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The judges directed juries that in applying the reasonable man test, which may to some extent answer the question of the noble Lord, Lord Campbell of Alloway, they were directed to assume that the reasonable man had the physical characteristics of the defendant but not the defendant's capacity of self control. That last point caused difficulty but was finally decided after much hesitation by nine Law Lords in the case of Holley in 2005. Since that decision, the test whether a reasonable man with the defendant's physical characteristics would have lost his self control and done as the defendant did has been applied in murder cases up and down the country without causing any problems. It is as certain as any test can be. It is fair to the defendant, whether man or woman, since the ultimate test is a question of fact left for the jury's decision.

I turn to the Law Commission proposals, which also form the background to the current proposals. What it has done-this is the controversial part of its recommendations-is to recommend the combination of two separate concepts in a single partial defence. First, there is the defendant who is provoked by his victim and reacts in anger, as in the existing law. Secondly, there is the defendant who has suffered violence over many years at the hands of the victim and reacts not in anger but in fear. But those concepts are, in truth, inconsistent with each other. In the case of the defendant who reacts in anger, the key requirement is that he shall have lost his self-control. But in the case of the defendant who reacts in fear, loss of control has no place. The Law Commission recognised that crucial distinction and, in its recommendations, followed the logic of the argument and omitted any reference to self-control in the test.

I now turn to the Bill. The Government have accepted the Law Commission's suggestion that the partial defence should contain two separate strands-fear as well as anger-but they have rejected the Law Commission's view that loss of self-control has no place at all in such a scheme. Contrary to the Law Commission's recommendation, the Bill has restored loss of self-control to a central place in the scheme but says that loss of control need not be sudden. For the first time, we have the concept of a gradual loss of self-control, presumably to cover those who have killed in fear. But how does the judge explain a gradual loss of self-control to the jury? Take the case of the battered wife, who has suffered years of violence at the hands of her husband and then kills in cold blood. Is she entitled to the partial defence or not? If the answer is yes, how is the jury to reconcile that with Clause 44(4), which provides that a defendant is not entitled to the partial defence if he or she kills out of,

If, on the other hand, the answer is no, and a battered wife who kills in cold blood is not entitled to the defence, why not leave the law as it is? If she kills in hot blood, she has a perfectly good partial defence under the existing law. Or, are we to contemplate some halfway house between anger and fear where the defendant's blood is neither hot nor cold, but lukewarm? Again, how is that to be explained to the jury? The attempt to include in the same defence both fear and anger has resulted in a mishmash, which is bound to

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confuse the jury and which will, if I am right, take many years for the courts to elucidate. Since the structure itself is defective, it cannot now be put right by amendment. We must get rid of the clause altogether and think again.

There are other defects, which I should mention. Clause 44(1)(c) contains a succinct, current account of what the objective test of the law now requires-the objective test of the reasonable man. Judges will have no difficulty in explaining that test as they always have, so why do we need "a qualifying trigger" at all? If Clause 44 is to become law, however, that is what is required. The judge will have to explain Clause 45(4)(a) and (b), which refer to,


Having told the judge in one breath that the test is that of the reasonable man, as described, he must go on to say, "But only if the circumstances are extremely grave". In truth, these two tests, in two different clauses, are inconsistent with each other.

Judges are always being told by the Court of Appeal that they must keep their directions as short and simple as they can. I can say only that, in my experience, directing a jury on the basis of these new clauses would be a nightmare. They are bound to lead to more appeals, just as the existing law of provocation has settled down. As the noble Lord has said so often, the Government ought to have reformed the law of murder as a whole, in the light of the current Law Commission report. They have failed to do so. Instead, we are being asked to tinker with a small part of that law, which at present is working well. I have quoted Professor John Spencer QC of Selwyn College previously in a different context. His comment on these proposals is very pithy:

"If this is the best the Government could do, it would be better to do nothing".

I agree.

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Baroness Scotland of Asthal: We have had a very full and extensive debate. I too thank the noble Lord, Lord Thomas of Gresford, for the historical perspective from which he spoke to these amendments, and for his graphic description of them. I think he described them as "all nonsense and mangled". The noble Lord has never knowingly understated his case and he has made no exception this afternoon. However, these amendments are unnecessary. Straight away, I say to my noble friend Lady Mallalieu that I hear her concern, but I believe that she will be able to go back into the Bar Mess with some comfort. I can assure her that the Bar Council has said that it welcomes the extensive consultation over other areas of the Bill, including the "loss of control" provisions. It says that it is clear that the consultation has led to a significant improvement. The way in which these provisions have been described is not necessarily entirely accurate.

We have heard a very clear exposition of Clause 44. It is right that Clause 44 sets out the criteria that need to be met for the new partial defence of loss of control to succeed. It needs to be read with Clause 45, which deals with the qualifying triggers for the partial defence.

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I say to the noble and learned Lord, Lord Lloyd, that the tests are not as inconsistent as he appears to find them. I have listened carefully to the arguments put forward, but I am certainly not persuaded at this stage that the clause should not stand part of the Bill. We accept that there are a number of stakeholders-individuals and groups-who would have preferred us to look at the Law Commission proposals as a whole. However, there are good grounds for reforming the partial defences to murder, irrespective of the wider reforms.

I refer back to what the noble Lord, Lord Thomas of Gresford, described as the "elegant amendments", which we dealt with in his absence. The elegance of those amendments does not appear to have been quite appreciated by the Law Commission. An equally pithy response from Professor Jeremy Horder, the commissioner who had responsibility for leading extensive consultation on this for a long time, makes it clear that the new approach-which was advocated in those amendments-would be nothing short of,

The relevant body, of course, had the advantage of many years of extensive consultation with everyone. Pithy responses are always to be enjoyed by all.

As regards the amendments in hand, concerns have been raised that the provisions in the law as it now is are not as clear as they should be. It seems to be generally accepted that we need to change and refresh them. The concerns are numerous; for example, that the defence may be too easily accessible to those who kill in anger and not sufficiently accessible to those who kill in fear. Although the courts have developed case law to accommodate this-as the noble and learned Lord has made clear-there is, in reality, no obvious place for killings in fear of serious violence in a defence designed for angry reactions. It is right that there should be a tailored response to these sorts of cases. A further concern is that where there is evidence of provocation, the defence must be put before a jury and there is no option for the judge to sift out unmeritorious cases, and there is a lack of clarity in judging how a "reasonable person" in a similar situation might have responded to the provocation. We are very familiar with all those concerns, which all need to be addressed.

However, underpinning all this is a more general but important policy shift. Simply put, we do not believe that in this day and age it is any longer adequate to treat violence as a justified response to anger and we wish to raise the bar in relation to the partial defence in order to reflect this. We have consulted very widely and considered the issues carefully. We are confident that the changes we propose will strengthen the law and provide more just and equitable outcomes in individual cases.

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The Government recognise that the Law Commission's recommendations for this important and extremely sensitive area of law are ambitious and wide-ranging. It is critical that we get this right. Therefore, we announced as far back as December 2007 our intention to proceed with reform of the law on a staged basis. As I mentioned on a previous occasion, we will be looking at the commission's other recommendations, particularly those for a new structure for homicide in due course and in the light of the effect of any changes arising from this stage of our work. Meanwhile, we believe that there are good grounds to reform the partial defences to murder irrespective of the wider reforms.

In the case of the existing partial defence of provocation, the Government are persuaded that it is capable of being too generous to those who kill in anger, and we want to change the law to address this. This is a deliberate and carefully considered shift in policy. We are saying that in this day and age, people can and should be expected to manage their anger, whatever it stems from, without resorting to killing. However, we also believe that there are some extremely grave circumstances where killing in anger should be able to justify reducing a charge of murder to manslaughter. Conversely, because the law is historically designed to cater for anger killings, it is not sufficiently tailored to killings which are in response to fear. We are making changes to rectify this.

Clauses 44 to 46 address these concerns by abolishing the partial defence of murder due to provocation and replacing it with the new partial defence which is available in a limited set of circumstances where a defendant kills as a result of loss of self-control attributable to one of the following triggers. We have gone through them but it important to remind ourselves of them. I refer to a fear of serious violence, things said or done that cause the defendant to have a justifiable sense of being seriously wronged and constituted circumstances of an extremely grave character, or a combination of the above. Given this background, the noble Lord, Lord Kingsland, will not be surprised to hear that the Government cannot support Amendments 169A and 169E. They would make it possible for defendants to raise the partial defence of provocation in circumstances where things said or done caused the defendant to have a "justifiable sense of being wronged" as opposed to a,

Clause 45(4) provides that the partial defence will be available where the defendant loses self control due,

and caused the defendant,

We, too, looked at this matter and initially considered doing without this limb on the basis that killing in anger is almost never even partially excusable. However, the Law Commission provided examples of when such a defence might be appropriate.

By way of illustration, one possible scenario might be where a refugee is living in the United Kingdom. One day he unexpectedly encounters an individual he recognises as being part of a war party that had rounded up the people in his village and locked them

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into a church that was then set alight. He verbally challenges the individual, who laughs in his face and starts describing details of the attack that resulted in the death of all of the man's family. The man picks up a nearby chair and attacks the man, resulting in his death. We consider that the words and conduct limb of the partial defence needs to be included in this kind of extremely grave example, where the defendant would have a justifiable cause to feel seriously wronged. We remain of the view that the partial defence should succeed only in the gravest of circumstances. The phrase,

strengthens that aim and the Government therefore are not able to accept the amendments. I appreciate that the noble Lord was seeking an indication of how we put it.

Lord Lloyd of Berwick: If the view of the Government is that this should apply only in extremely rare cases, why do they not get rid of the otiose "reasonable man" test altogether?

Baroness Scotland of Asthal: We do not believe that it is otiose. There has to be a benchmark that regulates this. We think that the "seriously wronged" emphasis is in the right place. I also remind the Committee that the,

is in line with the Law Commission's recommendations, which came after very extensive consultations. That is why I say that we were not initially attracted by this approach. However, from the research that the Law Commission did and the approach that it took, we were convinced that this was a responsible and reasonable response to the experience that it had culled from the work that it had undertaken. We were clear that it would be wrong to disregard its advice and the work that had led it to that conclusion, with which we then concurred.

Amendment 163A would add the words "gross provocation" to Clause 44(1)(b). This amendment would add a new element to the test of both limbs of the partial defence. I can see how the noble Lord, Lord Kingsland, might wish to revert to the more familiar language of "gross provocation". Let me begin by reassuring him that the ground covered by the Law Commission's "gross provocation" recommendation in relation to things said or done is already reflected in Clause 45(4). "Gross provocation" was no more than the label that the Law Commission used for the limb of the partial defence covered by that clause.

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More significantly, the Government do not believe that it would be appropriate to apply a "gross provocation" requirement to the "fear of serious violence" limb of the partial defence; the amendment would apply the requirement to that limb as well as the one relating to things done or said. In creating the "fear of serious violence" limb, we are specifically seeking to better tailor the law to cases where a person kills in fear than at present. Adding a "gross provocation" requirement to the test for fear of serious violence would reintroduce some of the problems we seek to address through these reforms. In particular, it would again result in

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killings committed in fear needing to be shoehorned into a partial defence designed for killings committed in anger. Including that additional requirement would inevitably make it significantly harder for a plea based on fear of serious violence to succeed. It would also be inconsistent with the focus of the "fear of serious violence" limb, which is on what the defendant feared in the future rather than just what occurred in the past.

Amendment 164A seeks to remove "considered" from the reference to "considered desire for revenge" in Clause 44(4). The effect would be to narrow the circumstances in which the partial defence of loss of control might succeed, so that any situation where the jury found that there was a desire for revenge would be ruled out. The Government remain firmly of the view that revenge killings should not be able to benefit from the partial defence of loss of control. However, removing the requirement that the loss of control must be sudden potentially widens the scope of that partial defence in such cases. It is therefore necessary to create some provision to ensure that revenge cases, such as gangland killings where the defendant was plotting to kill the victim, do not benefit from the partial defence.

By referring to a considered desire for revenge, we are taking up the recommendation from the Law Commission, which observed that a person who acts in considered desire for revenge is rightly to be distinguished from someone who acts on impulse or in fear or both. We seek to capture those instances where the defendant has gone beyond simply experiencing a range of emotions-that was described earlier-to a place where they have reflected and chosen to act in revenge. The form of words strikes the right balance by barring thought-out revenge killings without automatically excluding cases where revenge may play part of a more complex range of emotions. It will of course be down to the jury in the end to determine whether the partial defence should succeed on the facts of the case.

Amendments 163 and 164, in the name of the noble Lord, Lord Thomas of Gresford, would remove the requirement for loss of self-control and the specification that that loss need not be sudden. It is important to retain that requirement, which is in the current law of provocation, because it ensures that the defence cannot succeed where the defendant kills "in cold blood". Of course I listened with great care to what the noble and learned Lord, Lord Lloyd, said about lukewarm blood and the difficulty that arises. A number of amendments have been tabled to remove the requirement for loss of self-control from the partial defence, but it would be wrong to allow a defence for murder to someone who kills when they are in full control of themselves-unless of course they meet the criteria for the full defence of self-defence, or the partial defence of diminished responsibility.

The clause makes it explicit that the loss of self-control need not be sudden for the partial defence to succeed. This allows for situations where the defendant's reaction has been delayed or builds gradually. As your Lordships will be aware, this is often the case where the defendant has been subject to long-term abuse-which has been referred to-at the hands of their partner who they eventually kill.

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I am aware that some people have argued that loss of control is by definition sudden. However, the evidence that we have looked at does not bear that out. There are real-life examples of a time lapse between the event that triggered the loss of self-control and the actual loss of self-control, or cases where a loss of self-control has taken place as a result of the cumulative effect of a number of events. We are talking here of cases where the loss of self-control does not necessarily manifest itself in an instant and explosive way, but neither could it be said that the defendant acted in cold blood. We very much based that on the analysis that has been undertaken by the Law Commission. Although it is a requirement under the current law of provocation that a loss of self-control must be sudden, case law has developed over time to deal with this very issue. The result is that, currently, the partial defence might still apply where there is a delay between the provocative incident and the killing. However, reaching this point has required a particularly strained interpretation of "sudden", which in reality was designed to cater for immediate angry reactions to provocation.

Our clause is designed to ensure that cases are not automatically ruled out just because the loss of control has not been sudden, but it will remain open for the judge, in deciding whether to leave the defence to the jury, and the jury, in determining whether the elements of the defence are satisfied, to take into account any time delay. This strikes the right balance between ensuring that the defence cannot succeed where the defendant kills in cold blood, while allowing for situations where the defendant's reaction has been delayed or where it builds gradually. We think that that is a just compromise.

This leads me to Amendments 168A, 169B and 169C, which seek to restrict the time between the trigger to the loss of self-control and the killing. I understand and sympathise with the noble Lord, Lord Kingsland, and others in what they are seeking to achieve through the amendment, but I hope that I have made it clear why we are unable to agree with it.

Amendment 165 relates to an issue raised by Professor Jeremy Horder of the Law Commission who appeared to be concerned about the assumption in Clause 44(5) that the defence is satisfied unless proved otherwise by the prosecution. Professor Horder offered the example of a defendant seeking a full acquittal on the grounds of self-defence. He suggested that in such a case, the prosecution might be tempted not to rebut the defence so that the defendant would be convicted of manslaughter rather than found not guilty. In considering such a scenario, it is important to be clear about the purpose of this provision.

All that subsection (5) of Clause 44 does is to clarify where the burden of proof lies when the partial defence of loss of control arises in the case. The subsection makes clear that where sufficient evidence of the partial defence is adduced within the meaning of subsection (6), the burden rests on the prosecution to disprove the defence to the usual criminal standard of proof. The position reflected in the clause is commonly the position within the criminal law. The same position in respect of the burden of proof applies now to the partial defence of provocation and the full defence of

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self-defence. Bearing in mind that we are replacing the current partial defence with a new one, we consider that it is helpful in the interests of clarity and certainty to make it plain in the clause where the burden of proof lies.

Amendment 165A deals with a related point. The usual position where the evidential burden applies is that the judge should leave to the jury any defence that it may reasonably find to apply on the evidence heard at the trial, regardless of who has raised it. The amendment would therefore be contrary to the usual position, and we see no good reason to shift the boundary.

As regards Amendment 168, the Government are confident that the current formulation captures the right cases, and I am therefore afraid that the amendment would dangerously widen the partial defence. I am confident that that is not what the noble Lord wishes. I will take as an example the case of a young woman who is conducting a secret affair with an individual who she knows her family considers unsuitable. The woman is discovered by her mother. The mother does not represent a threat to her daughter, but says that she will inform her father. The daughter, fearing serious violence from her father, who does not know of the affair and is not present, kills her mother. Removing the link between the fear of serious violence and the victim would allow the daughter to claim the partial defence, provided that the other criteria for the defence were met. No matter how unfortunate the circumstances of the defendant, we do not think that it is desirable or appropriate to widen the defence to this extent.

Amendment 169 seeks to remove the requirement that the things done or said, or both, to which the loss of self-control is attributable, must constitute circumstances of an extremely grave character. We cannot accept these changes, which would lower the bar and make the defence easier to argue. This is contrary to our stated policy of narrowing the defence and making its use more difficult for those who should not properly take advantage of it.

Amendments 169D, 169F and 169G are also contrary to the Government's aim of preventing people from relying on the partial defence where the qualifying trigger was caused by something that the defendant incited another to do or say. 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.

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