Coroners and Justice Bill

The encyclopaedic exegesis of the law of provocation by the noble Lord, Lord Thomas, has lifted a heavy burden from my shoulders and enabled me to be uncharacteristically brief. Despite the fact that we have a large number of amendments to this clause, our amendments on loss of control as a partial defence to murder are designed to make the defence easier to apply. These amendments are a mixture of suggestions and of policy—and indeed probings—to find out exactly how the Government imagine the new partial defence might apply. The essential point is that there should be a gross provocation—that is contained in our Amendment 163A—that triggers the killing. The amendment on its own does not refer to any time period and so would not prevent the defence from being used in so-called slow-burn cases. If the provocative behaviour that caused the loss of control was so egregious as to allow the defence to be raised, it would not matter how immediate it was before the killing. However, the requirement that the provocation be gross would mean that the loss of control must be sudden and in response to that behaviour. Our Amendment 164A concerns the role of revenge. The view that the defence would be justified only when there was a sudden loss of control makes it hard to square with the notion of revenge. Indeed, the Government have recognised that the motive of revenge would prevent the defence from being raised in the first place. Curiously, however, they have qualified the sort of revenge that would be unacceptable. Only considered revenge would exclude the defence. That raises the question of what sort of revenge would be compatible with using the defence—presumably, unconsidered revenge. Quite how it will be determined in court and what degree of consideration is valid or, indeed, invalid are unclear. This seems to be a case of legislative drafting that is destined to exercise the judiciary’s minds for many years to come. Our amendment would remove this qualification. The Bill would then exclude any action taken in revenge being defensible. This would mean that people who killed in cold blood would never be able to raise the defence of loss of control. However, a defendant who could show that there was a gross provocation that triggered his loss of control would still have the benefit of a heat-of-the-moment defence. Amendment 165A refers to trial procedures. Its gist is to make the defence available even if the circumstances were adduced by someone other than the defendant. Amendments 169A, 169D, 169E, 169F and 169G are probing amendments to find out exactly what behaviour the Government consider would trigger the defence. Finally, Amendments 168A, 168B and 168C probe the proximity of the offence to the cause. We believe that this is a crucial issue. The defence of provocation has been reworked into the partial defence of loss of control, which has a qualifying trigger attributable to the fear of violence against the defendant by his victim. One of the key issues behind this is the concern that battered women are not able to claim the current defence, despite ongoing violence to them—in other words, the slow-burning fuse. We quite accept that this is a problem that needs to be addressed in the criminal law; but how long can the fuse be while still forming the qualifying trigger? "Reasonably proximate" does not mean that all the relevant events must be immediate to one another; but it sets out a test of what can be considered to qualify. The amendments simply ask what natural limit there will be between the offence and prior events that have caused the defence to be adduced.