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Lord Thomas of Gresford: I hope that I can illustrate the problem that the amendments are intended to address with the case of Luc Thiet Thuan, which was decided in the Privy Council some years ago. In that case, a young man in Hong Kong had suffered as a child an injury that caused him brain damage, lowering his ability to control himself under pressure. In an episode with a young lady, she made disparaging remarks about his person, whereupon he took a knife and killed her. At the trial in Hong Kong, there was medical evidence to the effect that he was brain damaged, with the results that I have conveyed to Members of the Committee.

Accordingly, the argument in that case was that, when it came to the defence of provocation, Luc Thiet Thuan should be compared with a reasonable person of his age and sharing his characteristics, including the fact that he had brain damage. In other words, the reasonable person with whom he was to be compared was virtually the same man. I argued the case on behalf of the appellant. In the Privy Council, their Lordships divided by four to one against me, the one for me being the noble and learned Lord, Lord Steyn.

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When the same principle came before the Court of Appeal in England some time later, that court decided not to follow the majority decision from the Privy Council. Highly unusually, it decided to follow the judgment of the noble and learned Lord. Accordingly, that principle became embodied in the law. It went to the House of Lords, and their Lordships decided by three to two to follow his judgment. But each of the three majority decided to follow the judgment of the noble and learned Lord, Lord Steyn, on different grounds.

That is the kind of problem that can arise in relation to the concept of a "reasonable person". It so happens that I lost for the appellant in that case in the Privy Council. When I subsequently came before the courts of appeal in England, I lost again when I appeared for the prosecution because the principle was used against me, with my argument succeeding in those courts.

The purpose of inserting the words "sharing the characteristics of A" is to reduce the objectivity of the test proposed in Clause 1(3) so that the "reasonable person" becomes "A". The "reasonable person sharing the characteristics of A" becomes "A". He is of the same age and sex and, if one has brain damage, the other has brain damage. Therefore, the test ceases to be objective and becomes almost subjective.

7 p.m.

Lord Campbell of Alloway: I am obliged to the noble Lord. I agree with him. I said what the object of it was. My speech was concerned with the effect of it—that is, that it did not achieve the object.

Lord Thomas of Gresford: I am much obliged to the noble Lord for his clarification. My point is not that I am in support of or against the amendment; it is simply that the amendment illustrates the complete unworkability—to use that word again—of the way that the Government are approaching this problem. There is a far simpler solution over the page in the Marshalled List of amendments, but we shall not reach that point for a considerable time because we must go through Clause 78 first. This amendment seeks to try to make sense of the issue and to make Clause 1(3) accord with the current law on provocation in this country. As I said, it illustrates all the problems.

Viscount Bledisloe: It seems to me that if we must have an objective test, then, in theory, the amendment would improve the Bill. I also believe that the noble and learned Lord has already conceded that the amendment must succeed by the answers that he gave to the points raised by the noble Lord, Lord Carlile, during the previous debate. In relation to the examples given by the noble Lord, Lord Carlile, he said that obviously one had to consider the characteristics of the individual and judge him by the standards of a person in his condition. That would get us into a rather odd situation, because one of the two people whom the noble Lord, Lord Carlile, postulated was someone who periodically had attacks of a mental illness which made him act wholly unreasonably. Therefore, we shall now have a "reasonable person" who has the characteristic of

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periodically acting wholly unreasonably. That is perhaps a little difficult for a jury, and perhaps even your Lordships, to understand.

Although I believe that in theory the amendment would improve the situation, where on earth would it get us? Let us suppose that the defendant says, "Well, my characteristic is that I have only recently arrived in this country. I used to live in a country far away where, whenever ladies said 'no', they meant 'yes'. Therefore, that is my background and my characteristic". Will that be a defence, and how will it be dealt with? Will people be called from that country to prove that that is the habit of that country, and will the prosecution be rebutted?

Once one gets down to individual characteristics, the trials will go on indefinitely. Is that really what the Government want and, although the logic would be improved, does it not demonstrate the fallacy of the whole approach? However, if we must have the whole approach, then I would prefer to have it with the amendment rather than without it.

Lord Lucas: I do not know what the noble and learned Lord, Lord Falconer, studied for his English O-level texts, but I read To Kill a Mockingbird. If one applied the Bill as it stands to the rape trial in To Kill a Mockingbird, then the man would be convicted because clearly no reasonable man—that is, a white man—would ever believe that a white woman would consent to sex with a black man. If we made the amendment that my noble friend suggests, then the defendant would be let off, as indeed he should be, because we would make the test relevant to him.

That is perhaps taking things to extremes but I believe that, to some extent, it illustrates the difficulties that I have with the Government's current drafting, in that one is trying to insert the character of the reasonable man, having assigned characteristics to him in respect of the relationship between the individuals in the case. One will be in great difficulties in deciding what those characteristics should be. I do not share my noble friend's view that they should necessarily be the characteristics of the defendant.

I believe that point has been dealt with extremely well by others who have spoken. But I believe that it all adds up to a considerable argument in favour of the phraseology employed by the noble Lord, Lord Thomas of Gresford, in Amendment No. 8, to which I very much look forward.

Lord Northbourne: I should declare an interest in the "reasonable man" in the context of Clause 80. As we shall probably not reach that point until after Easter, I thought that I should signal my concern. I am very unhappy indeed about the concept of a "reasonable man" in the context of Clause 80. While I suspect that many noble Lords are right to say that this amendment is not ideal, if we must have the concept of a "reasonable man", it would be slightly better with this amendment than without it.

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Lord Skelmersdale: I can understand the temptation to seize on the phrase "a reasonable person" in Clause 1(3)(a) and to seek to define such reasonableness in respect of that person. But I looked a little further along the line and discovered that we should be talking about "a reasonable person" in all the circumstances. That may or not be the Minister's response to this debate. But I believe that in the To Kill a Mockingbird case, or the case of a defendant who has learning difficulties or is a drug addict or whatever, those circumstances would have to be taken into account. I hope that that is what the noble and learned Lord will say.

Lord Falconer of Thoroton: Broadly, it is. Obviously when one is dealing with the standard of the reasonable person or, to use the suggestion of the noble Lord, Lord Thomas of Gresford, a person without a reasonably held belief—one must ask whether there is a difference between a reasonable person on the one hand and a reasonably held belief on the other—some standard must be set and plainly it must be set by the circumstances of the factual situation that the jury is addressing. We believe that it is possible to frame a legal test where the jury can be asked, "Do you think that the prosecution has proved that the defendant's belief was reasonably held?" That is broadly the position that we want to arrive at.

In some cases, the characteristics of the defendant will be relevant; for example, his or her age, or the kind of example given by the noble Lord, Lord Carlile, where a person is suffering from an identifiable mental impairment. But we do not need to go so far as to say that the jury must take into account all the characteristics of the defendant when considering what the reasonable person would have done in the situation.

In the case of Smith (Morgan), the noble and learned Lord, Lord Hoffmann, dealt with this very issue in relation to provocation. He was critical of the approach of directing the jury to attribute certain characteristics to the reasonable man. He said that approach had,

    "produced monsters like the reasonable obsessive, the reasonable depressive alcoholic and even the reasonable glue sniffer".

The noble and learned Lord, Lord Hoffmann, is of the view, and I share that view, that the judges and the jury are capable of identifying which characteristics are relevant and which are not. He said that judges should describe the objective element in the provocation defence in simple language. That is the approach that we would adopt.

I think that juries are perfectly capable of evaluating the evidence presented to them and of deciding the extent to which the personal characteristics of the defendant should contribute to their assessment of whether he acted reasonably once doubt about the consent of the other party had arisen.

We can debate for hours precisely how that is put in legal language. We think we have done it. We do not for one moment dissent from the approach taken by the noble Baroness in this respect. I do not believe she

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is suggesting that every single characteristic necessarily would be taken into account, even the fact that the defendant is unreasonable as suggested by the noble Viscount, Lord Bledisloe. What I think the noble Baroness is trying to get at is the fact that where appropriate one must have regard to the circumstances including, for example, age or mental dysfunction on the part of a defendant. We would agree with that. We believe that we have got there without getting to the absurd point identified by the noble Viscount, Lord Bledisloe.

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