Coroners and Justice Bill

My Lords, Amendment 61, tabled by the noble and learned Lord, Lord Lloyd of Berwick, would remove Clause 48 from the Bill. The effect would be to knock out the first part of the proposed partial defence to murder, of loss of control, but it would effectively mean the end of the attempted reform of this part of the law. That is not acceptable. We understand that for some—I think that the noble Lord, Lord Thomas of Gresford, is one of those—change in the law on homicide has been too slow to come. Many in this House would have preferred to see us deal with all the Law Commission recommendations as one. That has not been done. Instead, we have decided to take a staggered approach, part of which is to take note of our responsibility to take the opportunity that we have today to reform what we consider an outdated piece of law, which many think is a mess. It is not just us in Government who believe that the current law of provocation is not satisfactory. In its report Murder, Manslaughter and Infanticide, published in November 2006, following extensive consultation with a wide range of stakeholders, the Law Commission said that, ""the partial defences remain misleading, out-of-date, unfit for purpose, or all of these"." Indeed the Law Lords themselves, when they passed judgment in Holley, accepted that the law of provocation was "a mess" and beyond their ability to retrieve. It will be remembered that the noble and learned Lord, Lord Nicholls, in delivering the majority verdict of the nine-member Judicial Committee of the Privy Council in that case, said: ""In expressing their conclusion ... their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts ... Their Lordships share this view"." We are convinced that, in today’s world, a person should not normally be even partially excused for killing when their actions were prompted by anger. For that reason, we are abolishing the partial defence to murder of provocation, which, in our view, allows for the possibility of defendants escaping a murder conviction and the ensuing life sentence in too many cases where what gave rise to their loss of self-control was not an extremely serious action or series of actions. We considered going as far as removing a partial defence to murder completely in cases of killing in anger but concluded, as did the Law Commission, that there might be extreme circumstances where injustice would result if a partial defence were never available. For this reason, a partial defence to murder will be available only to someone who kills in anger if the words or deeds causing them to lose their self-control constituted circumstances of an extremely grave character, which gave them a justifiable sense of being seriously wronged, and if a person of their age and sex, and in their circumstances, might have reacted in the same or a similar way. On the other hand, where a fear of serious violence drives a person to lose their self-control and to kill, we believe that it should be possible for a defendant to plead a partial defence on that specific basis, so long as a person of their age and sex, and in their circumstances, might have reacted in the same or a similar way. The current law is simply not designed to deal with such cases; the courts’ efforts to accommodate them have required a strained interpretation of a defence that was always intended to cover killings in anger rather than in fear. This may typically, but not exclusively, arise in situations of long-term abuse, where the victim of that abuse eventually loses their self-control and kills their former partner and assailant, fearing further violence. It may also be relevant in situations where the full defence of self-defence fails because a defendant, who has lost their self-control, uses more force than it is reasonable for them to use. We believe that our clauses achieve the right balance because the defendant may plead the partial defence only in relation to when they lost their self-control and not if they acted in a considered desire for revenge, even if they feared serious violence. Amendment 60, in the name of the noble Lord, Lord Hunt of Wirral, would add the words "gross provocation" to Clause 48(1)(b). It would have the effect of adding a new element to the test not just for one limb but for both limbs of the new partial defence. I reassure the noble Lord that the ground covered by the Law Commission’s "gross provocation" recommendation relating to things said or done is already reflected in Clause 49(4). "Gross provocation" was merely the title that the Law Commission chose for the limb of the partial defence now included in that clause. We argue that it did not have a life of its own, so to speak, as it unfortunately does in the noble Lord’s amendment. We believe that the amendment is therefore wholly unnecessary and that there is a danger that it would cause confusion. Subsections (3), (4) and (5) of Clause 49 already spell out the qualifying triggers to which the loss of self-control must relate for the partial defence to apply. Further, we think that Amendment 60 would create significant problems. As I said, it would apply the "gross provocation" requirement to both limbs of the partial defence, but the "fear of serious violence" limb of the new partial defence to murder is intended to apply in a more tailored way to where a person kills in fear than does the current partial defence of provocation. It achieves this by focusing on what the defendant feared in the future, rather than being based on what occurred in the past. Introducing a gross provocation requirement to the test for fear of serious violence begins to undermine that approach. Its effect would be that killings committed in fear would still have to be squeezed into a partial defence directed at killings committed in anger. It should be pointed out that the Law Commission did not apply the gross provocation label to the fear of serious violence limb, so doing that would be inconsistent with the commission’s approach. In short, we think that this additional hurdle of gross provocation is inconsistent and that it would make it much more difficult to argue successfully the fear of serious violence limb of the partial defence of loss of control. For those reasons, I invite the noble Lord to withdraw his amendment. If, as he has made it crystal clear that he intends to do, the noble and learned Lord, Lord Lloyd, takes his amendment to the opinion of the House, I shall have to advise Members of the House to vote against him.