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Mr. Grieve:
There is a point that I should perhaps have made. Ironically, I actually think the impact of these proposals on juries will probably be minimal. I
think it will be very easy for a jury to disregard a judge's direction in this regard if that jury happens to disagree with it, because that direction will usually be merged with other issues that fall to be considered, and it will therefore be impossible to disentangle how the jury arrived at its decision.
David Howarth: One of the most important aspects of the jury system is that the jury gives no reasons, so we never know the answer to such questions.
I agree with the Government that there is no reason in principle why the legislature should not set the criminal law. It is for Parliament to say what the law should be, and Parliament is perfectly entitled to say that certain excuses should not count. That in itself is not an argument against the Government's position.
Members seem to have missed the point that this part of the Bill already includes another substantive restriction on what can count as a justifiable lack of control. It is contained in clause 44(4), which says that the loss of control defence does not apply where the defendant
"acted in a considered desire for revenge."
Revenge is therefore also excluded in the same way. Perhaps a jury will think otherwise, and consider that there should have been such a defence in the circumstances before it. No one has yet complained that that provision should be removed simply because it interferes with the rights of the jury. I am not entirely convinced by the jury point, therefore. The Government are entitled to propose changes in the substantive law, as long as they admit that in the end these questions of fact will, even in their own version, be decided by a jury.
The third reason was more persuasive. It has been alluded to here, but it was discussed at great length in the other place. It takes us back to the evidence the Law Commission gave to the Public Bill Committee. It is the argument that the drafting of clause 45(6)(c) was defective-or, to borrow a word used by one commissioner, "bizarre". That clause said:
"In determining whether a loss of self control had a qualifying trigger...the fact that a thing done or said constituted sexual infidelity is to be disregarded."
There is an enormous number of things wrong with that formulation. We do not have time to go through them all, but the first thing that is not at all clear is whether it does the job the Government want it to. What is to be disregarded? Is it sexual infidelity? No, the clause does not actually say that. It is merely the fact that something
"done or said constituted sexual infidelity".
In other words, the infidelity itself is not to be disregarded, but merely the mental process going through the head of somebody else, who comes to the conclusion that something constitutes sexual infidelity-that is what is to be disregarded. It is not clear that that is what the Government wanted. Secondly, how can a thing that is said constitute sexual infidelity? What words constitute sexual infidelity? I cannot see how that works.
Thirdly, what counts as sexual infidelity anyway? The Minister's examples show the problem is a difficult one to resolve. She put forward lots of examples of what she claimed was sexual infidelity, although it is not clear whether a jury would agree. What about unmarried couples? What about situations in which the couple disagree about the degree of fidelity that is expected in
their relationship? This takes us back to the point the law commissioners made, which is that presumably what the Government meant was something like sexual jealousy or envy, rather than infidelity as such. There are other ways of drafting the clause that get out of at least some of these problems. I do not say that the amendment we offer solves all the problems, but I think it solves at least some of them.
On Report, had we been allowed to debate it, we would have offered an even more comprehensive solution that would have separated out the various problems in this entirely unsatisfactory area of the law. One area in which the Bill fails is that it does not distinguish between loss of control through anger and cases of long-term violence where people-especially women-fear repetition of the violence. Those are entirely different cases. The second sort of case is not really about loss of control at all, and should be subject to a separate defence. None of our proposals were discussed, and it is not possible at this stage to rewrite the whole of the murder provisions-although if that were possible, it should have been done.
It is possible, however, to offer a cut down version of what we offered on Report, by way of amendment (a). That amendment deliberately ties the issue of sexual infidelity to a specific part of the trigger provisions, namely that the circumstances should be
"of an extremely grave character".
It ties it down to how the Bill works, rather than being at large which is how the current drafting works. It avoids the "constitute" problem by concentrating not on the thought processes of the court, but on the actions and intentions, or reasons for action, of the defendant. We hope that it adds more comprehensibility to the sexual infidelity language by referring to "sexual jealousy", which is slightly clearer.
The Minister said that what was wrong with our amendment was that there were circumstances in which the defendant might "perceive"-she used the language of the amendment-that what was going on was sexual infidelity whereas, in reality, it was not, or someone else might think that it was not. That ignores, first, that this is a jury question in the end-that cannot be got away from; this is criminal law, so the jury decides this kind of issue. It also ignores the fact that the amendment starts with the words
"where D acted principally out of a desire".
The key phrase is "acted principally". The jury decides whether someone acted principally out of the various matters referred to in the amendment. The Minister's problem with the subjective nature of "perceived" does not arise unless the jury thinks that that is the principal reason. No reasonable jury could possible believe that in the circumstances she put forward the principal reason for the action of the killer was sexual infidelity-even the perception of it.
The objections that the Minister raised do not work. I simply add that whatever the problems with our drafting, they are as nothing compared with the problems in the Government's drafting. Faced with a choice between something slightly imperfect and something plainly bizarre, we should choose the slightly imperfect. Thus, if circumstances arise in which it is possible to vote on amendment (a), I request that we do so.
Mr. Hogg: I think that my right hon. and hon. Friends wish to contribute to the debate, as perhaps do some Labour Members, so I shall be brief and compress my remarks to something shorter than I originally had in mind.
The law of provocation has always been one of the most difficult aspects of the law of homicide, and over the years it has given rise to a great deal of judicial comment and controversy. Broadly speaking, the recommendations of the Law Commission, which are encompassed in this Bill, are to be welcomed, but there is one exception: the proposal to exclude from the triggering event the conduct entitled "sexual infidelity". I am very much with my hon. and learned Friend the Member for Beaconsfield (Mr. Grieve), who speaks from the Front Bench, in believing that this is essentially a matter for a jury.
Perhaps the House will forgive me if I recount a case that I dealt with some three or four years ago-I was acting for the defendant, who was charged with murder. He was impotent, and he often tried to have sexual relations with his wife and failed because of his impotence. The wife then developed a long-standing sexual relationship with a lover, and that was known to my client. There was then an occasion when my client tried to have sexual intercourse with his wife, but because he was impotent he could not achieve that, at which point the wife began to abuse him, laugh at him and say that he was not a patch on the lover. My client lost self-control and strangled his wife.
Within that cocktail of events, the sexual infidelity of the wife played a prominent part, but if we are to accept the Government's position, that sexual infidelity would have to be disregarded. I see absolutely no justice in providing in statute law that what was clearly, on the face of it, a relevant fact should be disregarded. My client was convicted of murder-that is to say, the jury in that case determined that the conduct did not amount to provocation within the meaning of the law, and he was convicted of murder. I was very unhappy about that verdict, but that is a wholly different matter. What the case shows is that a jury is perfectly capable of addressing this issue and taking a broad view of what is just.
The Minister has said that her views were in accord with those of the Law Commission, but that is not so. What is correct is that the Law Commission said in its report that male possessiveness and jealousy should not, of themselves, constitute good cause. It relied, perfectly understandably, on the judgment of Lord Hoffmann in the very important case of Smith (Morgan), when he commented on the Australian case of Stingel. If the Minister were to read further on in the report, to the following page-this is the point to which my hon. and learned Friend the Member for Beaconsfield was drawing attention-she would see that it makes it clear that where additional material comes into play-for example, taunting somebody about their impotence-it is right that consideration of that combination of events should be left to the jury.
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That is why the Law Commission, in its considered view, held against the Minister's position of excluding a particular category of event from the triggering events. If she would be good enough-I am sure she will-to
examine paragraph 3.168 on page 70, where its detailed recommendations for inclusion in statute law are set out, she will not find a recommendation that sexual infidelity should be excluded from the triggering categories. She will not find it, because that was not the Law Commission's view. Its view-it happens to be my view, too-is that these are matters best left to the jury. Very often, the jury will decide that the conduct does not amount to provocation, as in the case I told this House about, but sometimes it will decide that it does. If we exclude that fact from the jury's ability to take account of the matter, we bring about a profound injustice. I believe that the views expressed in the other place are wholly right and that this provision has been added-probably at the suggestion of the Solicitor-General, who is no longer in her place-out of a desire to be politically right. I do not think it just and this House should not go along with it.
Miss Widdecombe: What I have been totally unconvinced about tonight is why this particular motivation and provocation should uniquely be removed from a jury's discretion in deciding whether or not it was, in the circumstances rehearsed, an understandable ground for somebody losing control. The Minister has said that sexual infidelity cannot be, on its own, a cause for killing, and we would all agree with that. However, the whole point about loss of control is that the person does not make a rational assessment at the time of what he is doing and does not necessarily intend to kill, but is provoked into making an attack. On that basis, just about every single reason for losing control would have to be taken away from a jury's discretion. The Minister has not shown that there is some factor in this one cause of loss of control that justifies its uniquely being taken away from a jury's discretion.
It is no reason to kill somebody if they get drunk, but let us consider a situation where a man comes home night after night as drunk as an owl. If his wife says to him "Don't do it again" and then moves towards him, pushes him in her fury at his being drunk as an owl and he falls over, hits his head and dies, she will say, "Of course it was not a good enough reason, but I lost control." Why somebody-it could be a man or a woman; it does not have only to be a man-coming home and finding his spouse of x years in bed with somebody else shall not trigger a similar loss of control is beyond me.
The fact is that one cannot specify what is and is not a reasonable ground for loss of control for the simple reason that nothing ever seems reasonable when one looks at it from the point of view of somebody who is totally in control and rational. It is for a jury to decide the following question: was the provocation in this incident-whatever that incident may be-sufficient to cause that person, on the spur of that moment, to kill in that way? That is entirely a matter for the jury to decide. The hon. Lady has not made any case tonight for the argument that, quite uniquely, the one circumstance in which the jury cannot make that assessment should be sexual infidelity.
Mr. Straw:
I was racking my brains on this, and got a bit of approval from those on the Liberal Democrat Benches who are better versed on this than I am. I think that the right hon. Lady would find that in such circumstances-if, in her delightful phrase, a man was
as drunk as an owl and the woman involved just pushed him and he fell, hit his head and died-since we can infer from what she said that there was no intention to commit either murder or grievous bodily harm, no charge of murder would lie, still less be followed by conviction.
Miss Widdecombe: That is the whole point and I am sorry that the Lord Chancellor somehow cannot understand it. The whole point is that an intention to kill is not formed.
Dr. William McCrea (South Antrim) (DUP): Leaving aside the example of drunkenness that has been given, as we are talking about sexual infidelity, is it not true that we are not talking about somebody who intended to kill or who was out for revenge? We are talking about someone who snapped and lost control, and a jury should therefore have all the facts.
Miss Widdecombe: The hon. Gentleman sums it up exactly. Somebody snaps and loses control, and whether or not a circumstance is sufficient to cause that snap will be decided by the jury in every circumstance, no matter how trivial, other than sexual infidelity. I do not hear the case made for an exception for that single category of provocation.
Mr. Straw: I understand the right hon. Lady's concerns and this is an inherently difficult issue, but let me say that it is nothing to do with political correctness. To say that is to trivialise this difficult issue. She chose the example-I did not-and in that case no charge of murder would lie and, if there were a charge and that was the totality of the evidence, it would not go to the jury.
Miss Widdecombe: So, if a woman taunts her husband about her sexual activity with a third party and he, in his fury, moves towards her and shoves her hard and she falls over, hits her head and dies, that is not a provocation because, uniquely, the jury will be told that it cannot take sexual infidelity into account. It is nonsense. I shall not go on repeating the same point, because it has repeatedly failed to be answered and I am aware that we would quite like to vote on the amendment.
Claire Ward: The hon. and learned Member for Beaconsfield (Mr. Grieve) has suggested that this is essentially about the Government trying to remove a responsibility from juries simply because juries would find it too difficult to deal with and because it is too difficult for judges to direct juries. I disagree that judges will not be able to direct juries. Judges are perfectly used to directing juries about what they can and cannot consider-they do it every day in court. It is not beyond the ability of judges to tell juries that sexual infidelity cannot be a qualifying trigger for a loss of self-control. If something else is relied on as the qualifying trigger, any sexual infidelity that forms part of the background can be considered but it cannot be the trigger. That is essentially what the legislation seeks to do-to stop the act of sexual infidelity being the trigger that enables people to say that these are extremely serious and grave circumstances.
Mr. Grieve:
My reading of clause 45(6)(c) does not match the comment that the Minister has just made about being able to consider it in the background as
long as there are other factors. There is a clear contradiction between the wording of subsection (6)(c) and her intention. That is why I urge her to be so cautious about the clause, which I think has been very poorly thought through.
Claire Ward: The partial defence for loss of control exists on the basis that there will be certain sets of triggers-things that take place that cause the loss of control. Sexual infidelity is being disregarded as an acceptable trigger that can play into the loss of self-control. We believe that it is acceptable to do that precisely because we do not think that sexual infidelity, in itself, should be considered an acceptable reason for somebody to have killed their partner, husband, wife or whomever the circumstances might involve. The background information might well form part of the case, but sexual infidelity will not be the trigger for allowing the defence of that partial loss of control.
Mr. Grieve: I am grateful to the Minister for giving way. At the risk of taking up more of her time, I point out that she knows that clause 44(1) already does not apply if
"in doing or being a party to the killing"
"acted in a considered desire for revenge."
That is a very important clause that I entirely agree with, but the fact that it is there means that the examples she has been giving about killing on the ground of sexual infidelity based on a feeling of vengeance could not come into the picture anyway. That is why it is such nonsense to include this provision, and why it will be impossible for a judge and jury to disentangle the facts when they are all mixed up together.
Claire Ward: I completely disagree with the hon. and learned Gentleman. The judge and indeed juries are quite capable of considering the information that is available to them as background information. We are saying that it is completely unacceptable that sexual infidelity in itself should be used as the trigger to allow the defence of loss of self-control to come into play. That is essentially what this is about, and I am quite surprised that the right hon. and learned Member for Sleaford and North Hykeham (Mr. Hogg) feels that it is appropriate-indeed, this featured in the case he discussed-for somebody who has committed sexual infidelity to be told by their killer, or for it to be determined in a court case by their killer, that that is essentially just cause. "You have committed sexual infidelity and that is just cause for me to commit murder," is not an acceptable claim.
Mr. Hogg: That is not what I was saying. I was saying that when there is a cocktail of events-in the case I cited, they included the sexual infidelity that formed the background, together with abuse and taunting of the defendant-the combination is capable of amounting to an appropriate trigger. Incidentally, that is also the view of the Law Commission, and when it took that question out to sample-I think the Minister will find it on page 66 of the report, but I could be wrong-that was also the view of the focus groups to which the question was addressed.
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Claire Ward: The right hon. and learned Gentleman and I are clearly not going to agree on the issue, and unfortunately the right hon. Member for Maidstone and The Weald (Miss Widdecombe) and I are not going to agree either-whether it is on sets of circumstances, sexual infidelity or drunken owls.
In the remaining time, I want to deal with some of the other points. The hon. Member for Cambridge referred to the issue of whether sexual infidelity is a thing done, a thing said or both. We have used the words "done" or "said" in the provision, to the effect that the fact that a thing done or said constituted sexual infidelity is to be disregarded. By doing so, we are making it clear that the subsection relates back to the earlier subsection, which refers to
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