Coroners and Justice Bill

We have had a very full and extensive debate. I too thank the noble Lord, Lord Thomas of Gresford, for the historical perspective from which he spoke to these amendments, and for his graphic description of them. I think he described them as "all nonsense and mangled". The noble Lord has never knowingly understated his case and he has made no exception this afternoon. However, these amendments are unnecessary. Straight away, I say to my noble friend Lady Mallalieu that I hear her concern, but I believe that she will be able to go back into the Bar Mess with some comfort. I can assure her that the Bar Council has said that it welcomes the extensive consultation over other areas of the Bill, including the "loss of control" provisions. It says that it is clear that the consultation has led to a significant improvement. The way in which these provisions have been described is not necessarily entirely accurate. We have heard a very clear exposition of Clause 44. It is right that Clause 44 sets out the criteria that need to be met for the new partial defence of loss of control to succeed. It needs to be read with Clause 45, which deals with the qualifying triggers for the partial defence. I say to the noble and learned Lord, Lord Lloyd, that the tests are not as inconsistent as he appears to find them. I have listened carefully to the arguments put forward, but I am certainly not persuaded at this stage that the clause should not stand part of the Bill. We accept that there are a number of stakeholders—individuals and groups—who would have preferred us to look at the Law Commission proposals as a whole. However, there are good grounds for reforming the partial defences to murder, irrespective of the wider reforms. I refer back to what the noble Lord, Lord Thomas of Gresford, described as the "elegant amendments", which we dealt with in his absence. The elegance of those amendments does not appear to have been quite appreciated by the Law Commission. An equally pithy response from Professor Jeremy Horder, the commissioner who had responsibility for leading extensive consultation on this for a long time, makes it clear that the new approach—which was advocated in those amendments—would be nothing short of, ""a betrayal of the consultees in this project: those consulted by us in 2003 and again in 2005, and when you consulted subsequently. They were all making suggestions on the assumption that the mandatory sentence would remain. It defies credibility to suppose that the Police Federation, ACPO, victims’ family groups, and others, would have engaged in the project in the way that they did had our proposals been centred on the removal or effective removal of the mandatory sentence"." The relevant body, of course, had the advantage of many years of extensive consultation with everyone. Pithy responses are always to be enjoyed by all. As regards the amendments in hand, concerns have been raised that the provisions in the law as it now is are not as clear as they should be. It seems to be generally accepted that we need to change and refresh them. The concerns are numerous; for example, that the defence may be too easily accessible to those who kill in anger and not sufficiently accessible to those who kill in fear. Although the courts have developed case law to accommodate this—as the noble and learned Lord has made clear—there is, in reality, no obvious place for killings in fear of serious violence in a defence designed for angry reactions. It is right that there should be a tailored response to these sorts of cases. A further concern is that where there is evidence of provocation, the defence must be put before a jury and there is no option for the judge to sift out unmeritorious cases, and there is a lack of clarity in judging how a "reasonable person" in a similar situation might have responded to the provocation. We are very familiar with all those concerns, which all need to be addressed. However, underpinning all this is a more general but important policy shift. Simply put, we do not believe that in this day and age it is any longer adequate to treat violence as a justified response to anger and we wish to raise the bar in relation to the partial defence in order to reflect this. We have consulted very widely and considered the issues carefully. We are confident that the changes we propose will strengthen the law and provide more just and equitable outcomes in individual cases. The Government recognise that the Law Commission’s recommendations for this important and extremely sensitive area of law are ambitious and wide-ranging. It is critical that we get this right. Therefore, we announced as far back as December 2007 our intention to proceed with reform of the law on a staged basis. As I mentioned on a previous occasion, we will be looking at the commission’s other recommendations, particularly those for a new structure for homicide in due course and in the light of the effect of any changes arising from this stage of our work. Meanwhile, we believe that there are good grounds to reform the partial defences to murder irrespective of the wider reforms. In the case of the existing partial defence of provocation, the Government are persuaded that it is capable of being too generous to those who kill in anger, and we want to change the law to address this. This is a deliberate and carefully considered shift in policy. We are saying that in this day and age, people can and should be expected to manage their anger, whatever it stems from, without resorting to killing. However, we also believe that there are some extremely grave circumstances where killing in anger should be able to justify reducing a charge of murder to manslaughter. Conversely, because the law is historically designed to cater for anger killings, it is not sufficiently tailored to killings which are in response to fear. We are making changes to rectify this. Clauses 44 to 46 address these concerns by abolishing the partial defence of murder due to provocation and replacing it with the new partial defence which is available in a limited set of circumstances where a defendant kills as a result of loss of self-control attributable to one of the following triggers. We have gone through them but it important to remind ourselves of them. I refer to a fear of serious violence, things said or done that cause the defendant to have a justifiable sense of being seriously wronged and constituted circumstances of an extremely grave character, or a combination of the above. Given this background, the noble Lord, Lord Kingsland, will not be surprised to hear that the Government cannot support Amendments 169A and 169E. They would make it possible for defendants to raise the partial defence of provocation in circumstances where things said or done caused the defendant to have a "justifiable sense of being wronged" as opposed to a, ""justifiable sense of being seriously wronged"." Clause 45(4) provides that the partial defence will be available where the defendant loses self control due, ""to a thing or things said or done (or both) which … constituted circumstances of an extremely grave character"," and caused the defendant, ""to have a justifiable sense of being seriously wronged"." We, too, looked at this matter and initially considered doing without this limb on the basis that killing in anger is almost never even partially excusable. However, the Law Commission provided examples of when such a defence might be appropriate. By way of illustration, one possible scenario might be where a refugee is living in the United Kingdom. One day he unexpectedly encounters an individual he recognises as being part of a war party that had rounded up the people in his village and locked them into a church that was then set alight. He verbally challenges the individual, who laughs in his face and starts describing details of the attack that resulted in the death of all of the man’s family. The man picks up a nearby chair and attacks the man, resulting in his death. We consider that the words and conduct limb of the partial defence needs to be included in this kind of extremely grave example, where the defendant would have a justifiable cause to feel seriously wronged. We remain of the view that the partial defence should succeed only in the gravest of circumstances. The phrase, ""a justifiable sense of being seriously wronged"," strengthens that aim and the Government therefore are not able to accept the amendments. I appreciate that the noble Lord was seeking an indication of how we put it.