Coroners and Justice Bill

My Lords, my name is attached to the amendment and I was delighted to hear the noble Lord, Lord Hunt, call for a wider and fuller debate, with key organisations consulted, on the reform of the law of homicide, which is what should happen. In this instance, the Law Commission has been confined in its consideration by the presupposition that the mandatory sentence would remain and has produced a structure from which the Government have chosen one or two things completely out of context and put them into the Bill. The amendment put forward by the noble and learned Lord, Lord Lloyd, undoubtedly would simplify the position completely. Noble Lords seemed to forget that the partial defences do not arise unless the jury is satisfied that murder has been committed. The first thing of which a jury is required to be satisfied is that the defendant killed the victim, either with the intent to kill or with the intent to cause him serious harm. It is only at that point that the judge will ask the jury to consider whether a partial defence arises. If it is the defence of provocation, the judge will not ask the jury to consider it unless he considers that a reasonable jury, properly directed, could return that verdict. The direction that the judge will give is encapsulated in Clause 48(6), where the Government trample on provocation. I shall come back to that. Subsection (6) states: ""For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply"." That is the word that the noble Lord, Lord Clinton-Davis, would prefer. The law at the moment takes into account what a reasonable jury might or might not conclude before the judge will leave to it the possibility of returning a verdict of manslaughter rather than murder, either on the grounds or provocation or diminished responsibility. The essential thing is that murder must be proved first. It is then called by a different term—manslaughter—if the prosecution fails to disprove one or other of the partial defences that the judge has concluded the jury might reasonably consider on the evidence adduced in the case. The amendment proposed by the noble and learned Lord, Lord Lloyd, envisages that a jury should still convict of murder if the ingredients of murder are satisfied—that a person has killed with intent to kill or to cause serious or grievous bodily harm. So the defendant would still be convicted of murder as opposed to manslaughter. However, in a case where the judge thinks that it is reasonable so to conclude on the evidence adduced, the jury could say that there are extenuating circumstances. This would open it up to the judge to pass a sentence other than the mandatory life sentence, which is, of course, the stumbling block to all proper reform in this area. I do not want to repeat everything that has been said by noble Lords; I just wish to endorse it from long experience. If the argument advanced by the Attorney-General in Committee is the only one on which the Government found their resistance to the amendment—they question what such circumstances amount to—one has only to consider what sort of concepts a jury has to grapple with not only in the current law of provocation but in the law as redrafted by the Government. Under Clause 48, the jury has to grapple first with whether the defendant’s acts or omissions in doing or being a party to the killing resulted from the defendant’s loss of self-control, whether that self-control had a qualifying trigger—I shall come back to that—and then 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 to D"." A jury has therefore to go through all this process of putting itself in the position of that defendant and then, acting as the embodiment of the reasonable man, to consider, "Well, would I have done that if I had been in the position that the defendant was in, bearing in mind his age and sex?". It is a very difficult concept, but the jury’s task does not stop there, because it has to look at the "qualifying trigger", which is, for example, that the, ""loss of self-control was attributable to a thing or things done or said (or both) which … constituted circumstances of an extremely grave character, and … caused D to have a justifiable sense of being seriously wronged"." So the jury then has to consider a "qualifying trigger", "extremely grave character", and, ""justifiable sense of being seriously wronged"." Then, by way of a final kick before that clause is left, it has to exclude anything that constitutes sexual infidelity—we shall come back to these arguments at a later stage. At the moment, the law is intensely complicated and requires the jury to conduct all sorts of difficult intellectual exercises, but, as proposed by the Government, it gets even worse. This is all to reduce the conduct of the defendant from murder, so that he is no longer called a murderer but is called somebody guilty of manslaughter, and to enable the judge to pass a sentence that he thinks is appropriate in the case. Under the amendment tabled by the noble and learned Lord, Lord Lloyd, the judge would be obliged to take into account what the jury, as the representatives of the people, thinks are extenuating circumstances. The judge does not have to agree under the amendment, but he would no doubt take very much to heart what verdict was proposed. The law of murder is in a mess; it requires complete restructuring. It requires getting away from the mandatory life sentence—a political football that has been knocked around for so long—and it demands a rational approach. The nearest within the context of the law at the moment that you can get to a rational approach is for your Lordships to accept the amendment that the noble and learned Lord, Lord Lloyd, has moved.