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Memorandum from Professor Jeremy Horder, Law
Commissioner for
Partial defences to murder; assisting suicide.
(1) LOSS OF SELF-CONTROL (CLAUSES 41-43).
In general, the Law Commission is very pleased to see that its recommendations (based on very wide consultation) in 2004 & 2006 are to form the basis for some of the reforms in clauses 41-45.
(i) It is important to keep in mind, during the course of scrutiny of clauses 41-43, that the 'fear of serious violence' limb of the loss of self control defence will not only apply in domestic violence situations. It will apply equally, for example, to public house brawls, and perhaps more significantly to cases in which lethal force has been used by an armed soldier or police officer.
The Law Commission consulted the Police Federation about the implications of this change. It will be important to ensure that an armed officer charged with murder, respecting a killing in the course of his or her duties, can claim an outright acquittal on the grounds of self-defence, without the water being muddied by this 'middle course' manslaughter verdict (unless it is the officer's wish to run his or her defence in that manner). The difficulty in the way is the decision of the House of Lords in Coutts (2006 UKHL 39), which gave a great deal of latitude to the trial judge to suggest to the jury that they might like to consider a 'middle course' verdict, even when that is wanted by neither prosecution nor defence. This decision came too late on for the Law Commission to do much other than note it. For a possible solution, see (iii) below.
Clause 41(5) exacerbates the problem, if such it be. It effectively says that whenever D pleads outright self-defence in a murder case, given that this will always involve adducing evidence of a fear of serious violence, the jury in such a case must assume that the partial defence is made out unless the prosecution proves otherwise. But, if D is claiming outright self-defence, why would the prosecution bother with discharging that burden, at least in some important cases? They can to an extent sit back and await a manslaughter conviction, because the jury is effectively being told to bring in a manslaughter verdict in such circumstances, unless - obviously - the prosecution's case is that D was not acting out of fear at all, and so should gain neither a full acquittal nor a partial defence.
(ii) In relation to the other limb of the loss of self-control defence, I welcome the change of wording from 'exceptional happening' to 'circumstances of an extremely grave character'. This reinstates but, dare I say it, with a more elegant turn of phrase, the Law Commission's recommendation that the term 'gross provocation' be used. More importantly, the new wording will more effectively cover the kind of 'cumulative' effect of domestic violence that, sadly and paradoxically, means that provocation is not an 'exceptional happening' in a household.
(iii) It is perfectly possible that a defendant (whether victim of domestic violence or armed officer) will wish to plead the 'fear of serious violence' limb of the loss of self-control defence, but not the 'grave provocation' (for short) limb. Clause 41(5) makes this difficult. My point here is closely allied to the one made above in (i) about the person wishing to plead for an outright acquittal on the grounds of self-defence, although there are new difficulties.
First, what is meant to be evidence of a fear of serious violence may in fact seem to the judge and jury to be as good or better evidence of 'circumstances of an extremely grave character...[causing] D to have a justifiable sense of being seriously wronged'. So, given that 41(5) requires the jury to assume the defence is made out when the relevant evidence has been adduced, D loses a grip over the exact character of the defence being run in such circumstances. In such a case, D has no choice but effectively to run the 42(4) limb of the defence. Perhaps that is not too much of a concern.
However, equally troubling is a broader problem with the notion of 'sufficient evidence adduced' in 41(5). Such evidence may appear during the prosecution's outlining of its case that D did not act in self-defence ('D just completely lost all sense of control and reason, and was not influenced by the degree of threat posed by V'), in the middle of the trial, or even only once all the evidence has been heard and the judge comes to look at the effect of it overall.
It is widely recognised that when the judge raises what is currently the provocation defence at a late stage or when the defence have not themselves raised it (which the judge may under the current law have no choice but to do), the jury may give the evidence for it undue weight, precisely because it is the judge who has raised it. A judge is under a duty to raise an insanity defence, if there is evidence of that, because of the overwhelming public interest that this should happen. But defences like self-defence and loss of self-control/provocation should be for the defence to raise.
Although it goes to some extent against the grain, I cannot help thinking that it would be better, in point of clarity and justice, if 41(5) 'cut in' only when the evidence in question is raised (whether or not deliberately) by the defence, and only by the defence. Otherwise there will continue to be jury confusion over why they should consider 'defence' issues not raised by the person making his or her defence.
(iv) It will be important to remember that, perfectly justifiable though it may be in one way, removing the (supposed) requirement that a loss of self-control be 'sudden' will open the defence to people who brood over real or imagined slights before flying off the handle simply when, for example, they see the person again at a much later point: perhaps days later.
The removal of the requirement will undoubtedly raise questions, not answered in the Bill, about the status of what appear to be 'forearming' actions by D. There is a case for saying that forearming, other than exceptionally for self-defence, should disqualify someone from pleading loss of self-control. If that is not done, the jury will be left to consider only whether the forearming actually showed that D did not genuinely lose self-control, for the purposes of 41(1)(a); but that will not bar all troubling cases. Having said that, perhaps 41(1)(c) can be relied on the filter out unworthy cases.
(v) Many people have been concerned about the uncompromising nature of 42(6)(c). I will not debate at length the question whether evidence of infidelity should ever be the basis for a successful plea of provocation. However, 42(6)(c) is a sub-clause fraught with difficulty.
One of the difficulties about being 'absolutist' in this area is that one prevents the jury hearing rare meritorious cases. Consider this one:
D loses self-control and kills V when V (D's husband) admits having had long-standing affairs with (and made pregnant) each of D's three 16-18 year old daughters by a previous marriage. Under clause 42(6)(c) the jury should disregard the element of sexual infidelity. Is that fair?
There are further questions. May the jury take into account the girls' pregnancies that are the result of the infidelity, in that these mean offspring born are related to D? Further, suppose V started an affair with one of the daughters before meeting/marrying D. Would D be able to rely on evidence of that affair, given that there was no obligation of fidelity to D at that stage? How far into the question whether the affair started before V met D should the court be prepared to go?
In relation to the fear of 'serious' violence limb of this defence, the Government has said (para 28 of 'Murder, Manslaughter and Infanticide: proposals for reform of the law' CP(R) 19/08):
'we believe that the concept of serious violence is one that juries will be able to judge on the individual facts of a case and decide whether the violence feared was serious or not'.
It is hard to see why the logic of this does not apply to cases falling under 42(4). Can the jury not be left to filter out unmeritorious cases by deciding for itself in a loss of self-control case simply whether 42(4), and 41(1)(c), are satisfied?
Even if 42(6)(c) is left in, on the face of it, the wording is, with respect, bizarre. In what circumstances can a thing 'said' in itself 'constitute' sexual infidelity, and is that really what is being aimed at? For example, I suppose that being caught saying 'I love you' to someone else is indeed something 'said' that 'constituted sexual infidelity', although it is a stretch of meaning. But of course, a confession of adultery (the classic case) is not in itself a thing 'said' that in itself 'constitutes' sexual infidelity.
So, apparently, under 42(6)(c) the jury must disregard the actual adultery (if any) but may take into account the confession of adultery, because that falls outside the wording 'thing...said [that] constituted sexual infidelity'. To put it mildly, I simply don't see what policy objective is achieved by driving such distinctions.
I am sure that I will not be the only person to remark that the focus on sexual 'infidelity' is curious; even, paradoxically, old-fashioned. Does it cover unmarried relationships where there is no duty, in law, of fidelity? More seriously, is what is really being got at here sexual jealousy and envy, not 'infidelity'? If so, why not say so?
For example, under clause 42(6)(c) as it stands, a cuckolded D cannot plead loss of self-control even when adultery has been as bad as in the case mentioned above (the daughters' case). By way of contrast, if D was stalking V, with whom he was obsessed but had never had a relationship, and killed her simply when he saw her with a man, 42(6)(c) is no bar to pleading loss of self-control because there has obviously been no 'infidelity'.
The contrast in results here, showing the arbitrary limits of 42(6)(c), is explained by the fact that whereas the wife who killed her adulterous husband may have been motivated, in part, by sexual jealousy, the 'stalker' is motivated by sexual envy, and the Bill - perhaps unintentionally - distinguishes between these phenomena. By focusing on the quaint notion of sexual 'infidelity', the Bill focuses on sexual jealousy (basically, possessiveness about something you have: as in, 'our God is a jealous God'). It does this at the unjustified expense of sexual envy (basically, possessiveness about something you do not have: as in, 'do not covert thy neighbour's ass').
If this clause is to remain, it might be worth considering re-wording to say that in so far as D was motivated by sexual jealousy or envy, these motivations are to be disregarded.
Of course the jury should reject 'sexual envy' cases such as the stalker case on the merits; but then critics of the Bill will say that if we trust the jury we should trust it to reject all unmeritorious cases on the merits. We should not seek to engineer solutions by statute, in a way that will lead to yet more trips to the Court of Appeal and House of Lords to determine meanings, and a hence plethora of case law.
In short, is there is a case for just 'binning' 42(6)? That would leave the combined effect of 41(1)(c), 41(6) and 42(4) to do the work of weeding out the unworthy cases. I recognise that this would involve removing clauses 41(6)(a) and (b), which are based on Law Commission recommendations, but it should be kept in mind that the Law Commission was not asked to, and did not, draft a Bill.
(2) DIMINISHED RESPONSIBILITY (CLAUSES 39-40).
I do not have many comments here. The Law Commission is, once again, very pleased to see that these clauses so closely follow it own recommendations, on which it consulted widely in both 2004 and 2006.
I just note, without further comment, that the clauses are apt to cover at least some 'mercy' killing cases. These will be cases in which D's depressive illness has left him (and it almost always will be a 'him') with less that full rational judgement. The typical case will be one in which a man has become clinically depressed as a result of long term care for a wife/partner who has become increasingly ill, and may have been putting him under pressure to 'end her suffering'. This is one of the most common kinds of 'mercy' killing cases that end up in the courts, as the Commission pointed out in its Consultation Paper in 2005.
A problem in such cases can be the paucity of medical evidence that will be sufficient to satisfy the new section 2(1) requirement of a 'recognised medical condition'.
Historically, men have been less likely to admit to having and seek treatment for depressive illnesses. So, a diagnosis may sometimes have to be made on the basis of what D says to a psychiatrist after the killing about his mental health over the last few years: a potentially problematic situation in terms of the cogency and reliability of that evidence. As against that, increasingly, it might be argued, an admission of depression is losing its stigma. Even so, most 'mercy' killers are older men in what were long-term relationships, who may be more reluctant to admit to problems with their mental health. I don't think that there is an obvious solution to any of these points, but they seem worth making.
(3) ASSISTING OR ENCOURAGING SUICIDE (CLAUSES 46-48).
In general, the clauses follow the Law Commission's suggested language of 'assist and encourage', language employed in Part 2 of the Serious Crime Act 2007, as opposed to the archaic 'aid, abet, counsel or procure'. However, I have a quibble over a place in which that language is not followed.
This concerns the language of 'arranging' in clause 46(4). What that clause says is that if D 'arranges' for D2 to do act capable of assisting or encouraging (attempted) suicide, then D is to regarded as having done the act him or herself.
The choice of language is odd, because it leaves out of account the case where D encourages D2 to do an act capable of assisting or encouraging (attempted) suicide. Surely, if 'arranging' for D2 to help/encourage a suicide should be regarded as itself helping/encouraging suicide, then so should encouraging suicide? Contrast these two cases:
(a) D writes instructions on how to commit suicide, for D2 to pass on to V. (b) D encourages D2 to write instructions on how to commit suicide, to pass on to V.
I can see how (a) involves 'arranging' for D to do an act capable of assisting/encouraging suicide. but it is less obvious that (b) involves such 'arrangement' since encouragement is simply not a kind of 'arrangement'.
Why not simply use the same language of assisting and encouraging? In other words, say that if D assists or encourages D2 to do an act capable etc, then D is regarded as having done that act. That would follow the approach to this same issue in the Serious Crime Act 2007 part 2, where the issue is whether D has assisted or encouraged an act by D2 that is capable of assisting or encouraging a crime.
January 2009 |