Mr.
Garnier: Clause 41(2), to which the Minister referred,
states
that “it
does not matter whether or not the loss of control was
sudden.” Is
that not the obverse of my argument about proximity? There is confusion
in the Bill: if the loss of control does not have to be sudden,
presumably it does not have to be
proximate.
Maria
Eagle: No, the Bill does not state that it has to be
proximate. The essential point, which I have obviously failed to convey
to the Committee, is that the new partial defence will rule out
unmeritorious cases without casting the matter in terms of suddenness.
I have said that I shall consider the hon. and learned
Gentleman’s
comments. Mr.
Tim Boswell (Daventry) (Con): I have yet to make a
contribution, because I have no legal competence in such matters.
However, having listened to this discussion, it seems to me that, if
the suddenness test fails, or is removed, and if the proximity test is
also unavailable, or not explicit, it is difficult to see what test
will be applied. Will she lead me through that
one?
Maria
Eagle: I return to what I said at the beginning of my
remarks, which is that we are recasting the partial defence so that we
have a new one in which the defendant kills as a result of a loss of
self-control attributable to a fear of serious violence, words or
conduct that caused the defendant to have a justifiable sense of being
seriously wronged and constituted circumstances of an extremely grave
character; or a combination of those things. In that way, we put an
appropriate boundary around the partial defence without having to refer
to “proximity” or “suddenness”.
A sudden loss
of self control is the way in which the old provocation and partial
defence works. We are trying to get away from that and ensure that in
the new partial defence, the fear of serious violence, which we and the
Law Commission accept, is fairly dealt with.
We want to make the partial defence resort less appropriate for anger.
Therefore, we want to raise the bar in respect of anger
killings. In respect of
killings on the basis of fear, we want to allow the defence to work in
a way in which the wording of the old defence has not worked, although
practice in the courts has been changing with common law
developments. Given
the way in which the whole new partial defence is constructed, we do
not believe that we need specifically to refer to proximity and time.
However, I understand the concerns raised by both the hon. and learned
Gentleman and the hon. Member for Cambridge that we could be allowing
horrible revenge killings. I will consider whether we have got this
right in view of our debate. None the less, I hope that I have made
myself
clear. I
am sympathetic to the policy aim of amendment 173. To
determine whether things done or said caused the accused to have a
justifiable sense of being seriously wronged, there should be an
objective test, which answers the point raised by the hon. Member for
Cambridge. That is why the clause states that the defendant should
have “a
justifiable sense of being seriously
wronged.” The
word “justifiable” makes the test objective. It would be
subjective if it said, “He has a sense of being seriously
wronged.” The word “justifiable” makes the test
objective. We will hear at a later stage whether hon. Members accept
that. It
is perfectly possible, however, that the jury accepts that the
defendant had a sense of being seriously wronged, but when it applies
the objective test, it may decide that that sense of being seriously
wronged was not justifiable. That would cause the defence to fail at
that hurdle.
Let us move
swiftly on to amendments 416, 418 and
450
Jeremy
Wright: Will the Minister comment on amendment 174 in
light of what she has just said? There is a difference between
“justifiable” and “justified”. In clause
42(6)(b), the word is “justified”. Given what the
Minister has just said, should it not also say
“justifiable”?
Maria
Eagle: The hon. Gentleman is very sharp and is spoiling
the denouement to my speech. I will accept amendment 174. I happen to
agree with what the hon. Members for Rugby and Kenilworth and for
Cambridge have said, which is the end of my speech gone for a Burton.
[Interruption.] I am keeping control because I remember
what is at the end of my speech before I have got
there.
Mr.
Garnier: Has the Minister read the conclusion
before the
evidence?
Maria
Eagle: That is more usually the habit of the hon. and
learned Gentleman. None the less, the Government cannot support
amendments 416 and 418, which would make it possible for defendants to
raise the partial defence of provocation in circumstances in which
things said or done could give the defendant a justifiable sense of
being wronged as opposed to a justifiable sense
of being seriously wronged. Amendment 450 touches on the same point. The
amendments would lower the threshold for the limb of the defence, which
undermines the Government’s stated aim of narrowing the
circumstances in which the partial defence could rely on the basis of
things said or done. The Government are persuaded that the current
defence is too generous to those who kill in anger. The clauses have
been designed to address those concerns, and to raise, not lower, the
bar, which is why we cannot support the
amendments. 12.45
pm I
want to discuss the sexual infidelity limb in clause 42(6)
in more detail. I accept that where passions run high and where people
feel a strong sense of having been wronged in close, personal
relationships, it can be devastating for the individuals involved. But
we do not believe, as a Government in the current day and
age—whatever our personal views may be—that sexual
infidelity ought to be sufficient reason to reduce a murder charge to a
finding of manslaughter, when the resulting passion, concern and upset
has led to killing with an intention to kill or to do serious harm. We
are not trying to legislate away people’s natural and normal
upset, concern and anger about those circumstances, but we do not
accept that that itself ought to lead to reducing a murder
finding. The
history of the partial defence of provocation has led to a commonly
held belief that that defence can be abused by men who kill their wives
out of sexual jealousy and revenge over infidelity. That erodes the
confidence of the public in the fairness of the criminal justice
system. Even accepting that a great deal has been done in recent years
to address the problem and that pleas of provocation on the basis of
sexual infidelity do not succeed as much as they used to, it is still
true that under the current law that particular defence can be raised
and may succeed. We want to make it clear that it is unacceptable for a
defendant who has killed an unfaithful partner to seek to blame the
victim for what occurred. That deals in part with the general point
about the entire partial defence. Homicide requires a killing with an
intention to kill or to cause serious harm, and those who do that need
to face the consequences, unless they have a very good
reason.
Jeremy
Wright: If I am about to spoil another line when the
Minister tells us that she is not going to accept the amendment, I
apologise now. I agree absolutely with her comment that sexual
infidelity should not be sufficient to make out the defence that we are
discussing, but clause 42(6)(c) states that
“the fact that a
thing done or said constituted sexual infidelity is to be
disregarded.” Does
she see the problem, which some have highlighted, that if the court
were considering a case where the sexual infidelity in question
involved sexual abuse, incest or something of that kind, it would be
strange if the court were not able to consider the sexual infidelity
aspect as part of the facts? That is even though it would be accepted
that sexual infidelity in and of itself would not be sufficient to make
out the defence. Is there not a difficulty with the word
“disregarded” rather than, as she has said, using the
word “insufficient”?
Maria
Eagle: There is some misunderstanding about our intentions
in that respect. I am happy to look further at the wording—I am
not promising to do anything about it, if I conclude that it is about
as good as we can get—but if Committee members could suggest
formulations that are clearer and that achieve our objective, then I
would be more than happy to
listen.
Mr.
Garnier: The Minister does not have to listen; she just
has to read amendment 111 on page 336, which covers the exact point
made by my hon. Friend the Member for Rugby and
Kenilworth.
Maria
Eagle: I am coming to that. I just wanted briefly to deal
with the point about clause 42(6)(c), which talked about things done or
said constituting sexual fidelity, about which the hon. Member for
Cambridge was mystified earlier—members of the Committee are all
very young, except me, and did not seem to understand the point about
President Jimmy Carter; perhaps some of us have longer memories than
others. Using
the words “done or said” makes it clear that subsection
(6)(c) refers to clause 42(4)—the hon. Gentleman missed that. It
may be difficult to know how things said would in and of themselves
amount to sexual infidelity, but I understand the hon.
Gentleman’s point. It is important to carry over the language
used in clause 42(4) to ensure that anything that could be
argued to fit into that subsection should be disregarded, if it
constitutes sexual infidelity. Replicating the wording from
subsection (4) guards against creating a loophole, whereby
someone might seek to establish that clause 42(6)(c) was designed to
allow sexual infidelity to be relied upon as a qualifying trigger, when
it could be argued that something that was said constituted such
infidelity. We must consider whether we are making things less clear by
having consistency of language. We could just accept an amendment to
keep the language consistent, and I am perfectly happy to consider
whether we have got the matter
right. Amendment
111 seems to be directed at allowing sexual infidelity to be considered
when relevant, but only if it is not
“a thing or
things done or
said” that
is relied on as a qualifying trigger under clause 42(4) for
the loss of self-control. That subsection is the qualifying trigger
that arises when a person’s
“loss of
self-control was attributable to a thing or things done or
said...which” amounted
to “circumstances
of an extremely grave character,
and” caused
the
defendant “to
have a justifiable sense of being seriously
wronged.” I
am assuming that what I have just said about the purpose of the
amendment is right. We do not have a problem with the reasoning, but we
think that the current drafting covers the
point.
Mr.
Garnier: To be honest, I can see that hon. Members want
their lunch shortly, but the point that my hon. Friend the Member for
Rugby and Kenilworth made needs to be answered. I anticipate the Court
of Appeal being inventive and reading into clause 42(6)(c) the
substance of amendment 111 simply because the provision will otherwise
produce unjust results. A straightforward
example is a stepfather who rapes a stepdaughter, which would prevent
the partial defence being given to the wife in those circumstances. We
must be very careful before rushing down the path of paragraph
(c).
Maria
Eagle: I understand that concern. The amendment is
unnecessary, because the current drafting covers the sort of situation
to which the hon. Gentleman has referred, but I am happy to reflect
further on the matter. We believe that we are covering the same ground
with the current wording, so I will not undertake to accept the
amendment, but I will undertake to go away and consider
it. Amendment
176 refers to honour killings. Such cases involve individuals who seem
to have transgressed the dictates, perceived or real, of a religion or
community, or the mores of society or family by, for example, engaging
in a relationship that is not approved of or marrying someone whom they
should not marry according to their family. In response to the
transgression, they are killed for bringing dishonour to their family
or wider community. We all agree that such cases should not be allowed
to benefit from the partial defence, but the clause does enough to
exclude such cases.
First, the
fact that
“thing or things
done or said (or
both)”, which
triggered the loss of self-control must have
“constituted
circumstances of an extremely grave character,
and...caused...a justifiable sense of being seriously
wronged.” The
test is objective, not subjective. Secondly, the jury must be satisfied
of the reasonableness requirement in clause 41(1)(c) that
“a
person...with a normal degree of tolerance...might have
reacted in the same way or in similar
way” as
the defendant. Thirdly, the defence is not available if the defendant
acted in a considered desire for revenge. We believe that, when taken
together, those factors should always have the effect of preventing the
defence from succeeding in cases of honour
killings. There
is an issue about defining honour killings. It is much easier to define
sexual infidelity, say, than honour killings. Honour killing is not
easy to define. We do not believe that the phrase “violation of
a code of honour” is sufficiently precise. We think that the
current wording deals with the point, and we all agree that we do not
want to allow honour killings to sneak into the partial
defence. Amendment
417 is contrary to the Government’s aim of preventing people
from relying on the partial defence, if the qualifying trigger was
caused by something that the defendant incited another person to do or
say in order to give them a reason for using violence. We touched on
that earlier. We do not want it to be possible for the defendant to use
things said—for example, verbal threats—as the basis for
their fear of serious violence. That is to rule out things such as gang
killings. I hope that hon. Members understand
that. For
example, person X is a member of a gang who wants to attack person Y,
who is a member of another gang. Person X shouts verbal abuse at person
Y in the street with the intention of drawing him into an altercation.
When person Y responds with verbal threats of extreme violence, person
X attacks and kills him. We do not want person X to seek to rely on the
partial defence on
the basis that he feared serious violence from person Y, when he had
provoked it in the first place through the verbal threats with an
intention of creating the altercation. That is the point of the
provision. We
have dealt with the “done or said” point. I have accepted
amendment 174—hurrah. On that basis and with many apologies for
the length of time that I have taken to deal with these matters, I hope
that the hon. Member for Cambridge will consider withdrawing the
amendment, which is not the one that the Government have
accepted.
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