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The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins):
I am grateful to my hon. and learned Friend the Member for Redcar (Vera Baird) for initiating this important debate. To the long list of attributes that we associate with my hon. and
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learned Friend we can now add stamina, as she and I, as well as the hon. Member for North Down (Lady Hermon) and my hon. Friend the Member for Colne Valley (Kali Mountford), who are also in the Chamber, have been discussing the detail of the Domestic Violence, Crime and Victims Bill since about 10 past nine this morning.
My hon. and learned Friend speaks with great experience and authority on these extremely important issues. As she said, two women are killed every week by a male partner, or former partner, while about 30 men are killed by a female partner, or former partner, each year. Getting the criminal law right is essential to deal justly with such cases and an important part of getting domestic violence fully recognised for the serious offence that it is.
The Government have sought to engage the public on these issues, setting out our proposals in "Safety and Justice", which was published just a year ago in June 2003, and introducing the Domestic Violence, Crime and Victims Bill in this Session of Parliament. It is vital that we get the law right and that we deal with the perpetrators, as well as find and develop practical ways to provide effective help and support for victims.
The Government fully recognise and share the concern about the way in which the law on homicide operates in relation to domestic violence cases. In particular, we understand the concern that recent developments in the law have led to an extension of the scope and availability of the partial defence to murder of provocation well beyond what was envisaged in section 3 of the Homicide Act 1957. Those developments have allowed a subjective test for provocation, based on the defendant's characteristics, rather than the more objective test of what a reasonable reaction to the provocation would be. My hon. and learned Friend outlined very graphically the impact of that on individual families.
Of course sexual jealousy, however much it may enrage the person who suffers from it, should never be seen as a justification for killing someone; nor should infidelity be an excuse for taking someone's life, however devastating it may be. There is also a deep worry that current sentencing in relation to manslaughter by reason of provocation in cases of domestic violence homicides does not adequately reflect their seriousness and the loss of life involved.
The Government agree that the current position on provocation is unsustainable. Indeed, for that reason, we asked the Sentencing Advisory Panel to consider the sentencing issues and the Law Commission to analyse provocation as a partial defence. The Law Commission was the right body to do that. It is eminent in law reform and respected in legal circles and more widely. It has been able to research this issue thoroughly and provide a very detailed legal analysis of the present law and the options for reform.
In addition, the Law Commission has been able to canvass a wide range of views and opinions, consulting extensively across the appropriate groups and individuals. My hon. and learned Friend named some of the organisations, such as Southall Black Sisters, Justice for Women, the Women's Aid Federation of England,
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Rights of Women and, indeed, the Fawcett Society, in which she plays such a prominent role. All those organisations have provided useful information about the problem. Their insight will be vital in ensuring that we deal with the right issues and find solutions that really work.
This concern is not new. We highlighted our concerns about the law on provocation generally and the particular problem with domestic homicides in the "Safety and Justice" domestic violence consultation paper that I referred to earlier. Indeed, the Domestic Violence, Crime and Victims Bill, currently in Committee, contains important measures to help to tackle the evil that is domestic violence. Those measures include making common assault an arrestable offence; making breach of non-molestation orders a criminal offence; establishing domestic homicide reviews; and strengthening provisions on restraining orders, including making them available on acquittal. All those important changes demonstrate our total commitment to dealing with such crime with all the severity that it properly deserves.
In "Safety and Justice", we identified two strands to the problem with the way that the law on provocation works at present: first, the problem with the way the law has developed since Morgan Smith, to which my hon. and learned Friend referred, and the subjective interpretation of provocation provided by that case; and secondly, the problem with sentencing. It is true that a good part of the problem lies on the sentencing side. There is a large gap in the sentences given in cases of murder and manslaughter. Murder receives a mandatory life sentence, with a starting point of at least 15 years, as established in the Criminal Justice Act 2003. Although manslaughter can attract a discretionary life sentence, sentences in practice are generally of determinate length and, for domestic homicides, will usually attract a sentence of four to eight years' imprisonment.
Under current licence arrangements, the defendant can expect to serve two thirds of such a sentence, so the difference in time actually served can be very large indeed. That puts great weight on the partial defences, because the consequences can be so significant. For that reason, we asked the Sentencing Advisory Panel to examine sentencing when provocation reduces a charge of murder to a conviction for manslaughter, especially when the offence arises in a domestic context. Its analysis, which was published in its consultation paper, shows clearly how wide the sentencing gap is at present. Nevertheless, its proposals would place most cases of manslaughter by provocation—whether or not in a domestic context—in the medium or low ranges of seriousness. That would give starting points of six or two years respectively and would, in practice, do little to address the present sentencing gap.
The next stage for the Sentencing Advisory Panel, following an assessment of the responses to the consultation, will be for it to put proposals to the new Sentencing Guidelines Council, with the final guidelines ultimately coming before Parliament for debate. We are keen for all those with an interest to engage in the process and hope that that will ensure the development of appropriate guidance that reflects both justice and fairness.
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As regards the partial defence itself and the formulation of the criminal law, we are concerned, as I said, about domestic homicides in which the alleged provocation is due to sexual jealousy or infidelity, for it is in such cases that raising the partial defence often involves an attack on the victim's reputation. We know that that can be extremely traumatic for the family. Understandably, they will perceive that the verdict, or acceptance of a plea, in such circumstances means that the victim was to blame for his or her death. We need to tackle that, so the Law Commission's work could be helpful. My hon. and learned Friend outlined the provisional proposals in detail. They would remove the concept of loss of self-control, so that could no longer form the basis of a defence, and substitute fear of serious violence and words or conduct that caused the defendant to have a justifiable sense of being wronged as the grounds for defence.
Even within the context of domestic violence, however, the proposals have major implications that require careful thought. In particular, the concept of a justifiable sense of being wronged could have unintended implications. Of course, we cannot limit the debate to that context alone. As I said earlier, this area of the law is important in relation to domestic violence, but the importance of provocation goes much wider.
Partial defences to murder, including provocation, provide the boundary line between murder and manslaughter across homicide offences in general, so we need to look at the law for all homicides. Our aim must be to find a balanced solution that will address the differing types of homicide coherently while providing public confidence that the law is fair and right. In such a complex area of the law, the potential for unintended consequences is huge.
I should make it clear that we do not think that the option of a defence only for cases of domestic violence would work. There is no definition of domestic violence in law and, as we have been debating in Committee, there are good reasons for that. For a start, it would be difficult to reach a clearly agreed firm definition. The criminal law must provide certainty about its scope, but how would that work for domestic violence homicides? Violence between partners would clearly be covered, but what about casual relationships between two people who had perhaps met only that day or earlier in the same week? Where would we draw the line? What about child homicides, perhaps following a prolonged period of physical or sexual abuse? There would need to be a convincing reason why people who committed the same basic offence, but in different contexts, would have different defences available to them.
I want to consider briefly what the Law Commission proposes in the wider context of homicide as a whole. Its provisional proposals have some attractive features, but they would represent a major change from the way in
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which the law works at present. At present, provocation provides an excuse for homicide because although an offender killed, that can be partially excused because he lost control. However, the courts have stretched that to take account of the very different position for women who kill. Under the Law Commission proposal, the killing would be deemed partially justified in certain circumstances, which is a very significant change indeed with far-reaching ramifications. We need to consider how it would work, not just in the domestic violence context, where there could be difficult areas such as "honour" killings, but in other circumstances. For example, it might be possible to argue that some gangland killings meet the criteria. We need to reflect on that major issue of principle and policy in criminal law. It would certainly be irresponsible to adopt such a radical change too quickly. We also have to look with great care at the balance between providing a defence that is subjectively based on the defendant's characteristics and making the defence wholly objectively based. That needs to be debated fully to ensure that we reach a solution that commands public confidence in the rule of law.
The Law Commission is still working on its final report. Its proposals have been strongly welcomed by some groups, although areas of particular concern have also been identified. We must make sure that it has the time to complete its work fully, analyse the responses and take them on board. Moreover, we need to take a comprehensive look at the underlying principles, as this is not an area for quick decisions. The Law Commission's thorough analysis will be crucial in helping us to clarify our understanding of the issues involved. The present law was put in place in 1957, and we need to undertake careful reflection and study the Law Commission's proposals in depth before we set it aside. Given that legislating on provocation is a complex area of law, it clearly makes good sense to await the final report by the Law Commission. We will then look at its recommendations carefully before we consider taking legislative action. We will need to ensure that we have checked the full intended consequences of the proposed changes, and that we have picked up any unintended consequences.
I believe that at this stage it is too early to legislate. We have more work to do if we are to get this important issue right, and we are all too aware of the problems created by rushed legislative change. The Domestic Violence, Crime and Victims Bill is a crucial further step in the Government's determined efforts to deal with the horror of domestic violence. Further development of our thinking on provocation and the changes to the law that may be required should be undertaken with great care to ensure that we get it right.
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