Reforming defences to domestic homicide to achieve just outcomes for women who kill their abuser

16 June 2026

Introduction

Shaw Graham Kersh LLP act for women who commit domestic homicide, both at first instance and on appeal. Murder is always wrong, however, legal defences can be relied upon when a homicide is committed as a consequence of self-preservation, or when an individual is mentally unwell and acts at the relevant time because of and as a consequence of their illness which reduces their culpability in law. Through our work at Shaw Graham Kersh LLP, it is evident to us that women who kill whilst responding to violence by their abusive partners and when acting in self-defence (a complete defence to a criminal charge, including murder) or as a consequence of a “loss of control” or an inability to “exercise self-control” (loss of control and diminished responsibility being partial defences to murder “reducing” murder to manslaughter) face difficulties when seeking to rely on these legal defences and justice is as a consequence miscarrying. There are a range of reasons for this, to include that the defences, in particular loss of control and diminished responsibility, have traditionally been defined and operationalised based on male forms of reaction and not female reactions which are affected by women’s experiences as victims which are rooted in trauma and violence. ^[1]

On Monday 8 June 2026, Shaw Graham Kersh LLP was invited to attend an expert meeting convened by Northumbria University at Newcastle. Academics at the University are working closely with the Centre for Women’s Justice (CWJ) and others and are reviewing the wider aspects of the defences to domestic homicide and advocating reform. The meeting provided an opportunity for those who attended to collectively consider these issues.

The limitations of the defences available to women who kill as a consequence of domestic abuse are not confined to domestic law in England and Wales. Other jurisdictions face the same difficulties. Some jurisdictions have enacted various reforms to help secure just outcomes for women. It is evident that reform is needed to our law. In this context, the Law Commission of England and Wales is currently reviewing homicide ^[2] and specifically:

1. Whether the existing defences to murder and denials of liability operate satisfactorily.
2. Whether existing defences need to be reformed or a new bespoke defence(s) created.
3. How evidence and procedural rules operate from the investigation up to and including the trial and whether these are in need of reform.

The meeting at Northumbria University was, therefore, a unique and timely response to the issues under consideration by the Law Commission.

Reforming defences to domestic homicide to achieve just outcomes for women who kill their abuser

The meeting began with an in-person presentation by Harriet Wistrich, CEO of the CWJ. This was followed by a pre-recorded discussion between Harriet and Clare Wade KC looking at how the current defences work in practice, what alternative models exist and what pitfalls must be avoided in future reforms. Clare Wade KC is a leading Silk whose expertise includes female domestic homicide at both trial and appellate level and in wider policy and reform contexts (see below).

Recapping on her groundbreaking Domestic Homicide Sentencing Review which was commissioned by the Government following years of campaigning by the CWJ and other feminist campaigners to establish whether the current law and sentencing guidelines were fit for purpose and to identify options for reform, Clare reminded us that as well as reviewing sentences in domestic homicide cases she was also tasked with reviewing the law and specifically the defences available in domestic homicide cases, but such a review was too large and had to be confined to sentences only.

Upon completion of her Domestic Homicide Sentencing Review, which was published on 17 March 2023, in addition to her recommendations relating to sentences which in the event were largely adopted, Clare recommended a review of the homicide defences. In the Government’s Response which was presented to Parliament in July 2023, her recommendation was accepted.^[3]

The Law Commission of England and Wales was duly commissioned to conduct a review of defences to domestic homicide. However, this discrete review was subsequently incorporated into a wider review of homicide.^[4]

Whilst a review of homicide law is welcome^[5], the holistic review which the Law Commission will now undertake has unintended consequences for women in that it has:

• slowed down the long called for and awaited review of domestic homicide defences when relied upon by women;
•  resulted in the defences in the context of female “perpetrators” being subsumed by a review of homicide in general;
• de-prioritised the urgent recommendation put forward by Clare Wade KC in her Domestic Homicide Sentencing Review (which had originally included a review of defences, but which as noted was not possible to conduct at the time).

With respect to the current loss of control defence pursuant to section 54 of the Coroners and Justice Act 2009, we were reminded that these provisions abolished the common law defence of “provocation” which was widely recognised as not working for women especially in the context of the cumulative impact of domestic violence and abuse. The long-standing concern relating to this failing was highlighted in the case of Kiranjit Ahluwalia^[6] whose murder conviction was quashed by the Court of Appeal in 1992 and substituted with manslaughter on the grounds of diminished responsibility. The case was and remains hugely significant both in terms of the development of the law which recognised the impact of cumulative abuse and in building upon the campaign lead by feminist campaigners, including the Southall Black Sisters, who had demanded the abolition of provocation and the introduction of a new partial defence for women who kill as a consequence of a justifiable “fear of serious violence”. The Law Commission subsequently went on to recommend reform in keeping with what was demanded by the campaigners.

The Law Commission’s recommendations were accepted by the Government, however, during the second reading of the proposed Bill before Parliament which incorporated the new defence, “fear of serious violence” was considered too broad and although opposed by some during the reading, the defence was changed and section 54 of the Coroners and Justice Act 2009 was enacted resulting in the three limbed loss of control defence.^[7]

Whilst the new loss of control defence was meant to improve the position for women it in fact did not.

Clare and Harriet discussed the difficulties with each limb of the defence.

• First, before the defence can be left to jury, the requirement that there has been a loss of control has to be determined by a Judge. It is the judiciary therefore - largely white, male and middle class - who is the gate keeper of the defence. This is not satisfactory. Another difficulty in this context is that domestic homicide takes place in the home where there are no witnesses and women’s memories of events are often impaired or absent which impacts upon the evidential requirement.
• Secondly, the reference to a “considered desire for revenge” which precludes loss of control and which features in jury directions worryingly undermines the defence when relied upon by women who experience social entrapment a concept which is not understood and which does not form part of the trial narrative.
• Finally, the objective test is left to the jury but without being contextualised by the subjective experiences of women who kill in domestic settings following years of abuse.

It was troubling to hear that in her experience, Clare knows of only two cases where the loss of control defence was successfully relied upon by women who faced murder charges arising from a loss of control following domestic abuse and coercive and controlling behaviours by the deceased. The underlying purpose of the loss of control defence in such cases: recognising culpability but reducing it from murder to manslaughter in the circumstances, is not being achieved. Justice is being denied.

Clare and Harriet then turned to the defence of self-defence, a defence very different to the loss of control defence in that loss of control requires intent whereas self-defence does not. Self- defence also differs in that it requires an immediate and proportionate response to a threat as opposed to a sudden violent outburst as a reaction to a “qualifying trigger”.

Both defences: self-defence and loss of control, are often advanced by women in domestic homicide cases: self-defence being positively relied upon and loss of control being left to the jury pursuant to a defence application (in our experience trial judges rarely acceded to such applications). The recent jurisprudence from the Court of Appeal reflects the position of the CACD which is that the two defences are inconsistent and as a consequence mutually exclusive.^[8] This poses a major stumbling block for women.

In some cases, when women encounter amnesia, neither defence can be positively advanced. In such circumstances, women can only assert a lack of intent, or where alcohol is at play but short of a disorder, that they lacked the ability to form the required mens rea. In our experience the defences are left to the jury in in such cases, but don’t succeed.

With respect to diminished responsibility^[9], Clare and Harriet considered the limitations of this defence in relation to women who kill. The discussion centred on mental illnesses women experience. These are almost always rooted in adverse childhood and adolescent experiences involving sexual and other forms of abuse, other traumas, domestic abuse and coercive control. The illnesses which are caused as a result of such experiences do not from a diagnostic perspective “neatly” fit with the statutory requirement of a recognised medical condition and when they do, Post Traumatic Stress Disorder (PTSD), Complex-Post Traumatic Stress Disorder (C-PTSD), Major Mood Disorder (MMD), Personality Disorder (PD) and dissociation, unlike schizophrenia, are not considered strong enough to satisfy the third and fourth limbs of the defence: the mental illness caused significant impairment, and either caused or significantly contributed to the killing.

Addiction is a complicating factor. Prosecutors use addiction to undermine women and the defences relied upon. Addiction as a corollary of mental ill health and not a cause, alongside other environmental factors, are often not contextualised by the defence.

Clare and Harriet turned to the case of Lisa Ellwood. At her trial, the Crown Court judge refused to admit the evidence of the psychologist whose expert view was that on balance Lisa Ellwood’s responsibility for the killing was diminished. Her appeal will be before the CACD on 26 June 2026 and will consider whether specialist and expert views of psychologists can be relied upon in diminished responsibility cases. At present their evidence is not admissible, the Court of Appeal preferring the evidence of psychiatrists.

As an example of the other discriminatory laws beyond England and Wales, Clare and Harriet discussed a French case: Alexandra Richard v France^[10]. Under French law, self-defence (Article 122-5 of the Criminal Code), requires a reaction to be a strictly proportional, simultaneous and absolutely necessary response to an imminent attack. When a battered spouse kills an abuser during a non-confrontational moment, the law does not recognize it as self-defence. This is being considered by the ECHR, and the discriminatory nature of the law is being challenged.

Turning more positively and to reform, Clare explained she would like to see reform encapsulating “self-preservation” with a model of “social entrapment” which is what she considered was intended with the introduction of the loss of control defence pursuant to section 54 of the Coroners and Justice Act 2009, but which was not achieved. We now have a better understanding of the impact of coercive control and if entrapment can be written into law Clare’s view is that this would help juries understand what is going on in a particular dynamic. In short, as well as looking at how a woman is behaving and the mechanism of the act at the relevant time, the jury need to look at why she is behaving in such a way. Background is all important. Vulnerabilities need to be considered. Feminism is engaged. Reform has to push the envelope. Avoiding a defence that is reduced to a tick list is paramount. The current defences all have a tick list which are not contextualised. The bigger context is all important. Getting the wider issues into the public realm is another challenge but work is going on in this context.

Black, minoritised and migrant victim-survivors - additional barriers to justice and measures to overcome these

Pragna Patel and Rosie Lewis, Co-directors of Project Resist, gave an in-person presentation on black, minoritised and migrant-victim survivors and the additional barriers to justice they face and measures to overcome them.

Pragna and Rosie set out why they support expansive reform with a holistic defence model based on the [social] entrapment model which will serve to overcome current barriers to justice which include cultural phenomena and the intersectionality of race, class and sex and have an historical context. They advocate for reform which allows for the specificity of cultural issues which will be fact specific, to include for example both language and dialect, and which can overcome race, class, sex and other barriers faced by women in the criminal justice system and beyond.

As well as greater weight being placed on internal and external factors, Pragna wants reform to include the setting in context of any structural failures by the state, including state acts and omissions.

Applying lessons from experience with a “social entrapment” lens

Professor Nicola Wake, recently elected president of the Society of Legal Scholars (2027-2028) who has been researching defence frameworks for victims of abuse who offend for over 15 years and who has advanced novel proposals based on comparative legal research and who works closely with the CWJ campaigning to change the law, and Professor Vanessa Bettinson, a Vice Chancellor Fellow and an expert in criminal law and justice response to domestic abuse and coercive control, gave in-person presentation with a focus on applying lessons from experience with a “social entrapment” lens.

In terms of reform, their work has involved a comparative legal analysis of the range of reforms in other jurisdictions including Australia to those in England and Wales. Jurisdictions are learning from each one another about best practice hence the significance of their comparative approach and reflections.

We learnt that in Australia law reform has resulted in family violence evidence provisions to expressly allow evidence from experts, such as social workers and domestic abuse practitioners, and mandatory jury directions about the relevance and importance of such evidence in domestic homicide cases (and other non-homicide cases). Professors Wake and Bettinson argue such provisions are important because without them gendered stereotypes, myths and misunderstandings about the nature and effects of domestic abuse continue to influence decision makers when assessing elements of the defences and they require decision makers to assess facts according to conceptualisations of domestic and other forms of abuse that are consistent with social science research. This affects how a defendant’s subjective beliefs are understood and how determinations of responses in the circumstances as perceived by them are reached and whether in such circumstances they are reasonable, in the context of self-defence.

They argue for similar reform to the law in England and Wales^[11] and advocate strongly in favour of the introduction of Domestic Abuse Context Evidence (DACE) provision designed to accompany existing defence frameworks and reform frameworks as necessary where domestic abuse is or may be relevant. It is proposed that the provision is inserted into current law: the Domestic Abuse Act 2021.

DACE would apply when a complete defence or a partial defence is advanced at trial – or left to the jury, and evidence of domestic abuse is or may be relevant to determining whether the accused acted in accordance with the requirement of the defence. The defence can request DACE, or the trial judge can leave DACE to the jury even if not requested by trial counsel.

A DACE direction may be required in the following circumstances:

1. a defence or partial defence, as the case may be, is likely to be in issue in the trial and evidence of domestic abuse may be relevant to determining whether the accused acted in accordance with the requirements of the defence, and
2. the defendant or their representative requests at any time that the trial judge direct the jury on domestic abuse evidence if the trial judge considers that it is in the interests of justice to do so; or
3. if a direction is not requested, the trial judge may give the direction at any time during trial if the trial judge considers that it is in the interests of justice to do so.

Where a DACE direction is required the trial judge:

• must give the direction as soon as practicable after the request is made; and
• may give the direction before any evidence is adduced in the trial; and
• may repeat a direction under this Part at any time in the trial.

Professors Wake and Bettinson also propose in conjunction with DACE additional directions at trial to include, for example:

• people may react differently to domestic abuse and there is no typical, proper or normal response to domestic abuse;
• it is not uncommon for a person who has been subjected to domestic abuse to stay with an abusive partner after the onset of domestic abuse, or to leave and then return to the partner;
• it is not uncommon for a person who has been subjected to domestic abuse not to report domestic abuse to police or seek assistance to stop domestic abuse for reasons including, but not limited to, not being aware they are a victim, being unable to communicate the impact of the domestic abuse, shame and/or fear of the consequences associated with reporting abuse;
• decisions made by a person subjected to domestic abuse about how to address, respond to or avoid domestic abuse may be influenced by a variety of factors;
• it is not uncommon for a decision to leave a domestic abuser, or to seek assistance, to increase apprehension about, or the actual risk of, harm;
• evidence that the accused assaulted the victim on a previous occasion does not mean that the accused could not have been acting in accordance with a defence or partial defence, as the case may be, in relation to the offence charged.

Furthermore, the professors propose that the trial judge may also indicate that decisions made by a person subjected to domestic abuse about how to address, respond to or avoid domestic abuse may be influenced by such things as the following:

• the domestic abuse itself;
• social, cultural, economic or personal factors, or inequities experienced by the person, including inequities associated with (but not limited to) race, poverty, gender, disability or age;
• responses by family, community or agencies to the domestic abuse or to any help-seeking behaviour or use of safety options by the person;
• the provision of, or failure in the provision of, safety options that might realistically have provided ongoing safety to the person, and the person’s perceptions of how effective those safety options might have been to prevent further harm;
• further abuse, or the threat of further abuse, used by a family member to prevent, or in retaliation to, any help-seeking behaviour or use of safety options by the person.

Attendees were given the opportunity of discussing in groups what proposed reforms they seek and whether a new bespoke defence is required. The consensus was in support of DACE and reform to the defences based on an entrapment model.

A further expert meeting is planned later in the year.

Conclusions

Any reform to the current defences which puts a woman’s journey of self-preservation at its core in order to secure justice for women is urgently needed. The work of the University of Northumbria, the CWJ and others is critical to reform and will be vital to the work of the Law Commission of England and Wales when they come to make their proposed recommendations. Shaw Graham Kersh LLP will continue to support and contribute to this vital work to secure justice for the women we represent and all other women.

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[1] Academic research supports this. See https://essl.leeds.ac.uk/law/news/article/2383/dr-laur-ne-soubise-tackles-loss-of-control-defence-in-law-commission-review-of-homicide

[2] https://lawcom.gov.uk/project/law-of-homicide

[3] https://assets.publishing.service.gov.uk/media/64b802acef537100147aeeee/domestic-homicide-sentencing-review-case-review-response.pdf

[4] https://www.gov.uk/guidance/domestic-homicide-sentencing-review

[5] https://lawcom.gov.uk/project/law-of-homicide/

[6] [1982] 4 ALL ER 889

[7] https://www.legislation.gov.uk/ukpga/2009/25/part/2/chapter/1/crossheading/partial-defence-to-murder-loss-of-control

[8] R v O’Shaughnessy [2026] EWCA Crim 141

[9] https://www.legislation.gov.uk/ukpga/Eliz2/5-6/11/section/2

[10] Application number 34118/25, Application title Richard v. France, Date of Introduction 21/10/2025

[11] Crofts, Bettinson and Wake, ‘Anglo-Australian Approaches to Self-Defence in Domestic Abuse Contexts: Embracing Social Evidence Provisions’ (2026) Journal of International and Comparative Law (publication pending)