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Finally, I will mention briefly the two government amendments in the group. We have identified the need to amend a reference in Schedule 21 of the Criminal Justice Act 2003 to the partial defence of provocation. This is a necessary minor consequential amendment to bring Schedule 21 into line with proposals in the Bill.

I hope that I have persuaded the noble Lord, Lord Thomas of Gresford, of the virtues of our approach to the new partial defence of loss of control, and I hope that he will consider withdrawing his amendment to Clause 44. I apologise for taking some time, but the amendments were extensive in number and in detail.

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Lord Thomas of Gresford: The noble and learned Baroness the Attorney-General did not mention the fact that juries control the situation in a murder trial where the provocation defence is run. They set the standard, and it changes over the years as people's views change. I am sure that, 30 or 40 years ago, catching the spouse in flagrante delicto was treated as a much more aggravating feature than it might be today. I use that example to show that there is a change in society, and that the common law-and juries-adapt to it. It may be the case today that, if provocation were argued on the basis of adultery, it would not receive the same response as it would have done many years ago. The defence may be run, but would it succeed? It is for the jury to determine issues of that sort.

The noble and learned Baroness objects to my reference to mangling. If you say that a loss of self-control need not be sudden, you are forcing the English language into an area where it cannot go. A loss of self-control is sudden or it is not a loss of self-control. Let us suppose that a wife is dissatisfied with her husband's conduct towards her. It may not be serious violence, as suggested in Clause 45(3), but let us suppose that she administers poison to her husband slowly over a period of months in response to a fear of violence-perhaps she is knocked about. Could it possibly be said that over that time she is losing self-control, or would it not be said that that is a determined and considered way of killing her husband? One then has to ask the question: in that situation, should she be sentenced to mandatory life imprisonment when she has been the butt of violence in the home? The answer must be no.

4.30 pm

My point is that the whole concept of provocation was developed over centuries as a response, first, to allow some mitigation to the mandatory death sentence and that now it is used in response to a mandatory sentence of life imprisonment. It continues to alleviate the situation where a jury thinks it is just so to do. If we abolish the mandatory life sentence, either by the way suggested by the noble and learned Lord, Lord Lloyd, in his Amendment 150A last week, or as a matter of policy, and the judge were left to assess what is the appropriate sentence, which he does at the moment in any event, then we would not need the concept of provocation at all. If the Government want to alter the law of murder, they should seize this chance to get rid of the whole concept of provocation, deriving as it does from a completely violent society which has now gone.

Although I say that today the judge decides, in effect, what the sentence will be, that perhaps puts it a little high. A life sentence does not mean a life sentence: there are perhaps 30 to 35 people in prison on whole-life sentences. The judge will determine the tariff he thinks appropriate and leave the Parole Board to assess the risk that arises after that. So although the judge already has a very considerable input into the length that a person spends in prison, and he has discretion about what tariff to announce, but he does not have the final say.

The whole idea of provocation of reducing murder to manslaughter is out of date. I can take the noble and learned Baroness to the various details. I am

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grateful to those speakers who have pointed out some of the anomalies and the infelicitous drafting, but basically we should get rid of these clauses altogether and ensure that when homicide is to be amended, it is amended as a whole and not partially, as is suggested in this Bill. No doubt we shall continue to consider and discuss these matters. For the moment, I beg leave to withdraw the amendment.

Amendment 163 withdrawn.

Amendments 163A to 166 not moved.

Amendment 167 had been withdrawn from the Marshalled List.

Debate on whether Clause 44 should stand part of the Bill.

Lord Lloyd of Berwick: The Committee knows well that I am not persuaded that this clause, as it stands, gives rise to any benefit over the law as it exists at present. I believe it will create years of uncertainty. I shall return to this matter on Report.

Clause 44 agreed.

Clause 45 : Meaning of "qualifying trigger"

Amendments 168 to 169G not moved.

Amendment 170

Moved by Lord Thomas of Gresford

170: Clause 45, page 29, line 19, leave out paragraph (c)

Lord Thomas of Gresford: I have already made my criticisms of the expression "sexual infidelity". What is meant by that? Does it mean only between married partners, does it mean between a man and a woman, or a man and a man? How is that to be defined? It is such an imprecise term. Does it cover the situation of the case to which I referred earlier, in which my noble friend Lord Carlile and I were involved? What is it supposed to cover? This is a probing amendment, seeking clarification of this expression. I beg to move.

Lord Kingsland: I wholly endorse what the noble Lord, Lord Thomas of Gresford, has said, and I await the response of the noble and learned Baroness, Lady Scotland.

Baroness Scotland of Asthal: I hesitated in standing in case I was a little too quick again. Of course I understand what has been said by the noble Lords, Lord Thomas of Gresford and Lord Kingsland. The Government understand that these issues change over time, and hear very clearly what the noble Lord, Lord Thomas, said about the approach that people have historically taken to infidelity, and how that may well have moved on. We understand that there are many situations where passions run high and where people feel a strong sense of having been wronged, especially within close personal relationships. We accept that these situations may have a devastating impact on the individuals involved. In this day and age, whatever the views may be about that, we want to put beyond peradventure that this cannot be the basis upon which one should seek to take another's life.

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We believe that these are circumstances that people need to be able to deal with without resorting to violence. This is particularly the case where sexual infidelity is concerned. The history of the partial defence of provocation has led to a commonly held belief that it is a defence which can be abused by men who kill their wives out of sexual jealousy and revenge over infidelity. Indeed, it may be the other way around, when women kill their husbands because they have betrayed them with another woman-particularly if that other woman had at some stage been befriended by them. This 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 this problem, and that pleas of provocation on the basis of sexual infidelity generally do not succeed, it is still true that, under the current law, the defence can be raised and could technically succeed. We want to make it clear in the Bill that this can no longer be the case, and that it is unacceptable for a defendant who has killed an unfaithful partner to seek to blame the victim for what occurred. It is important to correct a misconception here. By doing this, we are not saying that people are not entitled to feel upset and angry at a partner's unfaithfulness: we are concerned here with a partial defence to murder and the circumstances in which it is appropriate to reduce liability for murder to that of the less serious offence of manslaughter. We are saying that killing in response to sexual infidelity is not a circumstance in which such a reduction can be justified.

The onus on those who seek to remove the provision from the Bill is to explain why it is believed that the killing of one person by another simply because the victim had been unfaithful is grounds for reducing a murder conviction to manslaughter. I understand that neither noble Lord is suggesting that it should. Therefore, I argue that the clarification is helpful because it simply states that which many believe is now and should be the case in relation to murder and killing on that basis.

Lord Thomas of Gresford: Infidelity has a very wide range. There can be the casual affair, where there is a feeling of disappointment; or there can be a breach of trust between partners where there has been a lengthy marriage, where there has been concealment, where one or other of the partners is disabled, and so on. It can be something that moves people to the depths of their being-that their partner should be in such a breach of the trust that has been imposed on them and is unfaithful in those circumstances. If the Government want to maintain the defence of provocation, and to maintain it on the basis of the loss of self-control-which is fundamental to the concept-I fail to see why a loss of self-control caused by a deep breach of trust and unfaithfulness should be any less a reason for reducing murder to manslaughter than any other form of provocation that may be advanced. It is fundamental.

Looking back in history, one sees that that was one of the four reasons determined in 1709 and based on earlier common law provisions. Adultery was one of the reasons then for provocation. I do not want to go back to those days; I do not want to go back to

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provocation; but if we are to base the law on loss of self-control, how can we exclude the deepest feelings and passions, the breach of trust and breach of faithfulness, from our considerations?

The important point that the noble and learned Baroness makes-she agrees with me on this-is that today a defendant would be fortunate to succeed on the basis of infidelity alone. Standards have changed, the sense of trust has changed. Today, a defence of provocation based simply on infidelity without a deeper and broader background would not succeed. Why not? Because juries come from the world we live in, and they are the people who assess the degree to which a person has been harmed and the degree to which that person can be excused from the consequences of a murder conviction-that mandatory life sentence-by reason of the passions that have been unfairly stirred up inside them.

I do not accept the reasoning that the noble and learned Baroness has put forward, and I have no doubt that we will return to this at the next stage of the Bill. I beg leave to withdraw the amendment.

Amendment 170 withdrawn.

Clause 45 agreed.

Clause 46 agreed.

4.45 pm

Clause 47 : Infanticide (England and Wales)

Amendment 171

Moved by Lord Low of Dalston

171: Clause 47, leave out Clause 47 and insert the following new Clause-

"Infanticide (England and Wales)

Section 1 of the Infanticide Act 1938 (c. 36) (offence of infanticide) is repealed."

Lord Low of Dalston: At the request of my noble friend Lady Murphy and with the permission of the Committee, I am moving Amendment 171 and speaking to Amendment 172. The amendments were tabled by my noble friend, who is sorry that she cannot be here this afternoon.

Clauses 47 and 48 make purely technical amendments to the offence of infanticide, which is effectively retained unchanged by this Bill. Amendments 171 and 172, on the other hand, would abolish infanticide completely both as an offence and as a partial defence to murder in England, Wales and Northern Ireland.

The Infanticide Act 1922 effectively abolished the death penalty for a woman who deliberately killed her newborn child while the balance of her mind was disturbed as a result of giving birth, by providing partial defence to murder. The sentence that applies, as with other partial defences to murder, is the same as that for manslaughter. The Infanticide Act 1938 extended this defence to mothers the balance of whose mind was disturbed at the time of the act or omission by reason of not having fully recovered from the effect of giving birth or by reason of the effect of lactation consequent on giving birth. Before the partial murder

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defence of diminished responsibility was introduced into UK law by the Homicide Act 1957, this provided an important means of selecting a more appropriate sentence for a mother found guilty of killing her infant child than the mandatory life sentence or death penalty applying to murder at the time.

In recent years, however, it has become rare for a mother who kills her infant child to receive a custodial sentence, except in exceptional circumstances. As a result, the provisions on infanticide here and in other jurisdictions have been the subject of criticism. For example, the 1975 Butler committee, the Law Reform Commission of Canada and the New South Wales Law Reform Commission have all recommended the abolition of infanticide. The Royal College of Psychiatrists in this country, too, believes that the offence or defence of infanticide should be abolished, with cases that would otherwise come under that offence being dealt with through the defence of diminished responsibility.

The arguments for abolition are fourfold: first, the doubt as to the biological basis of post-partum disorders, along with the evidence suggesting that external factors play as much of a part; secondly, the overlap with the defence of diminished responsibility; thirdly, the evidence that the majority of post-partum mood disorders do not impair mental functioning; and, fourthly, if we accept that mental disorders in carers are often not biologically based but associated with social and economic factors, the lack of logic in confining infanticide to natural mothers of children under 12 months. Arguments for retaining infanticide include the attraction of a defence that recognises the experience of women, the advantages of having an offence with which women may be charged, rather than relying on the defendant to raise the defence of diminished responsibility, and fears of an increase in sentences passed on infanticide offenders if they are sentenced as manslaughter offenders.

I turn first to the arguments for abolishing infanticide. What is the cause of post-partum disorders? Is it biological or something else? The existence of post-partum disorders such as the maternal blues, post-partum depression and post-partum psychosis is not in dispute. There is considerable debate, however, about the cause of such disorders, with little evidence to show that they are caused primarily by hormonal or chemical imbalances. In the case of the maternal blues, factors such as lack of sleep, the social situation, economic factors and general stress are the main influences. In the case of post-partum depression and post-partum psychosis, pre-existing mental illness may be exacerbated by the birth and care of a baby.

The symptoms of post-partum depression are no different from those of other forms of major depressive or psychotic illness. In rare cases-one in 1,000 births-where a sudden psychosis develops after birth, there is some evidence that a sudden change in hormones after birth may be a contributing factor. Since one in 25 women who have puerperal psychosis kill their babies, it is crucial to pick this condition up early. However, most of the women who come before the courts for infanticide do not fall into this group; they fall fairly and squarely into other categories. For example, the mother of Baby P, who was older than 12 months, would characterise one group, and the young schoolgirl who gives birth in secret and then kills the child in a desperate panic after

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birth would be another. This latter group tends to be mentally normal. If there is going to be an infanticide defence, it should surely be based on the operative socio-economic factors, not on antiquated beliefs about the link between women's biology and their degree of criminal responsibility.

The reference in the definition to lactation is, frankly, archaic and has no basis in medical science. Hormonal changes may play a part in the post-menstrual period and at the menopause, as has often been argued in court, but we do not have separate legislation to deal with them. On the other hand, since socio-economic factors are not otherwise used to excuse people from criminal responsibility, there seems to be no good reason for retaining infanticide. Many researchers would agree that all three types of post-partum disorder are associated with multiple factors: psychological factors, such as low motivation for pregnancy and low level of psychological health; and demographic factors, such as socio-economic status, stress and psychiatric and genetic predispositions. It would appear that biological factors cannot be blamed for any but a small minority of cases, but rather a combination of external and internal factors. Lactation does not figure anywhere.

It is questionable whether the defence should be based on medical criteria at all. Does this not lead to the unjustified exclusion of social, psychological and economic factors as valid bases for a defence? Women who kill their children and attempt to kill themselves are usually living difficult lives with violent or absent spouses, financial difficulties, a handicapped child, fear of the spouse sexually assaulting the child or fear of losing custody of the child. By relying simply on the medical to the exclusion of social factors, we force psychiatrists to distort their diagnoses in order to conform to the requirements of legislation. In a word, if the killing was committed as a result of an abnormality of mind, it is covered by the defence of diminished responsibility; if it was not, a quasi-psychiatric or pseudo-psychiatric defence is not appropriate.

There is the issue of how to deal with young girls who kill their newborn infants within 24 hours of a secret birth. Establishing an abnormal mental state in retrospect may be hard indeed. Would it not be more honest to stop pretending that such cases were the result of childbirth itself or that it was hormones that drove the mother to it? I remind the Committee that if Amendment 150A, tabled by the noble and learned Lord, Lord Lloyd of Berwick, were accepted, there would be extenuating circumstances to cover this kind of case.

If it is accepted that factors other than hormonal imbalances are involved in the killing of young children, the question arises of whether it is appropriate to limit the defence to natural mothers. In over 50 per cent of cases of child killings, men are responsible, most commonly the stepfather of the child. The reasons given for such killings are often similar to those given by natural mothers: uncontrollable crying, pent-up frustration with the child, difficult economic circumstances and so on. If the test is changed in relation to mothers and broadened beyond mere medical factors, should it not also apply to fathers? Would that extend the test too far? What about stepmothers or women who adopt children?

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At this point, it is pertinent to question the ideological basis of infanticide, although I would feel more comfortable if the noble Baroness, Lady Murphy, were making this point. Women are given special treatment by way of gender-specific law, based on the notion that they are naturally susceptible to mental instability as a result of giving birth. Arguably this conveys a stereotype of women as inherently unstable because of their biology. Infanticide may benefit individual offenders, and one is sympathetic to that, but it is pertinent to question the wider implications of a law that makes special concessions for women based on a notion of inherent disability.

The defence of diminished responsibility does not contain the same problem as it does not single out women on any notion of a particular vulnerability to mental illness. As the Law Commission has said, to accord a special defence to women seems to be based on an idea that any woman who is mentally unwell and who commits what would seem to be the ultimate maternal crime of killing her child must have done so because of her state of unwellness. Otherwise, how could a mother kill her own child? However, such a presumption would be medically wrong and no different from the organic cerebral consequences of epilepsy, for example, in men, who cannot benefit from a special defence.

I turn to the arguments for retaining infanticide. The first turns the last argument on its head and maintains that there are advantages in recognising women's experiences by way of a gender-specific offence or defence. It is suggested that, if infanticide were subsumed under the defence of diminished responsibility, the special problems faced by women with children would cease to be recognised by way of a separate offence or defence; the defence of diminished responsibility would focus attention on an individual woman's mental state rather than on the special pressures commonly experienced by women that may have led to their mental state.

It is also argued that there may be procedural advantages in being able to charge a woman with infanticide rather than with murder and shifting the onus on to her to raise the defence of diminished responsibility. Achieving a proper reduction in conviction is not then reliant on the defendant's co-operation, as it is with diminished responsibility, where only the defendant can raise the issue. That can be important when a defendant is in denial and will not allow her legal advisers to put forward a psychiatric defence or submit to a psychiatric examination, which she perceives as designed to prove that she did kill her child. However, it is believed that this more general problem relating to diminished responsibility should be solved by changing the rules so that that defence could be raised not only by the defence but by the Crown or the judge, as with insanity. Rather than retaining infanticide to avoid this problem in a small number of cases, infanticide should be subsumed under diminished responsibility and the rules about raising that defence altered. In any case, in the majority of cases infanticide is used as a defence rather than an offence and the prosecution always has the option of accepting a plea of guilty to manslaughter where a woman is charged with murder and there is clear evidence of mental disturbance.

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Lastly, it is argued that there are disparities between the sentences passed on those found guilty of infanticide and those found guilty of manslaughter and that infanticide should be retained because, if it were abolished, sentences imposed on women who kill their children would increase. However, manslaughter attracts a wide range of sentences and courts have a wide discretion to impose a non-custodial sentence for manslaughter where this is appropriate in the circumstances of the individual case. I simply do not believe that the courts would deal differently or less sympathetically with women in this situation if the charge were manslaughter rather than infanticide. If this is wrong and current sentencing guidelines prove inadequate to cover the range of circumstances in which diminished responsibility applies so as to include infant killing, I presume that the guidelines could be modified.

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