Coroners and Justice Bill

We do not believe that it is otiose. There has to be a benchmark that regulates this. We think that the "seriously wronged" emphasis is in the right place. I also remind the Committee that the, ""justifiable sense of being seriously wronged"," is in line with the Law Commission’s recommendations, which came after very extensive consultations. That is why I say that we were not initially attracted by this approach. However, from the research that the Law Commission did and the approach that it took, we were convinced that this was a responsible and reasonable response to the experience that it had culled from the work that it had undertaken. We were clear that it would be wrong to disregard its advice and the work that had led it to that conclusion, with which we then concurred. Amendment 163A would add the words "gross provocation" to Clause 44(1)(b). This amendment would add a new element to the test of both limbs of the partial defence. I can see how the noble Lord, Lord Kingsland, might wish to revert to the more familiar language of "gross provocation". Let me begin by reassuring him that the ground covered by the Law Commission’s "gross provocation" recommendation in relation to things said or done is already reflected in Clause 45(4). "Gross provocation" was no more than the label that the Law Commission used for the limb of the partial defence covered by that clause. More significantly, the Government do not believe that it would be appropriate to apply a "gross provocation" requirement to the "fear of serious violence" limb of the partial defence; the amendment would apply the requirement to that limb as well as the one relating to things done or said. In creating the "fear of serious violence" limb, we are specifically seeking to better tailor the law to cases where a person kills in fear than at present. Adding a "gross provocation" requirement to the test for fear of serious violence would reintroduce some of the problems we seek to address through these reforms. In particular, it would again result in killings committed in fear needing to be shoehorned into a partial defence designed for killings committed in anger. Including that additional requirement would inevitably make it significantly harder for a plea based on fear of serious violence to succeed. It would also be inconsistent with the focus of the "fear of serious violence" limb, which is on what the defendant feared in the future rather than just what occurred in the past. Amendment 164A seeks to remove "considered" from the reference to "considered desire for revenge" in Clause 44(4). The effect would be to narrow the circumstances in which the partial defence of loss of control might succeed, so that any situation where the jury found that there was a desire for revenge would be ruled out. The Government remain firmly of the view that revenge killings should not be able to benefit from the partial defence of loss of control. However, removing the requirement that the loss of control must be sudden potentially widens the scope of that partial defence in such cases. It is therefore necessary to create some provision to ensure that revenge cases, such as gangland killings where the defendant was plotting to kill the victim, do not benefit from the partial defence. By referring to a considered desire for revenge, we are taking up the recommendation from the Law Commission, which observed that a person who acts in considered desire for revenge is rightly to be distinguished from someone who acts on impulse or in fear or both. We seek to capture those instances where the defendant has gone beyond simply experiencing a range of emotions—that was described earlier—to a place where they have reflected and chosen to act in revenge. The form of words strikes the right balance by barring thought-out revenge killings without automatically excluding cases where revenge may play part of a more complex range of emotions. It will of course be down to the jury in the end to determine whether the partial defence should succeed on the facts of the case. Amendments 163 and 164, in the name of the noble Lord, Lord Thomas of Gresford, would remove the requirement for loss of self-control and the specification that that loss need not be sudden. It is important to retain that requirement, which is in the current law of provocation, because it ensures that the defence cannot succeed where the defendant kills "in cold blood". Of course I listened with great care to what the noble and learned Lord, Lord Lloyd, said about lukewarm blood and the difficulty that arises. A number of amendments have been tabled to remove the requirement for loss of self-control from the partial defence, but it would be wrong to allow a defence for murder to someone who kills when they are in full control of themselves—unless of course they meet the criteria for the full defence of self-defence, or the partial defence of diminished responsibility. The clause makes it explicit that the loss of self-control need not be sudden for the partial defence to succeed. This allows for situations where the defendant’s reaction has been delayed or builds gradually. As your Lordships will be aware, this is often the case where the defendant has been subject to long-term abuse—which has been referred to—at the hands of their partner who they eventually kill. I am aware that some people have argued that loss of control is by definition sudden. However, the evidence that we have looked at does not bear that out. There are real-life examples of a time lapse between the event that triggered the loss of self-control and the actual loss of self-control, or cases where a loss of self-control has taken place as a result of the cumulative effect of a number of events. We are talking here of cases where the loss of self-control does not necessarily manifest itself in an instant and explosive way, but neither could it be said that the defendant acted in cold blood. We very much based that on the analysis that has been undertaken by the Law Commission. Although it is a requirement under the current law of provocation that a loss of self control must be sudden, case law has developed over time to deal with this very issue. The result is that, currently, the partial defence might still apply where there is a delay between the provocative incident and the killing. However, reaching this point has required a particularly strained interpretation of "sudden", which in reality was designed to cater for immediate angry reactions to provocation. Our clause is designed to ensure that cases are not automatically ruled out just because the loss of control has not been sudden, but it will remain open for the judge, in deciding whether to leave the defence to the jury, and the jury, in determining whether the elements of the defence are satisfied, to take into account any time delay. This strikes the right balance between ensuring that the defence cannot succeed where the defendant kills in cold blood, while allowing for situations where the defendant’s reaction has been delayed or where it builds gradually. We think that that is a just compromise. This leads me to Amendments 168A, 169B and 169C, which seek to restrict the time between the trigger to the loss of self-control and the killing. I understand and sympathise with the noble Lord, Lord Kingsland, and others in what they are seeking to achieve through the amendment, but I hope that I have made it clear why we are unable to agree with it. Amendment 165 relates to an issue raised by Professor Jeremy Horder of the Law Commission who appeared to be concerned about the assumption in Clause 44(5) that the defence is satisfied unless proved otherwise by the prosecution. Professor Horder offered the example of a defendant seeking a full acquittal on the grounds of self-defence. He suggested that in such a case, the prosecution might be tempted not to rebut the defence so that the defendant would be convicted of manslaughter rather than found not guilty. In considering such a scenario, it is important to be clear about the purpose of this provision. All that subsection (5) of Clause 44 does is to clarify where the burden of proof lies when the partial defence of loss of control arises in the case. The subsection makes clear that where sufficient evidence of the partial defence is adduced within the meaning of subsection (6), the burden rests on the prosecution to disprove the defence to the usual criminal standard of proof. The position reflected in the clause is commonly the position within the criminal law. The same position in respect of the burden of proof applies now to the partial defence of provocation and the full defence of self-defence. Bearing in mind that we are replacing the current partial defence with a new one, we consider that it is helpful in the interests of clarity and certainty to make it plain in the clause where the burden of proof lies. Amendment 165A deals with a related point. The usual position where the evidential burden applies is that the judge should leave to the jury any defence that it may reasonably find to apply on the evidence heard at the trial, regardless of who has raised it. The amendment would therefore be contrary to the usual position, and we see no good reason to shift the boundary. As regards Amendment 168, the Government are confident that the current formulation captures the right cases, and I am therefore afraid that the amendment would dangerously widen the partial defence. I am confident that that is not what the noble Lord wishes. I will take as an example the case of a young woman who is conducting a secret affair with an individual who she knows her family considers unsuitable. The woman is discovered by her mother. The mother does not represent a threat to her daughter, but says that she will inform her father. The daughter, fearing serious violence from her father, who does not know of the affair and is not present, kills her mother. Removing the link between the fear of serious violence and the victim would allow the daughter to claim the partial defence, provided that the other criteria for the defence were met. No matter how unfortunate the circumstances of the defendant, we do not think that it is desirable or appropriate to widen the defence to this extent. Amendment 169 seeks to remove the requirement that the things done or said, or both, to which the loss of self-control is attributable, must constitute circumstances of an extremely grave character. We cannot accept these changes, which would lower the bar and make the defence easier to argue. This is contrary to our stated policy of narrowing the defence and making its use more difficult for those who should not properly take advantage of it. Amendments 169D, 169F and 169G are also contrary to the Government’s aim of preventing people from relying on the partial defence where the qualifying trigger was caused by something that the defendant incited another to do or say. We do not want it to be possible for the defendant to use things said—for example, verbal threats—as the basis for their fear of serious violence. Finally, I will mention briefly the two government amendments in the group. We have identified the need to amend a reference in Schedule 21 of the Criminal Justice Act 2003 to the partial defence of provocation. This is a necessary minor consequential amendment to bring Schedule 21 into line with proposals in the Bill. I hope that I have persuaded the noble Lord, Lord Thomas of Gresford, of the virtues of our approach to the new partial defence of loss of control, and I hope that he will consider withdrawing his amendment to Clause 44. I apologise for taking some time, but the amendments were extensive in number and in detail.