the trial.

76. At the conclusion of the evidence Judge Smith directed herself that there was no evidence that the loss of self-control necessary for the purposes of this defence was due to one of the qualifying triggers identified in the statute. She was required “specifically” to disregard anything said or done that constituted sexual infidelity. The remarks allegedly made by the wife, challenged about her infidelity, to the effect that she had intercourse with five men were to be ignored. Removing that element of that evidence, what was left was the evidence when the wife saw that the appellant had visited the suicide site on the internet, she commented that he had “not the balls to commit suicide” and that she also said, so far as the future was concerned, that he could have the children who were then currently living with him at their home. The judge observed that she could not see that the circumstances were of an extremely grave character or that they would cause the defendant to have a justifiable sense of being seriously wrong. On this issue no sufficient evidence had been adduced. She could not find that a jury properly directed could reasonably conclude that the defence might apply. In due course she proceeded to her summing up, leaving diminished responsibility for the consideration of the jury.

77. In addressing these problems, Judge Smith did not have the advantage of the careful and detailed submissions made to us by leading counsel on behalf of the appellant and the Crown. On the basis that the remarks made by the wife had to be disregarded, her conclusion that the defence should be withdrawn from the jury was unassailable. In context, it was a characteristically courageous decision. For the reasons we have endeavoured to explain in this judgment, we have concluded that she misdirected herself about the possible relevance of the wife’s infidelity. We have reflected whether the totality of the matters relied on as a qualifying trigger, evaluated in the context of the evidence relating to the wife’s sexual infidelity, and examined as a cohesive whole, were of sufficient weight to leave to the jury. In our judgment they were. Accordingly the appeal against conviction will be allowed.

78. In the circumstances of this case, we shall order a new trial. The issues should be examined by a jury.

As a result, an option was taken off the table that, in LCJ Judge’s opinion, the jury should have been permitted to consider, one that may or may not have affected the outcome of the trial. And if you do read LCJ Judge’s account of the evidence in this particular case (paragraphs 50-78 inclusive) its clear how and why he arrived at that decision. In deciding to exclude from consideration an confontation in which the victim taunted the defendant with the graphic details of her infidelities with five men, the trial judge prevented the jury for giving due consideration to the cumulative psychological impact of the argument on the defendant.

As Baird herself notes:

The defence is only allowed if the conduct provoking the cause of the loss of control was “extremely grave”, gave the defendant “a justifiable sense of being seriously wronged” and would have made someone with “a normal degree of tolerance and self-restraint” lose control and kill as well. These are all far higher tests than before.

In the case of Jon-Jacque Clinton, the judge’s decision to exclude from consideration the heated exchange relating to the victim’s self-professed infidelities meant that the question of whether or not the circumstances leading to the death of the victim were sufficient to meet these higher tests because it was not put to jury.

Moreover, and after consulting the primary legislation, Baird’s assertion that infidelity has been excluded as a ‘qualifying trigger’ for a loss of self control is entirely misleading. Although the Act explicitly abolishes the common law defence of provocation, nowhere in the three clauses which set out the new provisions for a loss of self defence (54-56) does it explicitly exclude consideration of sexual infidelity as a qualifying trigger.

And so, what we have yet again, is a politician criticising a judge for failing to divine the intentions of Parliament in circumstances in which Parliament failed to make its intentions plain when it drafted and passed the law, i.e. its your fault for not correcting our mistakes.

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  • Mattwardman

    Excellent post, Unity. Enjoyed it very much.

    May I suggest plan B, suitable for these constrained times:

    “In Reg. v. Mawgridge (1707) Keil. 119, a guest of the
    Lieutenant of the Tower of London quarrelled with his host over a woman,
    threw a bottle of wine at his head and then ran him through with a

    Bring back duelling…

  • Thanks for the information.  As what you have stated, “The courts were littered with cases in which men blamed their partner’s adultery for making them kill her.” There are lots of cases like this and mostly husbands claimed that adultery is the reason why they have murder their wives. However, I guess it is not appropriate to kill someone because he or she cheated on you. I believe that justice will still prevail.