Clause
41Partial
defence to murder: loss of
control
David
Howarth: I beg to move amendment 168, in
clause 41, page 25, leave out lines 5 to
7.
The
Chairman: With this it will be convenient to discuss the
following: amendment 206, in clause 41, page 25, line 6, after
‘self-control’, insert ‘caused by gross
provocation’. Amendment
169, in clause 41, page 25, leave out
lines 11 and
12. Amendment
207, in
clause 41, page 25, line 17, leave
out
‘considered’. Amendment
170, in clause 41, page 25, leave out
lines 18 to
21. Amendment
2, in
clause 41, page 25, line 18, after
‘adduced’, insert
‘by the defendant, whether or not
deliberately or, if adduced by another, relied upon by the
defendant,’. Amendment
171, in
clause 41, page 25, line 22, leave
out ‘(5)’ and insert
‘(1)’. Government
amendment
266. Clause
stand
part. Amendment
3, in
clause 42, page 25, line 35, at
end insert ‘(provided
that D’s fear of serious violence must have been aroused within
a period that was in all the circumstances reasonably proximate to the
killing of
V)’. Amendment
450, in
clause 42, page 25, line 39, leave
out paragraph
(b). Amendment
173, in
clause 42, page 25, line 39, leave
out ‘a’ and insert ‘an
objectively’. Amendment
416, in
clause 42, page 25, line 39, leave
out
‘seriously’. Amendment
4, in
clause 42, page 25, line 39, at
end insert ‘, and (c) was done or
said within a period that was in all the circumstances reasonably
proximate to the killing of
V’. Amendment
5, in
clause 42, page 25, line 41, at
end insert ‘so long as
they occurred within a period that was in all the circumstances
reasonably proximate to the killing of
V’. Amendment
6, in
clause 42, page 25, line 42, leave
out subsection
(6). Amendment
417, in
clause 42, page 26, line 2, leave
out ‘or
said’. Amendment
418, in
clause 42, page 26, line 4, leave
out
‘seriously’. Amendment
419, in
clause 42, page 26, line 4, leave
out ‘or
said’. Amendment
174, in
clause 42, page 26, line 5, leave
out ‘justified’ and insert
‘justifiable’. Amendment
420, in
clause 42, page 26, line 5, leave
out ‘or
said’. Amendment
176, in
clause 42, page 26, line 7, leave
out paragraph (c) and
insert— ‘(6A) Violation of a
code of honour or sexual infidelity are not to be regarded without more
as circumstances of an extremely grave character for the purposes of
subsection 4(a) above.’.
Amendment 7,
in
clause 42, page 26, line 7, leave
out paragraph
(c). Amendment
175, in
clause 42, page 26, line 7, leave
out ‘or
said’. Amendment
111, in
clause 42, page 26, line 8, after
‘disregarded’, insert
‘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.’. Clause
42 stand
part. Clause
43 stand
part.
David
Howarth: We now come to the second part of the defence
proposed by the Bill. This time the defence is that of loss of control,
which is proposed to replace the existing defence of provocation. My
remarks about the relationship between the law of murder and the
partial defences apply equally in this regard, and I do not want to go
through those arguments again. However, the general structure of the
idea is that if one were to reform the law of murder in a more accurate
way so that the mandatory life sentence applied to a specific type of
case, at that point it would become entirely justifiable to start to
narrow the defences that allow a charge of murder to be reduced to one
of manslaughter.
[Stephen
Hesford in the
Chair] In
this particular case, there is an extra complication, which is that the
defence of provocation is somewhat dubious in the first place. Most
people would get the underlying moral idea of diminished responsibility
immediately—that someone was not entirely responsible for their
own actions and, therefore, should not be treated in the same way as
someone who was fully morally responsible for their actions. That seems
to be a clear moral principle, although often difficult to apply in
individual
cases. Provocation
does not have the same clarity, at least for me, because its starting
point seems to be a defence that blames the victim. The idea of
provocation is, “He made me do it”—something that
the victim did provoked the defendant to carry out the homicide. I do
not find the moral base for that as clear as for diminished
responsibility. My instinct, always, is that diminished responsibility
should be broader and that provocation should perhaps be narrower. The
Government are in danger of broadening the whole idea of provocation,
making it a much broader defence, for a reason of which I am not
entirely
sure. One
of the things that the clause does is to remove the idea that the
action that somehow caused the defendant to carry out the killing was
something to do with the victim. If one talks about loss of control in
the context of a justifiable wrong, which is what the clause does, but
forgets about who did that justifiable wrong, the provocation has been
turned into the kind of defence in which being angry with the world is
an excuse to kill someone. I cannot see, morally, how that is the case.
As I said, I would prefer the defence of provocation to be as narrow as
possible. There
are hard cases, such as that important set about battered wives, which
the law struggled to bring within the categories of the provocation
defence. It always
seemed to me that the way to deal with the problem was to broaden
diminished responsibility and not to try and jam those cases into
provocation. Maria
Eagle: Was the hon. Gentleman not arguing for the
narrowing of diminished responsibility in our previous
debate?
David
Howarth: If we stay within the context of unreformed
murder, my position is to broaden diminished responsibility. But if we
reform murder, we can talk about narrowing all the defences, because
they are all about the relationship between murder one and murder
two—between murder and manslaughter. If we stay with what the
Government want, which is to leave murder unreformed, the way to deal
with the battered wives cases is to broaden diminished responsibility
and not to jam such cases into the provocation
defence. What
the Government propose in the clause is a “loss of
control” defence. My starting point is that I cannot really
understand why that should, in itself, be a defence. Murders, to me as
a non-expert in criminal law, largely involve people losing control.
Part of why violent offences are wrong is that people did not control
themselves in a situation in which they plainly should have done.
Rather than introduce the strange notion of loss of control, I much
prefer to deal with the ideas in the clause as part of the reform of
the law of murder itself. It is even more strange when the clause
refers to loss of control not being sudden. I do not understand what
that
means. Loss
of control has to happen at some point. There might be a long build-up
to the loss of control, but it seems inherently to be an event not a
process. A process leads up to it happening. It then happens, but it
still happened at a particular time. That part of the clause seems to
be the result of confusion about the very idea of loss of control. If
we are dealing with battered wives cases as part of the defence, we are
still left with the problems under the previous law.
[Interruption.]
The
Chairman: Order. The hon. Gentleman is
speaking.
David
Howarth: It would still be a requirement in battered wives
cases to prove loss of control by the defendant. Throughout the debate,
the Government have been avoiding that part of the clause to give the
impression that another provision does not depend on the loss of
control. The whole clause depends on loss of control and that cannot be
avoided. The
clause has a further general problem. It is simply confusing. For
example, in evidence to the Committee, there was an issue about whether
the clause covers the situation in which excessive force was used in
self-defence. Some people have written to say that one problem of the
clause is that excessive force in self-defence will no longer be
treated as providing a partial defence unless loss of control can be
proved. That narrows the scope of defence for defendants when they have
gone too far in defending themselves. Justice took that
position. However,
in contrast, Liberty made the opposite argument about precisely the
same part of the clause. It said that the clause clarifies the case
when a person overreacts to what they perceive to be an imminent
threat, and that the clause could impact differently on such cases. The
Government might not like to hear it,
but Liberty said that in cases in which juries are unwilling to convict
people who kill burglars—a controversial matter that we
discussed while debating another Bill—a conviction would be more
likely, which I doubt that the Government would want to see. There are
two different readings of precisely the same problem and what the
clause says about it. If the clause is that confused, perhaps the
Government should think
again. [Frank
Cook in the
Chair] Amendment
168 would remove the loss of control element from the clause. It is bad
in principle, makes no sense and will cause injustice. Amendment 169
would remove the suddenness provision. That makes no sense and—I
suspect—no difference.
Amendments
170 and 171 are more technical. They arise from the evidence that was
given to us, about the problem with the current drafting of the clause.
Complications could occur in a case in which the defendant has both a
self-defence and a provocation argument. It seems that under the clause
as drafted, the defendant would get into trouble and be unable to run
both those defences because there would be a presumption that the
provocation defence was in play, which would undermine the self-defence
argument. Therefore, it was suggested to us that we should redraft the
clause to ensure that that would not happen. Although the proposed
solution might not be perfect, there is a problem in the clause, which
we have been invited by those who gave evidence to us to
correct.
11.45
am Amendment
173 would insert the word “objectively” into the leg of
the defence that talks about the feeling that there had been a
justifiable wrong. The amendment allows the Government to clarify what
they think the situation is in that part of the defence. The question
is: who would decide whether a feeling of being wronged was
justifiable? Would it be a subjective feeling—simply what is
felt by the defendant—or would it be judged objectively by the
court, either by the judge or ultimately by the jury? That is
especially important in cases of honour killings. My concern throughout
the debate on the clause has been that there is a
possibility—undoubtedly by inadvertence—that honour
killings would be treated more leniently under the clause than they
would have been under previous laws. As I think is agreed on all sides,
that is the opposite to what anyone in the Committee intends. Inserting
the word “objectively” in the clause would clarify that
question. I am usually no great fan of inserting the word
“objective”, because it has many different meanings, so
if the Government come up with a better solution, I will be more than
happy. None the less it is an issue: when offences are drafted, it
needs to be made clear who decides what, what the defendant personally
thinks, and what the jury and the judge do.
Amendment 174
would clear up an anomaly—again, it is a small technical point.
In clause 42(4), the word “justifiable” is used, yet when
we reach subsection (6)(b), the word “justified” is used
instead. The two words are not the same thing; something capable of
being justified is different from the act of being justified. I would
like the Government to make up their mind which of the two they
want.
Amendments
175 and 176 relate to the controversial issue of sexual infidelity in
the law of provocation and loss of control. There has been some
disquiet in the
legal community about why one particular form of provocation or loss of
control had been picked out, when there are other forms that one might
equally insert in the primary legislation to state that they should not
form the base of a defence. There are two ways of dealing with the
problem. The first is to remove any specific circumstances from the
face of the Bill, and the other is to think about other cases where we
might want to say to the courts, “Do not regard this particular
set of circumstances as one in which that defence could be run.”
In line with my general feeling that the defence should be narrower, we
have chosen the latter route, rather than the former, although the hon.
and learned Member for Harborough appears to have chosen the former.
Nevertheless, there is a problem and we have suggested that honour
killings be included on the list of types of case where that defence
should not be allowed. We have also
taken into account representations to the Committee that
“circumstances being disregarded”—the wording of
the existing clause—leads to some difficulty. It might mean that
where the context for some other form of provocation needed to be
explained, it might become impossible to explain that to the court. We
have suggested a drafting change, which would link that particular
problem to what counts under the clause as circumstances of an
“extremely grave character”. Saying that certain
circumstances cannot count as those of an “extremely grave
character” would be a more effective way of doing what we want
to do.
Finally,
there is the puzzle about things said constituting sexual infidelity. I
am far from clear what the intention of the proposals is. I suppose
that if one read the New Testament in a particular
way—especially in the same way as President Jimmy Carter
notoriously did—things thought can count as sexual infidelity,
as well as things said. However, I cannot see how that works for those
of us who operate in a common-sense world, where sexual infidelity is
something that someone does, rather than something they say or think.
The case that has been put to us is an important one. It is that often
in such cases the defendant claims that his—it is usually that
way around—partner “taunted” him and that somehow
she committed sexually infidelity with words. However, that is not so.
The words do not constitute the sexual infidelity, the words—the
taunting—are an act. We need to work out how to draft the clause
in a way that captures what we want to capture and does not make no
sense at all.
The
underlying problem is that one has to be very careful with that
defence. Historically, it has been a blame-the-victim defence and I do
not want to see it become too broad.
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