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The concept of measuring the conduct of the accused against the reaction of a hypothetical reasonable man caused great difficulty. Luc Thiet Thuan, a case in the Privy Council in 1997, in which I appeared for the appellant, was a case where the defendant suffered from organic brain damage at birth, which gave rise to epileptic attacks. The provocation from his former girlfriend was that she compared him unfavourably to her new boyfriend, and said that he was so quick that he was like a newspaper delivery boy. Certainly, he lost his self-control. The question was whether, in fairness, he should be compared to a hypothetical reasonable man, from whom all attributes except sex or age had been removed, or to a reasonable man suffering from brain damage. What was fair?

Their Lordships divided. The noble and learned Lord, Lord Steyn, delivering a powerful dissenting judgment, which was later followed in the English Court of Appeal and confirmed in the case of Smith (Morgan) in the House of Lords by a majority of three to two, found in favour of the comparison with a reasonable man suffering from brain damage-notwithstanding that the decision gave rise to what the noble and learned Lord, Lord Hoffman, described as "monsters", such as the reasonable obsessive, the reasonable depressive alcoholic and even the reasonable glue-sniffer. In deference to the decision of the House of Lords in Smith, the Judicial Studies Board issued specimen directions to the judges in respect of provocation, based on the Smith decision, and juries were so directed after 2001.

Then, in the case to which I referred earlier-the Attorney-General for Jersey against Holley-the Privy Council, by a majority of six to three, rejected the view of the noble and learned Lord, Lord Steyn, in Luc, although the minority, led by the noble and learned Lord, Lord Bingham, would have followed him. By now your Lordships will appreciate the degree of discussion and consideration of these issues that have divided the senior courts of this land-the House of Lords and the Privy Council.

In December 2005, in the case of James and Karimi, five judges sat in the Court of Appeal and held, unusually, that the principle set out by the majority in the Jersey case was correct, although it was a decision of the Privy Council, and that the House of Lords decision was not to be followed.

In the meanwhile, the Law Commission was tasked to look at the law of murder and to make recommendations on the partial defences of provocation and diminished responsibility. Its 2004 report concluded:

"The term loss of self-control is itself ambiguous because it could denote either a failure to exercise self-control or an inability to exercise self-control. To ask whether a person could have exercised self-control is to pose an impossible moral question. It is not a question which a psychiatrist could address as a matter of medical science, although a noteworthy issue which emerged from our discussions with psychiatrists was that those who give vent to anger by 'losing self-control' to the point of killing another person generally do so in circumstances in which they can afford to do so. An angry strong man can afford to lose his self-control with someone who provokes him, if that person is physically smaller and weaker. An angry person is much less likely to 'lose self-control' and attack another person in circumstances in which he or she is likely to come off worse by doing so. For this reason successful attacks by an abused woman on a physically stronger abuser take place at a moment when that person is off-guard".

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In summary, the Law Commission stated that,

The Law Commission concluded that a positive requirement that the accused had suffered a loss of self-control was unnecessary and undesirable.

Then there was extensive consultation. Everyone who could be consulted on this was consulted. The Law Commission came back with its report, Murder, Manslaughter and Infanticide, published in November 2006, where it revisited this area, and stated:

"The requirement of a loss of self-control has been widely criticised as privileging men's typical reactions to provocation over women's reactions. Women's reactions to provocation are less likely to involve a loss of self-control as such and more likely to be comprised of a combination of anger, fear, frustration and a sense of desperation. This can make it difficult or impossible for women to satisfy the loss of self-control requirement, even when they otherwise deserve a partial defence".

So the Law Commission, in its new recommendation, did not seek to resurrect the requirement of loss of self-control. It pointed to research that showed that in cases where provocation has been pleaded, although there may be uncorroborated evidence that the killing took place in anger, evidence of the loss of self-control, which the law requires, was much harder to find.

I have given that historical introduction for us to consider what is a dog's breakfast of an attempt to reform the law on provocation-that is Clause 44. What do we see there? Despite the recommendations of the Law Commission after extensive consultation, Clause 44(1) is predicated on the idea that the defendant's,

The loss of self-control is to have a "qualifying trigger". Then the reasonable man is brought into the picture: subsection (1)(c) asks whether,

Despite the clear recommendation of the Law Commission, despite all the qualifications that have been expressed and the diverse opinions that have appeared in the courts, the Government, in attempting this partial reform of the law of murder, have introduced loss of self-control as its central feature.

Clause 45 states that a,

I do not know whether that word has appeared in anything other than a statute referring to arms before-

Subsection (3) states:

"This subsection applies if D's loss of self-control was attributable to D's fear of serious violence",

from the victim against the defendant or another identified person. The concept could be expressed in a different way and is no doubt valid, but in the context of the clause it does not assist.

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Subsection (4) states:

"This subsection applies if D's loss of self-control was attributable to a thing or things done or said (or both) which-

(a) constituted circumstances of an extremely grave character".

What on earth is that supposed to mean?

3.30 pm

Then you come to paragraph (b), which says,

the defendant-

Nothing in this part of the Bill reverses the burden of proof. It is for the prosecution, therefore, to disprove that the circumstances were of an extremely grave character and that the defendant had a,

How does it do that? The clause is silent.

Subsection (6) contains qualifying triggers, but there are exceptions. The first, paragraph (a), is that the defendant's,

Paragraph (b) says that,

Finally, the subsection refers to,

Again, what is that supposed to mean?

I recall a case in which the noble Lord, Lord Carlile, and I were involved. I prosecuted and he defended. A young man was in a relationship with an older man, but he also had a girlfriend. The provocation came when the older man said to the younger man, "If you do not do whatever we do together again, I will tell your girlfriend". That was the provocation. He was stabbed 70 times. It certainly showed a loss of control. My noble friend Lord Carlile-as so frequently, although not always-was successful. The jury returned a verdict of not guilty of murder but guilty of manslaughter. I can think of another case in which I was involved in which a person fired a revolver. He struck two people with two bullets but there were four bullets left in the gun. The Court of Appeal held that he had not lost self-control as, if he had done, he would have fired all six bullets. There was no case of provocation, therefore, as it could not be shown that he had lost his self-control.

This is all nonsense. It is derived from antique law and it has been mangled in the process of producing this Bill. I was not here last week, for reasons that my noble friend chose to tell your Lordships; I will talk to him later about that. You have to compare this with the elegant amendment that was moved on that occasion by the noble and learned Lord, Lord Lloyd, in which these concepts of loss of control of the reasonable man were removed. The law of murder, if we are not to have it completely revised, as we would wish, was made a little more sensible. I beg to move.

The Lord Speaker (Baroness Hayman): I remind the Committee that, if Amendment 163 is agreed, I cannot call Amendment 163A by reason of pre-emption.

Lord Kingsland: The encyclopaedic exegesis of the law of provocation by the noble Lord, Lord Thomas, has lifted a heavy burden from my shoulders and

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enabled me to be uncharacteristically brief. Despite the fact that we have a large number of amendments to this clause, our amendments on loss of control as a partial defence to murder are designed to make the defence easier to apply. These amendments are a mixture of suggestions and of policy-and indeed probings-to find out exactly how the Government imagine the new partial defence might apply.

The essential point is that there should be a gross provocation-that is contained in our Amendment 163A-that triggers the killing. The amendment on its own does not refer to any time period and so would not prevent the defence from being used in so-called slow-burn cases. If the provocative behaviour that caused the loss of control was so egregious as to allow the defence to be raised, it would not matter how immediate it was before the killing. However, the requirement that the provocation be gross would mean that the loss of control must be sudden and in response to that behaviour.

Our Amendment 164A concerns the role of revenge. The view that the defence would be justified only when there was a sudden loss of control makes it hard to square with the notion of revenge. Indeed, the Government have recognised that the motive of revenge would prevent the defence from being raised in the first place. Curiously, however, they have qualified the sort of revenge that would be unacceptable. Only considered revenge would exclude the defence. That raises the question of what sort of revenge would be compatible with using the defence-presumably, unconsidered revenge. Quite how it will be determined in court and what degree of consideration is valid or, indeed, invalid are unclear. This seems to be a case of legislative drafting that is destined to exercise the judiciary's minds for many years to come.

Our amendment would remove this qualification. The Bill would then exclude any action taken in revenge being defensible. This would mean that people who killed in cold blood would never be able to raise the defence of loss of control. However, a defendant who could show that there was a gross provocation that triggered his loss of control would still have the benefit of a heat-of-the-moment defence.

Amendment 165A refers to trial procedures. Its gist is to make the defence available even if the circumstances were adduced by someone other than the defendant. Amendments 169A, 169D, 169E, 169F and 169G are probing amendments to find out exactly what behaviour the Government consider would trigger the defence.

Finally, Amendments 168A, 168B and 168C probe the proximity of the offence to the cause. We believe that this is a crucial issue. The defence of provocation has been reworked into the partial defence of loss of control, which has a qualifying trigger attributable to the fear of violence against the defendant by his victim. One of the key issues behind this is the concern that battered women are not able to claim the current defence, despite ongoing violence to them-in other words, the slow-burning fuse. We quite accept that this is a problem that needs to be addressed in the criminal law; but how long can the fuse be while still forming the qualifying trigger? "Reasonably proximate" does not mean that all the relevant events must be immediate to one another; but it sets out a test of what can be

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considered to qualify. The amendments simply ask what natural limit there will be between the offence and prior events that have caused the defence to be adduced.

Lord Campbell of Alloway: This is a question that troubled me for many years in my very humble position as a recorder. Is my noble friend saying that they are going to give up trying to test the guilt of a man who has lost his reason by assessing what a man would do if he had kept his reason, or have they gone away from that to test the man as he is according to what he did? The business of testing a man who has lost his reason by what a reasonable man would do is, in my respectful opinion, utter nonsense.

Lord Kingsland: My noble friend raises an important question that has been testing the courts, as my noble friend well knows, since the passing of Section 3 of the Homicide Act 1957. Indeed, that is one of the reasons why the Government have introduced the clauses in this Bill. In my view, the test must always be measured against the reasonable man, despite the fact that it seems nonsense to my noble friend. To attempt any other solution would be wholly against the objectives which not only this Government but other Governments who have had to deal with the law of provocation have always sought to achieve.

Lord Neill of Bladen: I have two brief observations to make. First, the noble Lord, Lord Thomas of Gresford, has set out the background and history so well that no addition is called for, save one. In the Holley case from Jersey, the ninth Law Lord also said that the law called for comprehensive reform. In other words, he agreed with the other eight who said, "No tinkering with parts of the law of murder". The logical conclusion from the argument that he made was that the clauses, instead of being further tinkered with here, should not stand part of the Bill at all. That comes in with Amendment 163 in the group, so technically I am in order in saying now that we should not indulge in any of these further revisions or amendments but should get rid of them lock, stock and barrel. We should let the Law Commission advise, there should be a proper consultation, and there should be a Bill dealing with the law of murder.

Secondly, Clause 45(6)(c) states that,

However, we are now in the field of looking at,

and the defendant having a justifiable sense of being seriously wronged. We will lose the public's respect if we legislate in this way. The most common thing one reads in the press in murder cases is that the wife or husband finds the other spouse in the sexual act, loses control, picks up a bread knife or whatever comes to hand and stabs and sometimes kills the other spouse. That is French-style crime passionnel. Are we now turning this into something that the English, with their stiff upper lip, will just take as an ordinary incident of marital life? That is ridiculous and out of line with the way in which people think about human passions. It is the one great terrible event that can happen in a married life and to say that it is to be

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disregarded makes nonsense of Clause 45 and the whole of the reform. That adds to my flame to get rid of these clauses altogether.

Baroness Mallalieu: I rise briefly to support what the noble Lord, Lord Neill, has just said as I see that there are two clause stand part debates in this group and one which will follow shortly in relation to Clause 44.

Over the past 10 years, I have had to attend, as all practising barristers have, continuing professional development conferences, when the new law is explained to the criminal bar. Time and again, I have had people turn to me, look at me in disbelief and say, "How on earth did you let that pass through the House of Lords?" All I can say is that gallant attempts have been made that have not succeeded. However, if these clauses on provocation go through I shall not be able to show my face again there at all. The phrase "dog's breakfast" would be a kindness.

The law of provocation is imperfect and difficult and is in a stage of development that makes it difficult for practitioners. I speak as someone who concluded a murder trial very recently in which just the sort of difficulties that have just been raised occurred. There clearly needs to be a radical change in relation to the whole law of murder, but to do it as it is being done in these clauses-I am not making a Second Reading speech-will make Parliament a laughing stock with the criminal bar. The complications are enormous, the scope for extending murder trials vast and the capacity for miscarriages of justice would be greatly increased if these clauses reach the statute book. I hope that when the time comes the Government will think again about them and listen to what has been said in this debate.

3.45 pm

Lord Lloyd of Berwick: I had intended to develop my argument when we come to Clause 44 stand part and I had asked for that reason that it be separately grouped. Unfortunately, I was misunderstood and Clauses 45 and 46 have been put with this grouping when they should not have been. I am to some extent in your Lordships' hands. I am very happy to develop the argument on Clause 44 stand part, as well as Clauses 45 and 46, although to some extent that will require repetition of what the noble Lord, Lord Thomas, has said. However, it has been anticipated by a number of noble Lords already, so perhaps I had better develop my argument at this stage. I am happy to do either.

The Attorney-General (Baroness Scotland of Asthal): We have grouped and regrouped and grouped again, and it is probably better if we take the amendments as they come, not least because that gives us a certain degree of order, although I understand entirely that the noble and learned Lord might have been seduced by the blandishments of those who have gone before him. I think that some degree of order may be necessary. I ask that we take the arguments in their place. In view of the fact that we have already been debating for 37 minutes, I shall have to give a detailed response in relation to all the amendments in this group. If we then merge it with a debate on another clause, I do not know when I shall sit down. I know that that is a very selfish thing to say, but I think that it is the reality.

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Lord Lloyd of Berwick: I am very grateful to the noble and learned Baroness, but I am not sure that it makes much sense to approach it that way, because the general argument on whether Clause 44 should stand part has been developed already by two of my noble friends and the noble Baroness. It would seem preferable that I should develop the argument now.

The Lord Speaker (Baroness Hayman): Perhaps I may be of assistance to the Committee. Clauses 45 and 46 stand part are in this group. It might be helpful to take those separately but to take Clause 44 now, as it has already been detailed in some speeches and comes next in the groupings. Then noble Lords could speak separately to Clauses 45 and 46, but it is obviously the Committee's decision.

Lord Lloyd of Berwick: I am happy to take that course. I start, as the noble Lord, Lord Thomas, did, with the present law of provocation, which must provide the necessary background to what is now proposed. I hope to show that the current law is fair and well understood by the judges, which is an important consideration, as well as being easily applied by juries. I shall then look, as the noble Lord, Lord Thomas, did, at the Law Commission report, published in 2006. Some of its proposals on provocation are controversial, as it accepted itself. But at least the proposals as a whole make sense and hang together, as one would expect. By contrast, the Government's proposals, as set out in Clauses 44 and 45, are all over the place.

The most serious defect lies in their structure. However, that is not the sole defect. Much of the wording is unsatisfactory. What is a jury to make of the phrases, already referred to by the noble Lord, Lord Neill,


Why should we exclude sexual infidelity from a jury's consideration? Is Parliament really to say that sexual infidelity can never give rise to a justifiable sense of being seriously wronged? Surely not. That must be a question for the jury.

If we enact the two clauses in anything like their present form I foresee years of uncertainty and all to no benefit, or none that I can see. No doubt when the noble and learned Baroness responds she will explain what the benefits are. In the mean time, I take the view that we will be much better to stick to the law as it is.

What is the current law? The central concept is loss of self control. If the defendant had been so provoked by the victim as to lose his self control, the rigour of the law should on that ground be mitigated, provided a reasonable man in the defendant's shoes would have done as the defendant did. So the objective part of the test is the test of the reasonable man. That is the test as was developed by the common law and is now confirmed by the Homicide Act 1957. The test, so simple at first sight, always concealed a difficulty. Suppose the defendant has some physical deformity. Suppose he is a hunchback, a cripple, or impotent. Would he not, if taunted, be more likely to lose his self control than a normal man without those deformities?

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