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Clause 45

Meaning of "qualifying trigger"

The Parliamentary Under-Secretary of State for Justice (Claire Ward): I beg to move, That this House disagrees with Lords amendment 55.

Mr. Deputy Speaker: With this it will be convenient to discuss the following: amendment (a) in lieu of Lords amendment 55.

Mr. David Heath (Somerton and Frome) (LD): On a point of order, Mr. Deputy Speaker. We had an unsatisfactory end to the previous debate due to the terms of the programme motion. The amendment in lieu, on which the whole House had expected to vote, could be properly considered only if the Lord Chancellor was prepared to move it from the Dispatch Box. Is it not the case that the same will apply with the forthcoming group of amendments, and that the amendment in lieu cannot be taken if the Minister is still speaking when the knife falls? Would it not be in the interest of proper debate if the Minister sat down before that point, or adopted the same principle of moving the amendment in lieu, so that the House may have a voice on the matter?

Mr. Deputy Speaker: The hon. Gentleman's assumption is correct. On the previous occasion we got into a difficulty by accident, but we were rescued in a way that satisfied the House, and enabled the vote to take place. That is the position.

Claire Ward: The Government cannot accept the amendment passed in the other place to remove the sexual infidelity exclusion in the new partial defence of loss of control. The history of the partial defence of provocation has led to a commonly held belief that this defence can be abused by men who kill their wives out of sexual jealousy- [ Interruption. ]

Mr. Deputy Speaker: Order. I am sorry to interrupt the Minister. We have moved on to other business, and I must ask hon. Members who do not intend to stay for this debate to leave as quickly and quietly as possible. The noise is quite unfair to the Minister and those who are trying to listen to her.

Claire Ward: Thank you, Mr. Deputy Speaker.

The history of the partial defence of provocation has led to a commonly held belief that this defence can be abused by men who kill their wives out of sexual jealousy or revenge for infidelity. This erodes the confidence of the public in the fairness of the criminal justice
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system. Even accepting that a great deal has been done in recent years to address this problem, and that pleas of provocation generally do not succeed on the basis of sexual infidelity, it is still true that under current law that defence can be raised and could succeed.

Mr. Grieve: The hon. Lady will be aware that, only two weeks ago, there was a case in which a jury came to precisely that conclusion under the existing rules and reduced the offence of murder to manslaughter on the ground of sexual infidelity as part of the provocation. Will she identify from where the outcry came, as a result of that difficult decision for the jury, to suggest that it has undermined confidence in the criminal justice system? Why is she suggesting that we should not leave to members of the public sitting on juries the difficult task of making a judgment in these matters? What is the basis on which the Government wish to withdraw that right from the jury?

Claire Ward: The hon. and learned Gentleman is right to raise that recent case, but the reality is that there is still an opportunity under existing law for that defence to succeed. The jury in that case decided that it was not appropriate, but it remains possible that a different jury, in different circumstances, might decide that it could succeed.

Mr. Douglas Hogg (Sleaford and North Hykeham) (Con): The hon. Lady will know that, in 2004, the Law Commission published its report "Partial Defences to Murder" and, prior to that, a consultation paper. I am not aware that either document suggested that sexual infidelity should be removed from the classes of conduct capable of amounting to the defence of provocation, should the jury so decide.

Claire Ward: The general issue around provocation, and the change of defence, has been accepted by both Houses. The issue here is in respect of sexual infidelity. In respect of the particular case that the hon. and learned Member for Beaconsfield (Mr. Grieve) mentioned a moment ago, the jury came to a considered view on the attempted use of the defence of sexual infidelity, but that case also specifically referred to diminished responsibility.

Mr. Hogg: The Minister is slightly misunderstanding my point, and that might be my responsibility. The point that I am making is that the Law Commission did not-either in its final report or in its consultation document-suggest that sexual infidelity should be excluded from the classes of case that were capable of amounting to provocation.

Claire Ward: However, there is now a commonly held belief that cases exist in which that defence has been used successfully. We want to put the matter beyond any doubt.

Mr. Grieve: I still do not understand why the defence should not be used successfully. Why does the Minister wish to deny to a jury the right to make an assessment as to whether the offence should be reduced from murder to manslaughter on the basis of provocation? In virtually every other area, it will be allowed to make that decision, but apparently not in the case of sexual
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infidelity. What has the Minister got into her head that is making her want to withdraw that historic right from a jury?

Claire Ward: Frankly, we do not think that it is appropriate, in this day and age, for a man to be able to say that he killed his wife as a result of sexual infidelity. That is essentially the reason. If other factors come into play, the court will of course have an opportunity to consider them, but it will not be able to make the decision exclusively on the ground of sexual infidelity. The sexual infidelity exclusion applies in relation to the words and conduct limb of the new partial defence to murder of loss of control.

Mr. Grieve: Let us just take a quick example. A woman is abused by her husband over a long period, at the end of which they are reconciled. He says that he will moderate his behaviour and promises to be faithful to her in future. She comes home the following weekend to find him in flagrante with his lover. He tells her that the marriage is now at end, and she kills him. How is the jury going to be invited to disentangle the elements that went into causing that act? How is it supposed to disentangle the abuse, which it will be entitled to take into account, from the sexual infidelity, which the Minister now tells us that the Government, in their wisdom, have decided to deny it the opportunity to consider?

Claire Ward: The court may of course take into account whether there has been abuse, as well as other factors, but it will not be able to take into account a set of circumstances in which the defendant kills someone in an attempt to punish them or carry out some form of revenge purely as a result of sexual infidelity. I am really quite surprised that the hon. and learned Gentleman thinks that it is acceptable, in this day and age, for someone to use the partial defence that sexual infidelity is an acceptable reason for killing.

Mr. Grieve: This is not just my view. Perhaps the Minister would like to be candid with the House about what the Law Commission was advising the Government, even up to a few weeks ago, on the coherence of their proposals. My understanding is that the Government have received the clearest, most unequivocal advice from the Law Commission that this particular proposal-which was never in the commission's proposals-is nonsense.

Claire Ward: The Law Commission has said that such cases should not be left to the jury. Perhaps the hon. and learned Gentleman would like to refer to page 65, paragraph 3.143. Now perhaps I can move on-

Mr. Hogg: Page 65 of what?

Claire Ward: Of the Law Commission report. Now perhaps I can move on-

Mr. Hogg: I have the Law Commission's report here.

Claire Ward: It is on page 65, paragraph 3.143. I am happy to take further interventions as I proceed through my speech, which will perhaps give the right hon. and learned Gentleman an opportunity to consider the report.

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Mr. Grieve: The Minister knows that the Law Commission's original proposals were cherry-picked by the Government. They decided not to adopt the commission's proposals for the categories of murder 1 and murder 2. I say again to the Minister that my understanding is that, at a meeting that took place-certainly not under Chatham House rules-between the Government, their advisers and the Opposition in the Lords, the representative of the Law Commission publicly urged the Government to desist from this course of action.

Claire Ward: Perhaps I can refer to page 65 of the Law Commission report. It states:

That, I think, provides some support across a number of areas.

Several hon. Members rose -

Claire Ward: I will take some more interventions in a few moments, but I want to proceed a little further.

7 pm

The sexual infidelity exclusion applies in relation to the words and conduct limb of the new partial defence to murder of loss of control. For that limb of the partial defence to succeed, the defendant must persuade the jury of the following: that he or she killed, or was a party to killing another as a result of losing their self-control; that this loss of self-control was triggered by a thing or things done or said-or perhaps both-that, first, constituted circumstances of an extremely grave character and, secondly, caused them to have a justifiable sense of being seriously wronged. Finally, the defendant must show that a person of their sex and age with a normal degree of tolerance and self-restraint and in their circumstances might have reacted in the same or in a similar way to the defendant.

This is a purposely high threshold designed to narrow the circumstances in which a partial defence to murder can be made out based on anger. However, in order to put the matter beyond any doubt, the Bill as introduced in this House also made specific provision that in assessing whether the things said or done constituted a trigger for loss of self-control, the fact that a thing done or said constituted sexual infidelity is to be disregarded by the jury.

Miss Ann Widdecombe (Maidstone and The Weald) (Con): I am grateful to the hon. Lady who has given way very generously. I am not a lawyer, so perhaps we can put this into terms that a layman can understand. The difference between murder and manslaughter is essentially the difference between premeditation and instantaneous reaction. If a man or woman comes home and finds her spouse in flagrante and loses control on the spot-not having premeditated finding such a thing-and hits the spouse over the head with a saucepan, which, instead of merely silencing, kills that spouse, most rational people would say that that was manslaughter, not murder. If we are completely to disregard the sexual infidelity in that situation, it removes a defence that would be reasonable in all other circumstances.

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Claire Ward: I think that a very important principle is at stake here: whether or not this House believes-it has already put its views on this matter on the record-that when a person commits sexual infidelity they in some sense bring upon their own death at the hands of their partner, husband or wife. That surely cannot be the way in which we should proceed. The reality is that in many court cases, it was decided that that was not an appropriate partial defence, so we wish to make it absolutely clear in the Bill that it cannot be a partial defence in those circumstances.

Mr. Llwyd: May I tell the Minister about a case I was involved in not so long ago? A person was bragging about having had relations with a man's wife. The man who was offended went out, bought a knife and stabbed the other person to death. Would the person using the knife have a defence or not? The man killed had said that he had been with the man's wife and various rude things, so would the new defence be open to the individual who killed the man immediately with the knife?

Claire Ward: I do not think it is a matter for me to set out the circumstances; it would depend on the context, which is what the court would have to consider. We are simply saying that sexual infidelity in itself cannot and should not be an acceptable reason for a defence for murder.

Anne Main (St. Albans) (Con): Does not the Minister accept that the sexual bond between two people gives them a greater closeness and involvement than with any other people in their lives, which is why people would use this as a plea-because the betrayal is so much greater and the anger may be so much more than in any other situation?

Claire Ward: I do not for a moment deny that passions will be incredibly high when such personal relationships are under pressure in the circumstances that many Members are describing, but surely the hon. Lady would agree that this House and our legislation should not say that dealing with such matters in such a violent way is acceptable. It is not and cannot be acceptable-and we want to make it perfectly clear in the legislation that it is unacceptable.

Mr. David Winnick (Walsall, North) (Lab): At a time when we are very concerned about so-called "honour killings", which in no way involve honour, is it not very important that this House should send out a perfectly clear message, as my hon. Friend has said, that sexual infidelity can never be an excuse-no matter what the links in a marriage or partnership, as described by the hon. Member for St. Albans (Anne Main)-for what is, after all, murder?

Claire Ward: I certainly agree with my hon. Friend. Of course we do not believe that fidelity, however desirable, is appropriately or effectively championed by treating the victims of infidelity, who go on to kill their unfaithful partner, more leniently. That is essentially the issue.

Jeremy Wright (Rugby and Kenilworth) (Con) rose-

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Claire Ward: I shall give way for the very last time, as I need to make some progress.

Jeremy Wright: I am grateful. May I bring the Minister back to the wording of the Bill? Surely the difficulty here is not that we are asking for new law that would make sexual infidelity of itself and solely a qualifying trigger in this context; rather, the problem is that the Bill provides that a thing done or said that constitutes sexual infidelity is to be disregarded. The Minister would be right if the Bill set this out as solely sufficient for a qualifying trigger, but it does not; surely what is unrealistic is, as my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve) said, that the jury is being invited to take no notice at all of something that must count as relevant circumstances.

Claire Ward: We need to look at the reality and at what we believe is acceptable. I have to say again that it cannot be acceptable for a man, for example, who finds his wife in a state with her lover and decides to kill her to use the fact of her sexual infidelity as a partial defence. That is not an acceptable way for our legislation to proceed.

Several hon. Members rose -

Claire Ward: I want to make some progress and deal with a couple of other issues that have been raised in the debate.

The core argument against this provision, as put forward in the other place, centred on the notion that the Government were not prepared to trust the common sense of the jury. I believe that that is essentially the argument put by the hon. and learned Member for Beaconsfield. That argument is simply misplaced. The provision does not reflect a lack of trust in the jury; what it does reflect is the Government's determination to ensure that the law in this matter keeps pace with the times. In this day and age, it should not be possible for any person, regardless of gender or sexuality, to stand up in court and blame their partner-let us not forget that it is the partner that they themselves have killed-for having brought on their own death by having had an affair.

Mr. Grieve: Will the hon. Lady give way?

Claire Ward: I am going to make some progress; I will come back to the hon. and learned Gentleman.

In modernising the law in this matter, we have purposely set a very high threshold for the circumstances in which killing in anger could ever be treated as manslaughter rather than murder. The words and conduct limb of the partial defence is the main plank for achieving this, but we also believe that in relation to sexual infidelity, it is important to set out the position precisely and uncompromisingly-namely that sexual infidelity is not the kind of thing done that is ever sufficient on its own to found a successful plea of loss of control so as to reduce the verdict from murder to manslaughter.

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