Coroners and Justice Bill

If the Government had the courage to abolish the mandatory life imprisonment penalty for murder, the next 15 to 20 minutes would be unnecessary. However, in the Privy Council case of the Attorney-General for Jersey v Holley, which represents the current law of England and Wales on provocation, argued in March 2005 over three days, the noble and learned Lord, Lord Nicholls, said: ""In expressing their conclusion … their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts … Their Lordships share this view. But the law on provocation cannot be reformulated in isolation from a review of the law of homicide as a whole"." What we have before us is a partial tinkering with part of the law of homicide, and not a review of the law of homicide as a whole. Nine Law Lords sat on that case. The argument raged for three days, and their Lordships divided six to three in the result. The noble and learned Lords, Lord Bingham and Lord Hoffmann, in the minority, said: ""We share the opinion, widely expressed, that the law of homicide stands in urgent need of comprehensive and radical reform"." The noble and learned Lord, Lord Hoffmann, had already observed, in the case of Smith (Morgan), that the concept of provocation has serious legal and moral flaws. I will take your Lordships back a little. Aberemord, or aberemurdrum—plain and apparent killing—was punishable by death without fine or commutation by a law of King Canute. This was one of the laws re-enacted by Henry I’s Charter of Liberties in 1100, with amendments made on the advice of the barons—which is precisely what we are engaged in today. Murdrum, or murder, was distinguished from the less heinous crimes of manslaughter, or killing by chance medley or chaud medley. These were excusable homicides. Chance medley was the accidental killing of a person in self-defence on a sudden encounter, and chaud medley was the killing of a person in an affray in the heat of blood and while under the influence of passion. The defences of self-defence and provocation developed out of these ancient concepts in the times of Restoration gallantry, when, as the noble and learned Lord, Lord Hoffmann, put it, ""gentlemen habitually carried lethal weapons and acted in accordance with a code of honour, which required insult to be personally avenged by instant angry retaliation and in which the mandatory penalty for premeditated murder was death. To show anger ‘in hot blood’ for a proper reason by an appropriate response was not merely permissible but the badge of a man of honour"." In 1707, in a case called Mawgridge, 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 ran him through with a sword. The case was described by Chief Justice Holt as being "of great expectation" and was argued before all the judges. The court listed four categories of case which in those days were, "by general consent", allowed to be sufficient provocations. The first was the quarrel which had escalated from words to physical assault— ""by pulling him by the nose, or filliping him upon the forehead"—" and 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 the killing of a man in the act of adultery with one’s wife. The reason given was: ""for jealousy is the rage of man and adultery is the highest invasion of property"." I hope that by now the Committee may be beginning to think that the origins of provocation as a defence were just a little dubious. In those days, anger was thought to be right and proper and a killing in hot blood, caused by one of these four provocations, was, in principle, justified; otherwise, it was the gallows. Nineteenth century Victorian judges sought to mitigate the harshness of the ancient common law requiring sentence of death. They generalised the four specific provocations to which I have referred into a broader rule which would permit a provocation to reduce murder to manslaughter, but with a safeguard that whatever the alleged provocation, the response had to be reasonable. In Kirkham, in 1837, Mr Justice Coleridge told the jury that, ""though the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being, and requires that he should exercise a reasonable control over his passions"." The reasonable man made his way onto the stage in the case of Welsh in 1869 in which Mr Justice Keating said that provocation would be sufficient if it were, ""something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act."" So provocation was no longer a justification but an excuse. The question posed was: was the provocation something which temporarily deprived the accused of his reason? Of course, in late Victorian times, no one knew anything about how the mind works or the relationship between emotion and rationality. As the common law developed, in Duffy, in 1949, the gist of the defence was encapsulated by Mr Justice Devlin in a single sentence in his summing up, which was afterwards treated as a classic direction to the jury. He said: ""Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind". " That was the standard direction given to juries in 1949 and thereafter. The Committee will notice the reference to "acts"—words were not enough, however insulting. So on the recommendation of the Royal Commission on Capital Punishment, which sat from 1949 to 1953, the common law was amended, but not repealed, by Section 3 of the Homicide Act 1957, so that the loss of self-control could be triggered not only by things done but by things said, and not necessarily done or said by the victim. Section 3 said: ""Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man"." So we have the concepts of loss of self-control and the standard to be judged against the reasonable man. The concept of measuring the conduct of the accused against the reaction of a hypothetical reasonable man caused great difficulty. Luc Thiet Thuan, a case in the Privy Council in 1997, in which I appeared for the appellant, was a case where the defendant suffered from organic brain damage at birth, which gave rise to epileptic attacks. The provocation from his former girlfriend was that she compared him unfavourably to her new boyfriend, and said that he was so quick that he was like a newspaper delivery boy. Certainly, he lost his self-control. The question was whether, in fairness, he should be compared to a hypothetical reasonable man, from whom all attributes except sex or age had been removed, or to a reasonable man suffering from brain damage. What was fair? Their Lordships divided. The noble and learned Lord, Lord Steyn, delivering a powerful dissenting judgment, which was later followed in the English Court of Appeal and confirmed in the case of Smith (Morgan) in the House of Lords by a majority of three to two, found in favour of the comparison with a reasonable man suffering from brain damage—notwithstanding that the decision gave rise to what the noble and learned Lord, Lord Hoffman, described as "monsters", such as the reasonable obsessive, the reasonable depressive alcoholic and even the reasonable glue-sniffer. In deference to the decision of the House of Lords in Smith, the Judicial Studies Board issued specimen directions to the judges in respect of provocation, based on the Smith decision, and juries were so directed after 2001. Then, in the case to which I referred earlier—the Attorney-General for Jersey against Holley—the Privy Council, by a majority of six to three, rejected the view of the noble and learned Lord, Lord Steyn, in Luc, although the minority, led by the noble and learned Lord, Lord Bingham, would have followed him. By now your Lordships will appreciate the degree of discussion and consideration of these issues that have divided the senior courts of this land—the House of Lords and the Privy Council. In December 2005, in the case of James and Karimi, five judges sat in the Court of Appeal and held, unusually, that the principle set out by the majority in the Jersey case was correct, although it was a decision of the Privy Council, and that the House of Lords decision was not to be followed. In the meanwhile, the Law Commission was tasked to look at the law of murder and to make recommendations on the partial defences of provocation and diminished responsibility. Its 2004 report concluded: ""The term loss of self-control is itself ambiguous because it could denote either a failure to exercise self-control or an inability to exercise self-control. To ask whether a person could have exercised self-control is to pose an impossible moral question. It is not a question which a psychiatrist could address as a matter of medical science, although a noteworthy issue which emerged from our discussions with psychiatrists was that those who give vent to anger by ‘losing self-control’ to the point of killing another person generally do so in circumstances in which they can afford to do so. An angry strong man can afford to lose his self-control with someone who provokes him, if that person is physically smaller and weaker. An angry person is much less likely to ‘lose self-control’ and attack another person in circumstances in which he or she is likely to come off worse by doing so. For this reason successful attacks by an abused woman on a physically stronger abuser take place at a moment when that person is off-guard"." In summary, the Law Commission stated that, ""the requirement of loss of self-control was a judicially invented concept, lacking sharpness or a clear foundation in psychology. It was a valiant but flawed attempt to encapsulate a key limitation to the defence—that it should not be available to those who kill in considered revenge"." The Law Commission concluded that a positive requirement that the accused had suffered a loss of self-control was unnecessary and undesirable. Then there was extensive consultation. Everyone who could be consulted on this was consulted. The Law Commission came back with its report, Murder, Manslaughter and Infanticide, published in November 2006, where it revisited this area, and stated: ""The requirement of a loss of self-control has been widely criticised as privileging men’s typical reactions to provocation over women’s reactions. Women’s reactions to provocation are less likely to involve a loss of self-control as such and more likely to be comprised of a combination of anger, fear, frustration and a sense of desperation. This can make it difficult or impossible for women to satisfy the loss of self-control requirement, even when they otherwise deserve a partial defence"." So the Law Commission, in its new recommendation, did not seek to resurrect the requirement of loss of self-control. It pointed to research that showed that in cases where provocation has been pleaded, although there may be uncorroborated evidence that the killing took place in anger, evidence of the loss of self-control, which the law requires, was much harder to find. I have given that historical introduction for us to consider what is a dog’s breakfast of an attempt to reform the law on provocation—that is Clause 44. What do we see there? Despite the recommendations of the Law Commission after extensive consultation, Clause 44(1) is predicated on the idea that the defendant’s, ""acts or omissions in doing or being a party to the killing resulted from D’s loss of self-control"." The loss of self-control is to have a "qualifying trigger". Then the reasonable man is brought into the picture: subsection (1)(c) asks whether, ""a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way"." Despite the clear recommendation of the Law Commission, despite all the qualifications that have been expressed and the diverse opinions that have appeared in the courts, the Government, in attempting this partial reform of the law of murder, have introduced loss of self-control as its central feature. Clause 45 states that a, ""loss of self-control had a qualifying trigger"—" I do not know whether that word has appeared in anything other than a statute referring to arms before— ""if subsection (3), (4) or (5) applies"." Subsection (3) states: ""This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence"," from the victim against the defendant or another identified person. The concept could be expressed in a different way and is no doubt valid, but in the context of the clause it does not assist. Subsection (4) states: ""This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which—""(a) constituted circumstances of an extremely grave character"." What on earth is that supposed to mean? Then you come to paragraph (b), which says, ""caused D"—" the defendant— ""to have a justifiable sense of being seriously wronged"." Nothing in this part of the Bill reverses the burden of proof. It is for the prosecution, therefore, to disprove that the circumstances were of an extremely grave character and that the defendant had a, ""justifiable sense of being seriously wronged"." How does it do that? The clause is silent. Subsection (6) contains qualifying triggers, but there are exceptions. The first, paragraph (a), is that the defendant’s, ""fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said"." Paragraph (b) says that, ""a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said"," Finally, the subsection refers to, ""the fact that a thing done or said constituted sexual infidelity"." Again, what is that supposed to mean? I recall a case in which the noble Lord, Lord Carlile, and I were involved. I prosecuted and he defended. A young man was in a relationship with an older man, but he also had a girlfriend. The provocation came when the older man said to the younger man, "If you do not do whatever we do together again, I will tell your girlfriend". That was the provocation. He was stabbed 70 times. It certainly showed a loss of control. My noble friend Lord Carlile—as so frequently, although not always—was successful. The jury returned a verdict of not guilty of murder but guilty of manslaughter. I can think of another case in which I was involved in which a person fired a revolver. He struck two people with two bullets but there were four bullets left in the gun. The Court of Appeal held that he had not lost self-control as, if he had done, he would have fired all six bullets. There was no case of provocation, therefore, as it could not be shown that he had lost his self-control. This is all nonsense. It is derived from antique law and it has been mangled in the process of producing this Bill. I was not here last week, for reasons that my noble friend chose to tell your Lordships; I will talk to him later about that. You have to compare this with the elegant amendment that was moved on that occasion by the noble and learned Lord, Lord Lloyd, in which these concepts of loss of control of the reasonable man were removed. The law of murder, if we are not to have it completely revised, as we would wish, was made a little more sensible. I beg to move.