Criminal Justice and Immigration Bill

I have no objection to the addition that the noble Lord suggests; it is correct. However, I do not agree with what he said about the two judgments that he cited, the last being that of the noble and learned Lord, Lord Woolf, in the Martin case. I sought to demonstrate to Members of the Committee on Monday evening that there are two different and distinct currents of authority. The case of Palmer, from the Privy Council judgment of Lord Morris in 1971, is cited in the 2008 edition of the leading textbook on criminal law, Archbold, at paragraph 19/41: "““If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly and instinctively thought was necessary, that would be most potent evidence that only reasonable defensive action had been taken””." That is different from the approach of standing back, which the cited passage of the noble and learned Lord, Lord Woolf, leads to. Looking at it with cool detachment, you take the circumstances as he believes them to be; as an easy example, he thinks he is being attacked by three people when there is in fact only one. You also take account of what he thought that he had to do to protect himself against the peril which he thought existed. For that purpose you look into the mind of the accused. Unless I am getting it wrong, my learned friend the noble Lord, Lord Thomas of Gresford, would not look at it that way. One particularly does not want to re-hear the Martin case here, but the fact is that psychiatric evidence was tendered in the Court of Appeal to the effect that the defendant was particularly sensitive to the danger of being attacked owing to his circumstances, life and mind. He had a heightened degree of awareness—or fear—of such an attack; indeed, his premises has been attacked six times. However, that psychiatric evidence was ruled inadmissible for self-defence. It was, however, treated as good evidence for an entirely separate purpose: to show that the accused had diminished responsibility and was therefore not guilty of murder, only of manslaughter. The practical effect of the case was that with a verdict of manslaughter the tariff was five years’ imprisonment, and as Martin had already been in for four years, he got out after one year. If the evidence had been held admissible and applicable in the law of self-defence, that would have constituted a complete defence for the whole charge and he would have walked out of court immediately as an innocent man. Therefore, which test is applied makes a difference. In agreeing with the language of the noble Lord, Lord Thomas of Gresford, I would not like any future reader of the report of this debate to think that he was right in what he said about the operative test.