Coroners and Justice Bill

I am happy to take that course. I start, as the noble Lord, Lord Thomas, did, with the present law of provocation, which must provide the necessary background to what is now proposed. I hope to show that the current law is fair and well understood by the judges, which is an important consideration, as well as being easily applied by juries. I shall then look, as the noble Lord, Lord Thomas, did, at the Law Commission report, published in 2006. Some of its proposals on provocation are controversial, as it accepted itself. But at least the proposals as a whole make sense and hang together, as one would expect. By contrast, the Government’s proposals, as set out in Clauses 44 and 45, are all over the place. The most serious defect lies in their structure. However, that is not the sole defect. Much of the wording is unsatisfactory. What is a jury to make of the phrases, already referred to by the noble Lord, Lord Neill, ""circumstances of an extremely grave character"," and, ""a justifiable sense of being seriously wronged"?" Why should we exclude sexual infidelity from a jury’s consideration? Is Parliament really to say that sexual infidelity can never give rise to a justifiable sense of being seriously wronged? Surely not. That must be a question for the jury. If we enact the two clauses in anything like their present form I foresee years of uncertainty and all to no benefit, or none that I can see. No doubt when the noble and learned Baroness responds she will explain what the benefits are. In the mean time, I take the view that we will be much better to stick to the law as it is. What is the current law? The central concept is loss of self control. If the defendant had been so provoked by the victim as to lose his self control, the rigour of the law should on that ground be mitigated, provided a reasonable man in the defendant’s shoes would have done as the defendant did. So the objective part of the test is the test of the reasonable man. That is the test as was developed by the common law and is now confirmed by the Homicide Act 1957. The test, so simple at first sight, always concealed a difficulty. Suppose the defendant has some physical deformity. Suppose he is a hunchback, a cripple, or impotent. Would he not, if taunted, be more likely to lose his self control than a normal man without those deformities? The judges directed juries that in applying the reasonable man test, which may to some extent answer the question of the noble Lord, Lord Campbell of Alloway, they were directed to assume that the reasonable man had the physical characteristics of the defendant but not the defendant’s capacity of self control. That last point caused difficulty but was finally decided after much hesitation by nine Law Lords in the case of Holley in 2005. Since that decision, the test whether a reasonable man with the defendant’s physical characteristics would have lost his self control and done as the defendant did has been applied in murder cases up and down the country without causing any problems. It is as certain as any test can be. It is fair to the defendant, whether man or woman, since the ultimate test is a question of fact left for the jury’s decision. I turn to the Law Commission proposals, which also form the background to the current proposals. What it has done—this is the controversial part of its recommendations—is to recommend the combination of two separate concepts in a single partial defence. First, there is the defendant who is provoked by his victim and reacts in anger, as in the existing law. Secondly, there is the defendant who has suffered violence over many years at the hands of the victim and reacts not in anger but in fear. But those concepts are, in truth, inconsistent with each other. In the case of the defendant who reacts in anger, the key requirement is that he shall have lost his self-control. But in the case of the defendant who reacts in fear, loss of control has no place. The Law Commission recognised that crucial distinction and, in its recommendations, followed the logic of the argument and omitted any reference to self-control in the test. I now turn to the Bill. The Government have accepted the Law Commission's suggestion that the partial defence should contain two separate strands—fear as well as anger—but they have rejected the Law Commission's view that loss of self-control has no place at all in such a scheme. Contrary to the Law Commission's recommendation, the Bill has restored loss of self-control to a central place in the scheme but says that loss of control need not be sudden. For the first time, we have the concept of a gradual loss of self-control, presumably to cover those who have killed in fear. But how does the judge explain a gradual loss of self-control to the jury? Take the case of the battered wife, who has suffered years of violence at the hands of her husband and then kills in cold blood. Is she entitled to the partial defence or not? If the answer is yes, how is the jury to reconcile that with Clause 44(4), which provides that a defendant is not entitled to the partial defence if he or she kills out of, ""a considered desire for revenge"?" If, on the other hand, the answer is no, and a battered wife who kills in cold blood is not entitled to the defence, why not leave the law as it is? If she kills in hot blood, she has a perfectly good partial defence under the existing law. Or, are we to contemplate some halfway house between anger and fear where the defendant's blood is neither hot nor cold, but lukewarm? Again, how is that to be explained to the jury? The attempt to include in the same defence both fear and anger has resulted in a mishmash, which is bound to confuse the jury and which will, if I am right, take many years for the courts to elucidate. Since the structure itself is defective, it cannot now be put right by amendment. We must get rid of the clause altogether and think again. There are other defects, which I should mention. Clause 44(1)(c) contains a succinct, current account of what the objective test of the law now requires—the objective test of the reasonable man. Judges will have no difficulty in explaining that test as they always have, so why do we need "a qualifying trigger" at all? If Clause 44 is to become law, however, that is what is required. The judge will have to explain Clause 45(4)(a) and (b), which refer to, ""circumstances of an extremely grave character"," and, ""a justifiable sense of being seriously wronged"." Having told the judge in one breath that the test is that of the reasonable man, as described, he must go on to say, "But only if the circumstances are extremely grave". In truth, these two tests, in two different clauses, are inconsistent with each other. Judges are always being told by the Court of Appeal that they must keep their directions as short and simple as they can. I can say only that, in my experience, directing a jury on the basis of these new clauses would be a nightmare. They are bound to lead to more appeals, just as the existing law of provocation has settled down. As the noble Lord has said so often, the Government ought to have reformed the law of murder as a whole, in the light of the current Law Commission report. They have failed to do so. Instead, we are being asked to tinker with a small part of that law, which at present is working well. I have quoted Professor John Spencer QC of Selwyn College previously in a different context. His comment on these proposals is very pithy: ""If this is the best the Government could do, it would be better to do nothing"." I agree.