Coroners and Justice Bill

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The Chairman: Thank you. The clock has beaten us. Mr. Starmer, we are very grateful. You have assisted the House and Committee to a considerable extent.
Could I have the next witnesses, please?
1.40 pm
The Chairman: Good afternoon, lady and gentlemen. We welcome Mark Stobbs, director of legal policy at the Law Society; Linda Lee, deputy vice-president of the Law Society; and Peter Lodder, QC, chairman of the Criminal Bar Association.
Q 270Mr. Garnier: Thank you for coming. Could I ask you about the changes in the Bill affecting the law of homicide provocation? Starting with Mr. Lodder, are you satisfied that what we see in the Bill now adequately answers a real or perceived problem in relation to the law of provocation?
Peter Lodder: There is a number of problems in the area of provocation, not least the state of the law at the moment, under which provocation is a matter that has to be left to a jury—even if it has not been raised by any party in the course of the trial—if there is some basis for it. The basis on which it continues to be left to the jury can be, if one is completely open about this, somewhat flimsy. It is rather strange for juries dealing with murder cases to be told by a judge right at the end of a trial—the issue not having been raised at any stage beforehand—“By the way, you can consider the issue of provocation”, and then to hear him identify what it is that might support such a finding. To that extent, there is undoubtedly some change required. Whether it is the change as formulated in this Bill is another matter.
Although we are in broad agreement with what this Bill seeks to achieve under the heading of “loss of control”, we have a few reservations. We are not presently very happy with the title “loss of control”. I appreciate that this is an attempt to break away from the law as it has been but provocation seems to us a clear English word. The suggestion made by the Law Commission in its report was that the word “gross” be added before it so that the jury could understand the threshold for achieving it as a partial defence. We are supportive of that. We wonder a little whether “loss of control” conveys the right message. I appreciate that when one looks at the individual clauses there is some explanation of what is meant but, inevitably, because defences tend to have tags that everybody easily and conveniently refers to, it will be called the “loss of control defence”. In our view “loss of control” does not convey the same standing or high threshold as “gross provocation” would.
Apart from that general observation, we do have specific reservations about the sexual infidelity clause. We have set out in our briefing document—a copy of which I hope you have—two examples of situations where sexual infidelity as a root cause might give rise to provocation or loss of control, but in a factual matrix which is not dependent solely on sexual infidelity. We understand and we do not disagree with the Government’s desire to stop spouses thinking that they are justified in killing each other simply because they have strayed outside the marital vow of fidelity. However, we are concerned that the Government seek with this clause to discount it completely in every circumstance, so we have reservations about it.
Q 271Mr. Garnier: Before the others come in, do you also have a reservation about the proximity of the provoking event to the killing?
Peter Lodder: This is a difficult area. The word “sudden” will be removed by the Bill and, as I understand it, the Government are trying to deal with what are sometimes called the slow-burn cases, in which, for example, a wife is exposed to a continual pattern of abuse, be it violence or another type, and eventually loses control—to use the new phraseology. We have concerns about that, although we have sympathy with the Government’s objective and can see that there is a purpose in having a clause that deals with those scenarios.
Q 272Mr. Garnier: Do you see a problem in trying to marry—sorry, that is the wrong word to use—the ability to deal with slow-burn provocation or loss of control and clause 41(4), which outlaws a considered desire for revenge? It is on page 25:
“Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.”
Are courts going to find it difficult to distinguish between a slow-burn but none the less “justified” loss of control and a considered desire for revenge? The two may sometimes merge.
Peter Lodder: They may, and that is where a jury comes in. Our understanding of how it is likely to be put in a court is that there will be an element of the straw that broke the camel’s back, so a trigger incident will eventually be the cause. If the factual background is that there has been a sustained period of abuse and then deliberate plotting and nothing happens, save that a week or so later there is an event that leads to the death of whichever spouse, the subsection may create that difficulty, yes.
Mark Stobbs: We broadly agree with everything that the Bar Council has said on that. We think that it is unfortunate that the Government have not implemented the full recommendations of the Law Commission, which provided, we thought, a very elegant way of avoiding the problems that a mandatory death sentence causes and that the existing—
Q 273Mr. Garnier: Do you mean mandatory life sentence?
Mark Stobbs: Yes, mandatory life sentence, I apologise.
Q 274Mr. Garnier: You are talking about murder one, murder two.
Mark Stobbs: Yes, and the defence of provocation arose in an attempt to avoid that in sympathetic cases. We think that the proposals probably help a bit, but we share the Bar Council’s view on the sexual infidelity terms, which seem far too broad and may cause substantial difficulties for juries and judges.
Q 275Mr. Garnier: Do you think, either as individual organisations or together, that it would be appropriate for you to present an amended scheme for clauses 46 and 47 that meets your concerns without destroying the Government’s purpose, which they are always keen to maintain.
Peter Lodder: Do you mean 46 and 47? The clauses about encouraging or assisting suicide.
Q 276Mr. Garnier: Sorry, 41 and 42.
Mark Stobbs: I am sure that he is very happy to do that.
Peter Lodder: I have not had the chance to discuss this, because, I confess, I did not have an opportunity beforehand. We have considered a possible alternative, however; indeed, I have brought along some photocopies of the document. If it might assist you, I am happy to distribute it and, for this purpose at least, to read it into the record. We consider that it might be appropriate to add,
“unless the fact that the thing done or said which constituted sexual infidelity is relevant to other things done or said (or both) which do not constitute sexual infidelity but which are put forward as qualifying under subsection (4) of this section.”
Its purpose is to cater for the situation in which there is a mixture of sexual infidelity and taunting, as in our two hypothetical examples.
Q 277Mr. Garnier: May I ask that those bits of paper be distributed?
Peter Lodder: It was prepared slightly on the hoof, but it will help to guide some thought on the issue.
Q 278Mr. Garnier: Yes, indeed. You are a criminal law practitioner, you know about this and you will have seen the practical consequences of badly drafted criminal justice legislation that has been passed into law. You will also appreciate that, at some stage, a judge will have to sum up to a jury and, although I may have political differences with the Government, we share the desire to ensure that, if we are to pass a criminal justice Bill every year, we make it as sensible as possible. So, any assistance that you could give on the drafting would be gratefully received.
The Chairman: Order. One moment. It is a trifle unorthodox, but I am prepared to allow the paper’s distribution if it is to the Committee’s advantage. I want to ensure, however, that every member of the Committee has a copy.
Mr. Garnier: Thank you. Mr. Lodder has read it out, too, so it will appear in the report of the Committee’s evidence session.
The Chairman: Are there any more questions?
Q 279David Howarth (Cambridge) (LD): I have been trying to get to the bottom of a statement in the Bill’s impact assessment. It says that the provisions on homicide will result in 100 to 200 more people being in prison. The Government have clarified that to mean that 10 to 20 people a year will be convicted of murder rather than of manslaughter, but we are trying to understand where the Bill provides for that.
I shall start with the sexual infidelity aspects of the Bill. How common is it these days for a simple sexual infidelity provocation—of the sort that Mr. Lodder described—to succeed? I notice that he was prosecuting in a case that is often cited, so perhaps he could start. Are these cases so common that they, themselves, would account for the 10 to 20 cases a year?
Peter Lodder: I am not aware of such a case involving purely and simply sexual infidelity.
Q 280David Howarth: Often, I notice in the reports that diminished responsibility and provocation go together in such cases. Is that quite common?
Peter Lodder: There are some cases in which, frankly, you will run any defence you think you can possibly run, because there is a rather overwhelming case against you. But, if you are to run diminished responsibility, there has to be some medical basis; you cannot conjure it out of the air. So, if it is available to you and a real basis, of course it would be run as a defence. Provocation may run in tandem, but, as I have said, the difficulty with provocation is that the judge can raise it at the trial’s conclusion even though one of the parties has not raised it as an issue in the case.
Q 281David Howarth: It appears to be the Bill’s major law-tightening reform. Would that, in itself, account for the 10 to 20 cases a year?
Peter Lodder: Not in my experience. In my opinion, where provocation is raised under the circumstances that I outlined at the beginning, and which we have just discussed again, it rarely causes any change in the jury’s view.
Q 282David Howarth: Are there any other parts of the new defence of loss of control that might account for an increase in the number of convictions for murder?
Peter Lodder: I do not think so.
Q 283David Howarth: Could it be in the diminished responsibility area then? Is there a distinct tightening in diminished responsibility that could account for an increase in convictions?
Peter Lodder: I ought to say that obviously you are asking me questions about somebody else’s analysis, and I cannot comment on how they arrived at that analysis. I can see how it is possible that the tightening up of the diminished responsibility rules might affect conviction rates, because the existing situation is less clear than it is under these clauses. So, possibly yes, that might tighten it up.
Peter Lodder: I cannot see how, on proper analysis, a mercy killing could come within diminished responsibility. In the ordinary course of events, a mercy killing is a reasoned decision, based on wholly different criteria: the individual concerned is acting in pursuance of a request, or on their assessment of the quality of life of the person whom they have decided to kill, albeit mercifully. I do not quite see how they could then rely on diminished responsibility, but in any event I do not think that someone acting in those circumstances could be said, even under present law, to be acting under an abnormality of mind. One of the virtues of these clauses is that they move away from a phrase that has no medical basis; abnormality of mind is not a medical term. I am not sure that I can help you much further.
Q 285David Howarth: One often sees—
The Chairman: Mr. Howarth, it is difficult to hear you; please try to address the microphone.
Q 286David Howarth: Mercy killers are often found guilty of manslaughter rather than murder. One cannot see how provocation can presently apply, so if one cannot see how diminished responsibility would strictly apply, and it is difficult to see how a mercy killing could be involuntary manslaughter, what is going on there?
Peter Lodder: It is the inalienable right of a jury to make that decision, and that decision is not subject to any subsequent analysis.
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