Coroners and Justice Bill

My Lords, my amendment is grouped with this one, but I shall first address the Conservative amendment, which is good as far as it goes, but, as I hope to show, it does not go anything like far enough. My only comment at this stage is that if the Conservatives press their Amendment 60, they ought logically to support my Amendment 64; otherwise, they will reintroduce the concept of provocation by their amendment without any definition of what they mean by "provocation". They cannot rely on the common law definition of provocation or on Section 3 of the Homicide Act 1957 because they will have been repealed, unless they support my amendment. I look forward with great interest to see how they deal with that conundrum. It seems to me that they have probably argued themselves into a corner from which it may be difficult for them to get out. On the broader question of whether we should leave Clauses 48 and 49 in the Bill, my view is that they are beyond redemption. But I should have supposed that the Conservatives would also have wanted to leave those clauses out, for this reason: they presumably intend—perhaps they hope—to win the next election. If they do, they will have to grapple with the main recommendations of the royal commission report on homicide, which the Government, to their shame, have so far ignored or at least done nothing about. If the Conservatives win the election and if they decide to support the proposals of the royal commission they will have to revisit the partial defences, including the partial defence of provocation. But, surely, it would be madness for them to agree to an amendment on provocation now and then seek to amend again in two or three years’ time in the light of the new structure of homicide. Logically and sensibly—if they were logical and sensible, which I doubt—they should support Amendments 61 and 63. Clause 48(1)(a) and (c) contain a succinct account of the law relating to provocation, which provides an objective test—the test of a reasonable man—which is so familiar to the law. If the jury decides that, as reasonable men and women, it would have lost its self control and done as the defendant did, the partial defence succeeds. The defendant is then convicted of manslaughter and sentenced accordingly. Currently, that test is being applied up and down the country. Since the case of Holley, which was decided by nine Law Lords in 2005, it is not causing any great difficulty—indeed, no difficulty at all so far as I am aware. However, the Government in their wisdom have decided that juries are somehow getting it wrong. In their view, too many men are getting off light. They ought to be convicted of murder when they are being convicted of manslaughter. On 7 July, at col. 582, the Attorney-General said that in this day and age people ought to be able to control their anger. But the defence does not succeed just because the defendant kills in anger, it succeeds only if the jury, as reasonable men and women, would have done as the defendant did. If that is so—I see no evidence that it is not—why do we need a qualifying trigger? The answer is that we do not. The Government have simply not made out a case that the law as it stands is too favourable to men and women. The October issue of the Criminal Law Review states that making the defence of provocation is "unnecessary, unjust and wrong". I agree with that view. What will be the consequences if we enact Clause 48? I doubt very much whether it will make the slightest difference. Juries will continue to apply the existing objective test of the reasonable man which they know and understand. I suspect that the Government will fail in their objective, just as they failed in their objective to increase the number of those who are convicted of rape. It will prove to be yet another paper exercise. But in all other respects the consequences will be disastrous. One should put oneself in the position of the jury, which has just been told to apply the objective test of the reasonable man. Only a few moments later, it is told that the test should be applied only if the reasonable man would have had a justifiable sense of being seriously wrong. If I know anything about juries, at that point it will begin to lose the drift. Not only juries will lose the drift, judges too will be mystified. Judges will have to explain these qualifying triggers in words that the jury will understand. I fear that their attempts to do so will lead to years of appeals. In truth, the reasonable man test, set out accurately in one part of the clause, is inconsistent with the qualifying triggers which are set out in another part of the clause. It is either one or the other. It cannot be both at the same time. The Government have not only that objective of making it more difficult for men, they also have the objective of making it easier for women to rely on the partial defence. Particularly they have in mind battered wives who kill their husbands after years of abuse. Here, I have every sympathy with the Government’s objective, which was one of the reasons why I moved my earlier amendment. But the Government have set out to achieve their objective in the most extraordinary way. They have tried to shoehorn—to use a word used by the Attorney-General—the new partial defence based on fear into the existing partial defence based on loss of control. But that does not work. The battered wife who decides after years of abuse to get rid of her husband does not lose her self-control. She makes a deliberate decision, which is itself expressly excluded by Clause 48(4). The Government agree that in those circumstances there should be no partial defence. It is only if the battered wife is driven by fear of what may happen in the future that she will have a partial defence. That was made abundantly clear by the Attorney-General on 7 July 2009 at col. 384. But how does the jury begin to distinguish between revenge for the past, which is excluded, and fear for the future, which is the whole object of this proposed amendment? How in either case can it be said that she has lost her self-control, even with the new qualification that loss of control need not be sudden—whatever that may mean? A gradual loss of control still entirely escapes my understanding. At the end of Committee stage, I quoted the pithy observation of Professor Spencer who said that, if this is the best the Government can do, they would have done better to do nothing. I now quote another pithy observation, from a distinguished practitioner who said that to call this a, """dog’s breakfast" would be a kindness".—[Official Report, 07/7/09; col. 577.]" That was the observation of the noble Baroness, Lady Mallalieu, and I agree with it. I shall not vote in favour of Amendment 60, which seems only to scratch at the surface. However, when the time comes I shall move my own amendment, which would leave the clause out altogether.