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I want to express one or two concerns about the amendment in lieu proposed by the hon. Member for Cambridge (David Howarth). There may not be sufficient time at the end of the debate-I hope there will be-so I will say a few words about it now. I think I should be grateful to the hon. Gentleman for an amendment in which I believe he is trying to find an alternative form of
words to achieve the Government's purposes in clause 45. However, the way in which the amendment is drafted is unacceptable, for two reasons. First, the amendment restricts the possible motives to three: punishment, sexual jealousy, or sexual envy. Therefore, in cases where sexual infidelity is involved, if the defendant argued that the action he or she took was due not to one of those motives, but to betrayal, breach of honour, or outrage to morality or decency, they could rely on the partial defence. Therefore, if the intention behind the hon. Gentleman's amendment is what I would hope it to be, it has a loophole.
Secondly, the terms of the amendment are drafted too widely: punishing a person for any act perceived as sexual infidelity would not qualify for the partial defence. The Government's amendment would ensure that a partial defence could be used, for example, in the extremely grave circumstances in which a woman killed her husband after she came home and found him raping her child. However, under the hon. Gentleman's amendment, if the act was perceived as sexual infidelity, even though that might not have been the main consideration in the loss of control, its existence would exclude reliance on the partial defence.
David Howarth: Under my amendment, all such issues would be for the jury to decide. I find it difficult to believe that the jury would find in the direction that the Minister suggests.
Claire Ward: The hon. Gentleman would therefore leave in some doubt whether there were circumstances in which sexual infidelity would be acceptable as a defence for murder.
David Howarth: The Minister cannot have it both ways. First she says that my amendment catches more cases of sexual infidelity, and now she claims that it catches too few. I wish the Government would make up their mind.
Claire Ward: That is not what I am saying. There are circumstances-the prime example is of a wife seeing her husband having sex with their child or a stepchild-in which sexual infidelity has taken place, but that would not be the primary issue on which the defence would, or could, rely under our legislation. They would rely on the extremely grave set of circumstances of the abuse of that child.
David Howarth: But that is the whole point of the words,
"where D acted principally out of".
The Minister's example does not work.
Claire Ward: The example does work, because the hon. Gentleman's amendment would still allow sexual infidelity to be used as a partial defence. [Interruption.] Having looked at the matter carefully, I am afraid that that is the case. Under the amendment as drafted, the moment that a person perceived that sexual infidelity had taken place-as they would if they saw their husband have sex with their child-they would rely on that defence. That would not be an acceptable defence, but there would be an acceptable defence on the grounds of those extremely grave circumstances of sex with a child.
Miss Widdecombe: I thank the hon. Lady for generously giving way to me a second time.
I doubt that I am the only Member who is getting very confused. The hon. Lady appears to be saying that sexual infidelity can never be a reason for pleading provocation to murder. We all accept that, but that is also the case with all the other reasons why people might plead provocation. The fact that somebody comes home drunk seven days a week is not a good enough reason to kill them, but we know that sometimes that can happen. What is unique about sexual infidelity that it must be removed from the almost endless list of circumstances in which somebody might be provoked?
7.15 pm
Claire Ward: The circumstances are quite different. Perhaps the right hon. Lady is suggesting that when somebody sees their husband or wife having an affair, that would be a partial defence for committing extreme violence-killing somebody. The right hon. Lady is clearly not in a position to be convinced, but the Government are clear that that cannot be an acceptable partial defence. Although many juries might disagree, there have been examples in the past in which a court has considered that sexual infidelity was a sufficient provocation to allow murder to be reduced to manslaughter. That is unacceptable.
I have been on my feet for nearly half an hour, and I want to ensure that hon. Members have an opportunity to speak in the debate. If the right hon. Lady has more to say, she will be able to do so if I finish my speech quickly. I hope that the hon. Member for Cambridge will see the flaws in his amendment, in relation to restricting and disregarding sexual infidelity as a partial defence. However, I look forward to listening to his argument for his amendment.
Mr. Deputy Speaker: Order. The hon. Lady will have to wait a little longer, because I call Mr. Dominic Grieve.
Mr. Grieve: Thank you, Mr. Deputy Speaker.
The first problem is that this is the first opportunity that we have had to consider the matter on the Floor of the House. It is a scandal that our procedures are so rotten, hopeless and archaic that, despite the Government's so-called modernisation, we were deprived of giving the matter any scrutiny before it went to the other place. From that, in my judgment, stems a great deal of the difficulty that we are experiencing.
The second problem is that the Minister's arguments this evening are utterly incoherent. Having practised in the courts, I am the first to accept that the vast majority of the partial defences advanced to the wicked act of killing another human being are largely untenable. Every day of the week in our courts, those arguments are trotted out and correctly rejected by juries. I have never been left in any doubt that juries are able to make up their own minds as to what reasonably constitutes the partial defence that may reduce murder to manslaughter on the grounds of provocation, and they have to do it all the time.
For reasons that I find most peculiar, the Government have decided that thousands of years of human history and experience should be jettisoned for a piece of political correctness and proclamation: a declaratory statement
that sexual infidelity can never justify violent behaviour. The Minister decided to pick some examples, but in doing so she started to undermine her case very quickly. Most reasonable people might have no difficulty concluding that the fact that one's partner is sexually unfaithful would not in itself constitute a ground on which anybody should raise a finger against them. However, human nature, and the nature of sexual relationships, shows that, unfortunately, that happens very frequently. Juries have to apply their mind to that, and in my experience they will tend very quickly to put things in different categories. They will take account of the circumstances in order to establish the extent to which a person has been deceived, the extent to which a person has been treated badly, or the extent to which general tenets relating to the reasonable humane behaviour that we owe each other have been violated.
The Minister said that if someone came home and found his or her partner was being sexually unfaithful with a child, that would not matter. What about the circumstances in which someone came home and found that his or her partner was being sexually unfaithful with a sibling, or a parent? Those things could happen, but they would not constitute a breach of the criminal law, unlike the Minister's example involving a child. I suggest to the Minister that all those examples are of a kind that might lead a jury, particularly if there are other circumstances that merit consideration, to - [Interruption.] The Minister says that that would be incest, but if a sibling were involved and both parties were adults, there would be no breach of the criminal law.
I have no idea whether the Minister has brothers or sisters, but it seems to me that if the Minister turned up and found that the person with whom she was currently having a sexual relationship-her partner-was having a sexual relationship with a close relative, a court would be entitled to take that factor into account. In such circumstances, it would be an aggravating feature because of the breach of trust. [Interruption.] I am sorry if the Minister does not understand what I am saying, but I think that I have made myself fairly clear. [Interruption.] Incest would be a different issue altogether. [Interruption.] The trouble is that the Minister did not listen to what I said. I was referring to circumstances in which someone is not only sexually unfaithful to his or her partner but sexually unfaithful within the context of that partner's wider family, including close relatives. That can happen without any breach of the criminal law. [Interruption.] I fear that if the Minister has not understood that by now, even an attempt by me to explain it behind the Speaker's Chair will probably be unsuccessful.
Mr. Deputy Speaker: Order. I am sorry to interrupt the hon. and learned Gentleman, but I feel that I ought to intervene on behalf of the Official Reporters. The introduction of matters by Members from a sedentary position may make it much more difficult for them to produce a reliable account of our proceedings.
Mr. Grieve: The Minister said, from a sedentary position, that I was not referring to the defendant. Of course I was referring to the defendant. The defendant is the person who has put the defence forward, and if the Minister has not understood that, it is beyond my comprehension.
Let me move on. The point at issue is this: why should the jury be deprived of the opportunity to take that factor into account? All I can say to the Minister is
that it seems to me that the Government's argument is entirely incoherent. They wish to issue a statement, but I think that in doing so they risk grave injustice in a very small minority of cases.
The second issue that the Minister has not been able to address properly is how a judge will direct a jury in cases in which sexual infidelity is one component of the story, but other components are also involved. How, logically, will juries be able to disregard the sexual infidelity component? It beggars belief that the Minister thinks that that will be easy.
When I intervened on the Minister, I gave an example which I think is worth repeating. One of the good things that the Government have done in the Bill is to enable people who have been battered and abused for many years to advance the partial defence, even in circumstances in which currently they have been prevented from doing so because they did not act in the immediacy of the violence meted out to them. I welcome that-I think it is an important development-but, as I said to the Minister, there will be cases in which the final trigger is the discovery of sexual infidelity in that context. It is beyond my understanding how a jury will be properly directed to put that issue out of their minds, but will be allowed to consider the other issues.
Mr. Hogg: What my hon. and learned Friend has said is, in fact, the considered view of the Law Commission, which eventually decided not to impose the formulae advocated by the Minister, but to leave it to the good sense of the judge to determine what could properly be left to the jury.
Mr. Grieve: I am grateful to my right hon. and learned Friend. Listening to the Minister, I began to think that I must have completely misread the Law Commission's report-yet that is what she told us, and I must tell her that that does not raise my level of confidence that she actually knows what she is talking about.
Claire Ward: Perhaps I can enlighten the hon. and learned Gentleman. Section 3.144 of the Law Commission's report, on page 65, states:
"Under our approach provocation should not be left to the jury in such a case because we do not see how any reasonable jury, properly directed, could conclude there had been gross provocation or that a person of ordinary tolerance and self-restraint might have acted in the same way as the defendant."
Perhaps the hon. and learned Gentleman would like to look at the report in a little more detail.
Mr. Grieve: It is the Minister who is being selective. If she turns the page, she will see the precise exceptions-in sections 3.146 to 3.150-which appear to me to undermine everything that she has said. Section 3.150 states:
"Our approach has been to seek to set out broad principles, to rely on the judge to exercise a judgement whether a reasonable jury could regard the case as falling within those principles and then to rely on the jury to exercise its good sense and fairness in applying them."
Further up the page, the report provides the precise examples that I cited to the Minister.
Let me return to a point that I made earlier. These are the Law Commission's original proposals. Since then, the Government have cherry-picked those proposals. I understand why they have done so, but, as the Law
Commission has made plain, the coherence of its proposals has been entirely undermined by their action. That constitutes a major problem in the way in which the Government have approached the legislation. I think I am correct in saying that for those reasons the Law Commission has indicated to the Government-and the Minister has not answered my questions since then during the passage of the Bill-that it believes that the decision should be left to the jury.
Mr. Winnick: Even if the hon. and learned Gentleman does not accept the Government's view, there are pretty good arguments on both sides, but given the violence that is perpetrated against women and given that far more women than men are murdered as a result of affairs and sexual infidelity, would it not be right-I speak as a layman, not a lawyer-for the House to convey the message that sexual infidelity must not lead to a manslaughter charge, because it constitutes outright murder? After all, we convey messages on all kinds of issues. That would strengthen the opinion held by so many of us that women should be protected against violence and, obviously, should be protected first and foremost against being murdered.
Mr. Deputy Speaker: Order. I realise that the hon. Gentleman has some knowledge of these matters to contribute to the debate, but that was a very long intervention and we have a limited amount of time left.
Mr. Grieve: I am grateful to the hon. Member for Walsall, North (Mr. Winnick), but I wish to bring my speech to a close.
I certainly do not wish to see circumstances in which the House provides an excuse for men to kill women simply because they perceive that the women have been unfaithful to them-or, for that matter, vice versa: I do not want to see women killing men. On that I am sure we can all agree. That, however, does not justify the remarkable step that the Government will take if they decide that this is one of the components that can be entirely disregarded by a jury when it comes to consider the plea of provocation and the partial defence. I simply do not understand the logic.
History suggests-certainly, the cases that I have seen suggest-that although on occasion the defence may be advanced as a mere cover for the violence of one party to another, sexual infidelity is sometimes an important and relevant component of the cocktail of events that combine to make a reasonable person snap. For those reasons, I think it is very dangerous for this House to deprive juries of the opportunity to use their good sense to evaluate that evidence, but I am afraid that that is what the Government have chosen to try to do, and I do not understand the rationale behind that. I am very wary of legislating in a symbolic fashion. Juries are entitled to consider these points and, in my experience, if we allow them to do so, they will come up with the right answers. For those reasons, the Lords amendment deserves to be supported.
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David Howarth:
First, I agree with what the hon. and learned Member for Beaconsfield (Mr. Grieve) said about this being the first time that the Bill's murder provisions have been considered on the Floor of the
House. It is extraordinary that the business was arranged in such a way that we could not discuss these and many other important issues about the law of murder.
I also associate myself with the hon. and learned Gentleman's remarks on what has happened in respect of the Law Commission. It was given a very narrow remit in the first place, in that it was not allowed to consider the question of a mandatory life sentence for murder; it then produced the best possible report it could in the circumstances-even though it might not have been what it wanted to do had it been left to its own devices-and then the Government cherry-picked even that. I must say that it is hardly convincing for Members on either side of the debate to cite what the Law Commission said in its reports, as I do not think they reflect in any way what it thinks.
There are three different kinds of reason on offer in this House and the other place in favour of dropping the sexual infidelity provision the Government originally proposed-clause 45(6)(c). I want to make it clear from the start that I do not agree with the major reason given today, which was implicit in what the Lords said, which is that somehow it is all right for men to use sexual infidelity as an excuse for murder. That is unacceptable. However, two other reasons were on offer, and I shall need to talk about them as well.
Some Members have rightly said that it is a matter of fact that there are cases when men especially-although this can happen the other way around-kill in a rage about sexual infidelity. The issue is not whether that is a fact, but whether it is an excuse; it is a question of value, not of fact. On the question of value, I am entirely with the Government. I do not agree that that is a proper reason to offer in defence against a charge of murder, especially given that a charge of murder is one where there is a requisite intention to kill. The defendant is therefore saying, "Yes, I did have that intent. I had all the requisite intention to murder, so it was not that I did not know what I was doing. I did know what I was doing, but the action arose out of these circumstances." That is an unacceptable excuse.
I have slightly more sympathy with the second reason raised both here and in the other place, which has to do with the jury. I think the jury does have a place in these cases. I do not think the Government have excluded the jury in the current version of the clause in question either, because they do not say that the judge shall tell the jury how to decide any case where there is sexual infidelity. They simply say that the sexual infidelity is to be disregarded. To whom is that clause addressed? The Government are not entirely clear about that.
Mr. Hogg: Are the Government not saying that the judge must direct the jury that it must disregard questions of sexual infidelity?
David Howarth: Precisely, but there is still the judge saying those words to the jury, and it is for the jury to decide what they mean in a particular case. Therefore, even the Government have not succeeded in taking the case entirely away from the jury. What does "disregard" mean? It is for the jury to make that assessment.
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