Q
312David
Howarth: May I turn to the point with which I do not agree
at all? In your frequently asked questions, you ask whether the defence
will allow honour killings. You say that honour killings are the
paradigm of revenge killings, and you just referred to the no-revenge
provision, but I do not see honour killings necessarily as revenge.
They are a violation of an honour code, and it is that that matters,
rather than revenge against an
individual. Sandra
McNeill: I do not agree at all. I think that honour
killings under their common definition as something done by families
from minority ethnic communities, are very much the same as honour
killings by men who think that they have lost control of their wives.
So, loss of control of property, whether it is your daughter or your
wife, is the key thing. For example, if you have forced the woman to
marry a man she does not want to marry and she has left him, is living
with another man, living her own life and not doing what the family
wanted her to do, that killing is taking revenge because she has gone
out of your control. Part of the reason why we think we need to retain
exclusion of infidelity in the Bill, is that keeping the clause on
revenge and excluding infidelity will cover honour killings; together
those two things will prevent the defence being
run.
Q
313David
Howarth: I have difficulty with that sense of the word
revenge. Revenge for me is vendetta: if you kill someone in my family,
I will kill someone in yours.
What you are talking about is not revenge but simply anger—being
furious at someone because they have violated some norm that you find
very important. I cannot see how that is revenge.
Harriet
Wistrich: The other point on honour killing, and this
relates to a question that I may have been discussing with other
witnesses, is about what a justifiable sense of being wronged is.
Perhaps this is part of the problem with the wording of the law. Is it
ever justifiable to kill somebody who dishonours your family by going
off with somebody from another religion, or for whatever reason? I
guess that there would have to be fairly clear guidelines on what was
justifiable, but I would hope that honour killings were never
considered a justifiable reaction to being wronged. They may be more
normal in certain cultures than others, but this Bill is quite
normative; it is about what we accept as right and wrong and what we
think are acceptable ways of behaving in a modern society. Whereas 50
years ago, or 300 years ago, the appropriate response to somebody being
unfaithful might have been to kill them, it is very helpful that the
Bill says that it will never be justified to kill somebody because they
are unfaithful to you—that that is not
acceptable.
Q
314David
Howarth: But is not the problem that that clause goes in
because of the problem with the word justifiable in the first place,
which still allows honour killings possibly to get through? Justifiable
to whom? To the defendant? The defendant obviously thinks that it is
justifiable; otherwise, they would not give the reason they do for the
killing. So it comes down to being justifiable objectively in the mind
of the jury. It seems that this point will get to the jury, and that it
will then possibly get through the
jury. Sandra
McNeill: If hon. Members want to make absolutely sure
that honour killings are excluded, add a clause to the clause that
excludes infidelity, and exclude honour killings as well. We would be
very happy with
that.
David
Howarth: I am glad that you think that. Turning to the
infidelity point for a second—I know that other Members want to
ask about this—how often do pure infidelity provocation defences
work these days? We know that they worked in the past, but time has
moved on. Lord Phillips said famously that infidelity was a good
excuse. That is no longer the case; sentences have got longer. Often
when these defences are run, they are run in conjunction with other
defences. You cite the Dalton case in paragraph 17 of your paper. Do
you have a transcript of the judgment or the instruction to the jury in
that case? There were two entirely different accounts of it in the
media. One said that there was provocation by reason of infidelity and
the other said that it was involuntary manslaughter and that the
specific intent for murder was not established. I shall be grateful if
you will write to the Committee with further information on that
case.
Q
315Mr.
Garnier: The exchange between you and Mr. David
Howarth about honour killing has intrigued me. Do you agree that
whatever the merits or demerits of clause 42(6)(c) in relation to
sexual infidelity, it has nothing whatever to do with honour killings?
Do you also agree that someone charged with an honour killing will not
be protected from a finding of guilt of murder, assuming that the
evidence is there, under these clauses?
Although the
test in clause 42(4)(b) is subjective, it must be assessed objectively.
It is therefore unlikely that any jury will think that people who kill
women for marrying someone they disapprove of
“have a
justifiable sense of being seriously
wronged.” In
addition, in clause
41(1)(c) “a
person of D’s sex and age, with a normal degree of tolerance and
self-restraint and in the circumstances of
D” surely
would not have reacted in the same or any similar way to D if we are
talking about rational juries. In our society, we do not permit the
killing of people because they have married someone we do not approve
of. That may be approved of in other jurisdictions, but under English
law honour killing will not be protected or turned into manslaughter
even with the provisions in clauses 41 and
42. Sandra
McNeill: I would like to cite the case of Tasleem
Begum in Bradford. Her killer was her arranged husband’s brother
and also her cousin. She had left the arranged marriage and had not
brought her husband over from Pakistan. She had started an affair with
another man and was living independently. Her husband’s brother
ran over her repeatedly in a car in public. Ultimately, his defence was
that by starting the affair with the other man she had offended his
code of honour and that it was an honour killing. The case never went
before a jury because the judge and the prosecution accepted his
account. He got five years for provocation. There was an outcry,
although the imams of Bradford said that it was legal under sharia law.
I would have hoped that the outcry surrounding that case meant that it
would never happen again, but it
has.
Mr.
Garnier: That is interesting, but I do not know how
helpful it is because we do not know the reasons that the judge
accepted from the prosecution for withdrawing the case from the jury,
if that is what happened. Perhaps I should leave it there because we
could enter into a rather infertile
argument.
Q
316Jeremy
Wright: I invite you to look at clause
42(4)(a), which is linked to paragraph (b) that has been referred to. I
do not want to go back over what is justifiable and to whom. Do you
believe that any properly directed jury would come to the conclusion
that a woman marrying the wrong person or engaging in an affair with
someone that the family disapproves of constitutes
“circumstances
of an extremely grave
character”? Sandra
McNeill: I would not presume to know what a jury
would do. In my experience, juries can do
anything.
Q
317Jeremy
Wright: My point is that unless the jury were to come to
that conclusion, it would not matter whether the defendant thought that
their actions were justifiable or not.
Harriet
Wistrich: I think that is right. It will take a lot
of twisting and persuading to convince a jury of 12 people
that marrying the wrong person
constitutes “circumstances
of an extremely grave
character”.
Q
318Jeremy
Wright: Perhaps we do not need to be as worried as we seem
to be about the possibility of honour killings being allowed through by
this clause.
Harriet
Wistrich: I do not think that they will. It would be
very hard to get a classic honour killing through this clause. Perhaps
there would be nothing wrong, as we have an exclusion on infidelity, in
adding an exclusion on honour killing, given the concerns about those
terrible crimes, which still go
on.
Q
319Maria
Eagle: Given your experience over the years in dealing
with murders that have resulted from fear-based reactions—often
gender specific, as it happens, in respect of your own work—do
you believe that the change being proposed in the Bill to introduce
fear of serious violence as an element that can give rise to protection
from this partial defence is
helpful? Harriet
Wistrich: I think it is extremely helpful. It is very
important because in a number of cases involving women that I have
worked with—I do not think that such cases necessarily
exclusively involve women because there are men who have been
systematic victims of abuse, but mostly we work with women—where
it has almost been self defence, the women have acted after being
threatened with violence. I have cited in the paper two cases
—Joanne Cole and Kirsty Scamp—which I think are perfect
illustrations of why it would be an important advance to introduce fear
of serious violence. These defendants are often stuck in a very
difficult place. They say that they feared for their life, that they
were being attacked at the time, and that they want to run
self-defence. In
the case of Kirsty Scamp—a 19-year-old who was recently
convicted of murder—the prosecution said that they would accept
a plea of manslaughter on the basis that she acted in excessive
self-defence. She said no, it was self-defence. When the defendant goes
for complete acquittal for murder, juries are not keen to return
self-defence unless they are absolutely convinced that that was the
case. Often where there is an inequality—where one person is
physically a lot weaker, for example—the person may have used a
weapon when they were not being threatened with a weapon. There is an
issue of disproportionality. They may have waited a moment; they may
not have struck in the course of the exact struggle. There may be
reasons why self-defence is not met. They then fall in the hole between
acquittal and a life sentence because they do not necessarily fit
provocation or diminished, which are the only other
options. I
think that fear of serious violence would be precisely where a jury is
just not sure that it was pure self-defence, but concedes that the
person was terrified and might have overreacted. There are often cases
in which somebody has historically been a victim of abuse—they
may have developed post-traumatic stress disorder or similar traumatic
symptoms, for example. Their startle response to a particular act may
be slightly exaggerated. Something may happen that triggers a bigger
response than perhaps a person who had not been through that experience
would have. If they have so many experiences of being beaten up in a
particular way and then something happens that is the last thing that
triggers their response—it may be an over-response; it may be
what we call excessive self-defence—and yet the response does
not fit the provocation, as we have it now, those women are convicted
of murder. That seems to me, and certainly our campaign, to be a
miscarriage of justice for somebody who has responded in that way. So
yes, we are very much in support of the
measure.
Q
320Maria
Eagle: You have made clear your views on the exclusion in
the Bill of the use of sexual infidelity in respect of this defence.
One of the other suggestions is that the phrase “gross
provocation” ought to be used to highlight the very high level
of the remaining loss of self-control. I will come on to one further
question about that in a moment. What would your view be on the use of
a phrase such as “gross provocation” in the law, instead
of the replacements we have here?
Harriet
Wistrich: It is a qualifying word—I do not
know whether it helps very much because what is provocation and what
makes it gross? It is not very precise, which is part of the problem.
From our concerns about the provocation defence being used, let us
forget infidelity—the other kind of classic cases where we have
seen what we would regard as injustices could be, for example, where
somebody has said they were nagged. Is it gross provocation where the
judge says, “This woman would have tried the patience of a
saint”? Is that a justification to kill? Whether you use
“gross provocation” or the wording here, it is to try and
exclude the sort of cases which are not justifications for
killing.
Q
321Maria
Eagle: I have one further question. You have expressed
concern this afternoon, and in your written evidence, about any
retention of the “loss of self-control” element. I wonder
if I might put a scenario to you which is not a real case, just to see
what your reaction might be. It is a reason why “loss of
self-control” ought still to be there in some
form. Somebody
whose family has been murdered in a genocide is walking in the street
and—such things have happened—comes across one of the
perpetrators of that massacre. They remonstrate with them, are taunted
or laughed at, and then lose their self-control in a classic sudden
way. They kill that person. Would you have sympathy—no, not
sympathy—but would you see the point of the retention of loss of
self-control as a concept, on the grounds that the circumstances would
have pushed this person beyond any reasonable level of restraint that
most of us might expect people to exercise in a civilised
society?
Harriet
Wistrich: It is not precisely this experience which
we work with. The point—in so far as it is analogous with cases
that we have worked around—is what is the kind of underlying
history that affects the psychology of the person who kills? If you
have lost your family in a genocide you may have a deep, traumatised
psychological make-up. It may all be there under the surface, but it is
a bit difficult to
extrapolate— Sandra
McNeill: That is not her area of expertise. If
possible within the time, I would welcome the opportunity to quickly
address the suggestion by the previous row of witnesses, that sexual
infidelity, with something else like “taunting” should be
allowed. May I address you briefly on that?
The
Chairman: Let me ask the members of the Committee if there
is any burning question that they have not asked. I hope to give you
exactly that opportunity in a moment.
Q
322Mr.
Garnier: It seems to me from Ms Wistrich’s last
answer, that your general complaint is that you wish the Government had
complied with the Law Commission and gone down the murder one and
murder two route.
Harriet
Wistrich: No.
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