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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