Coroners and Justice Bill

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Q 62Mr. Garnier: I know that we are short of time and I do not want to be unfaithful to your written submission, which we have. Perhaps I can move you on to the slow-burn issue, where we deal with the proximity point about whether the loss of self-control has been aroused. I ask you to look at clause 42(3) which says:
“This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.”
No time scale is put there, and I wonder, considering amendment 3, whether you think that that is a sensible way forward to limiting the ambit?
Professor Horder: That is an interesting proposal, and I would need to think about it more. It would draw the law a little closer to the position that now obtains in Scotland, where there is a requirement of suddenness, but understood more broadly than the way in which it was understood here, when it related to loss of self-control. There is no loss of self-control requirement, but there is a suddenness requirement in Scottish law—I think that that is the position.
Whether or not that is so, the proposal would try to narrow the time frame, which would be helpful. That is necessary because it is unclear under the present law what the justice is of allowing someone to brood for days or weeks and then, when they come across the ultimate victim, explode with rage just from seeing them. There is no fresh provocation. Many people would call that a revenge killing, despite the ultimate loss of self-control. Under the old law there would have had to have been a continuing heated blood episode during which the person was killed—you were not allowed to calm down and then boil up again. That is the concern and that clause might well meet the point.
The only issue would be of over-complicating the law if we had too many of these kinds of amendments. It is a difficult area. One can see how the law ended up stating that there must be a sudden loss of self-control; it is trying to meet the point that you are making here.
I am concerned, though, about what the courts will do when confronted by cases where there is forearming—where someone goes off to get a weapon before coming back and then killing the victim. What we hoped in the commission was that that would be dealt with by the objective question of whether a reasonable person might have done as the defendant did. While focusing on the loss of self-control, one must bear in mind that that is always there as a safety net or long stop. Juries will not take the view that reasonable people will go off and forearm themselves heavily in order to be ready for a confrontation; that is not a reasonable thing to do.
Q 63Mr. Garnier: You also have some concerns about the sexual infidelity issue referred to in clause 42(6)(c).
Professor Horder: Yes. My concerns so far are about tweaking or reshaping the law a little. I do not think that they are of as much fundamental importance as this one. This has been controversial within the legal community and beyond.
I have made various, perhaps rather disparaging, remarks about clause 42(6)(c). Now, having reflected on it further, I wonder whether it is sensible to put in primary legislation—hard law—the matters concerned in clause 42(6). Would it not be better if those are set up as guidelines for judges, as things to which they should refer before they direct the jury, as is commonly the case anyway? Would it not be better if they agree with counsel beforehand exactly how they will direct the jury on provocation, and on what they will say?
There is a risk that clause 42(6)(a), (b) and (c) are micro-management of the judicial direction to the jury, and they might be better purely as guidelines. There is a broader issue about clause 42(6), but clause 42(6)(c) is too categorical in its terms. In particular, the idea of something that is said constituting sexual infidelity is a rather curious one; I wonder whether that is, in fact, what is being aimed at—others may be able to speculate on that with a greater degree of information than I can.
Q 64Mr. George Howarth: Where does intoxication fit in with loss of control?
Professor Horder: The traditional view has always been that in deciding whether clause 41(1)(c) is satisfied—that a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint, might have reacted in the same way—the judge will automatically say to the jury that intoxication must be disregarded, and you would not need to do anything to ensure that. For a belt-and-braces approach, you could stick something in on that, but it is second nature to judges to say that that should be disregarded. That refers, of course, to voluntary intoxication, as it is a different matter when it is involuntary, but we can leave that to one side.
However, there has always been a question mark over whether intoxication is relevant in deciding whether there was a loss of self-control—the old, co-called subjective condition—and whether in fact that was produced in part by intoxication. There is some authority, although not very satisfactory, to the view from the beginning of the 20th century that stated that you do take intoxication into account when deciding whether someone in fact lost their self-control. There is some authority to that effect, although it has not been tested in the courts since, as far as I know, and it would be interesting to see what they would say about that.
That might sound worrying, but the point to grasp is that whether someone feared serious violence or lost self-control are purely matters of empirical fact, so anything that led or may have led to the loss of self-control is relevant to the establishment of that fact, including intoxication. I do not think that one need worry, because the defendant is in a real dilemma here. If they say, “The reason I lost self-control was because I was intoxicated”, they will get caught when the swing comes around on the objectives point, because the judge will say, “Aha, a reasonable person would not have done as you did.” So we are probably alright on that point.
Q 65David Howarth: I have two questions. My first is on loss of self-control and the nature of it, which has never been defined. If loss of self-control is quite an easy test to fulfil, how will the clause as drafted lead to 10 to 20 more convictions for murder a year, which is what the Government claim it will do? Where would those extra convictions for murder, as opposed to manslaughter, come from?
Professor Horder: There is an element of speculation here. I listened to what the Minister said about that issue and did not disagree with anything she said. I think that the number of cases in which the question will be whether self-control was or was not in fact lost will be minuscule, or at least very small.
Without wishing to sound like a Government spokesperson, I will say that the Bill is designed to tighten up the law to get rid of the cases that are an affront to the justice system. In such cases, the defence is getting in front of the jury, where it should not be, and they are acceding to it not because the jury lacked common sense, but because the way the law is structured means that the judge might give it disproportionate emphasis by mentioning it in the way the law requires him to explain it, and the jury might understandably be misled into thinking that the defence applies in some way, and that results in injustices.
In general terms, I think that the Bill addresses those concerns. I do not want to disagree in any way with what the Government said about the numbers of convictions likely to be affected, but it is to a certain extent a matter of speculation. We do not know whether those clauses might result in the defence being more inclined to plead it than it has hitherto been. I simply do not know.
Q 66David Howarth: What you are saying would be achieved simply by subsections (5) and (6) of clause 41, or subsection (6) as you would redraft it, because that would take the ridiculous cases away from the jury and there would be no need to do anything at all.
Professor Horder: If you mean that that is the only clause in which we need to reform provocation, I am not sure that that is right.
Q 67David Howarth: No, I am talking about the effect that you mentioned.
Professor Horder: It would have the chilling effect in those terms, but the Bill rightly addresses other issues on the kinds of characteristics that can be relevant, which are mentioned in clause 41, and of course the broadening of the defence to include fear of serious violence cases. That is an important step forward, and it is just not credible that the common law could take that step now. There was an opportunity back in the ’50s, but that will not happen again in common law, so in that sense justice needs to be done through legislation.
Q 68David Howarth: That would reduce the number of murder convictions rather than increase it.
Professor Horder: That may be right, but, ironically, it might increase the number of manslaughter convictions, because there may be cases in which the jury splits the difference. That raises some concerns, but it is difficult to predict the exact result in the courts. I do not think, however, that the impact will be huge.
Q 69David Howarth: That was the first point. The second point is about the meaning of clause 42(4)(b). It sets out the defence, whereby the thing
“caused D to have a justifiable sense of being seriously wronged”.
How do you think that will be interpreted—especially “justifiable” and “seriously”? Are they questions for the jury, for the defendant—that the defendant thought it justified and serious—or for the judge, whereby he could take the case away from the jury on the point that he thought that the proposal could not be justified or count as being serious?
Professor Horder: The straightforward answer is a mixture. It is a question for the judge in the initial case of whether to leave the issue to the jury, because he must decide whether a properly directed jury could conclude that the defence applies—meaning the entire picture, including whether those words might be satisfied. In that sense, as a threshold matter, it is a concern for the judge. But, once it has passed the judge and is in the realm of the jury, they will have to consider whether the words are satisfied.
You asked, what does that mean? It means that, rightly, there will be more of a burden—not legal but tactical—on the defendant to explain himself or herself, and to answer the question, “Why did you respond in this way to the words, conduct, whatever it might be? Give an account that gives the court a sense of why there was a justifiable sense of being seriously wronged in the way that you reacted or took what was said or done.” Currently, that burden does not really exist at all. As soon as there is any evidence of provocation, the judge leaves the matter to the jury and the defendant is not called on, tactically or in any other way, to explain themselves.
By that I do not mean that there will be undue pressure to give evidence when there would not otherwise be. I am talking not about inroads on the right to silence, but about a general tactical matter. It is entirely reasonable—from the viewpoint not just of victims’ families but of the jury and the court as a whole—to expect the defendant to give some account of why he or she responded lethally, and the provision will do something to achieve that.
The Chairman: In the limited time available, I want to move on to assisted suicide.
Q 70Dr. Iddon: On clause 46, do you know the Government’s motives for rewriting the language? In the words of the explanatory notes, it is to “modernise the language”, but do you agree that the clause simply restates the existing law and does not change it?
Professor Horder: If there is a change, it is not significant. Modernisation always involves at least some change, otherwise what is the point? I think, however, that the measure is consistent, and I support it because its use of language is consistent with that which the Law Commission has recommended across the board when someone contributes to another person’s crime or, in this case, act of suicide. We, at the Law Commission, after extensive consultation identified encouragement and assistance as the essence of what is going on and got rid of the language of aid, abet, counsel and procure. As you would expect, judges have bent those words into shape so that they will work and just about pass muster, but from time to time, there will inevitably be cases that put pressure on the meaning of those words. One keeps having to go back to what was meant by them in the 1861 statute, and even before that, since that was only a consolidating statute. There is still a debate about whether it was meant to just restate the common law or do something new. We need to get past that debate and use this—I believe—more modern language. Although I accept that there may be some changes that have not been foreseen, we have spent enough time looking at the meaning and scope of this wording to be confident that the changes that are made, if any, are minimal.
Q 71Dr. Iddon: In your estimation, would that not lead to an increase in prosecutions?
Professor Horder: I am not sure that I am competent to answer that question. If it is not intended to do that, and I do not believe that it is, it would be rather a surprise if that was the effect that it had. In any event, I am not sure that there is any extra scope or range that a prosecutor could latch on to. It is always possible that if you modernise wording people suddenly understand it and start to use the law more. That is conceivable, but we all know that prosecuting in these cases is, or may be, an extremely sensitive and difficult matter.
Let me give you an example of when I think that the wording has been understood. We will all remember that incident reported in the newspapers when a young man, I think, was standing on the side of a building considering jumping off and the crowd below was shouting, “Go on! Jump! Do it!” The police got very cross and said, “Although that is despicable and disgraceful, there is nothing you can do to these people.” That is completely wrong. Of course you can prosecute them. You can prosecute them for aiding and abetting suicide, but the language of aiding and abetting does not sound right because it makes it sound as if they were up there giving him a shove or something. So, if senior police officers can be misled by this language into thinking that no prosecution can be undertaken in such a case, we believe that the language of encouraging and assisting will make it crystal clear that in, such cases, if you can arrest someone, you can prosecute.
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