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6.45 pm

Lord Bach: My Lords, Amendments 57, 58 and 59 in the name of the noble Lord, Lord Hunt of Wirral, deal with the important question of developmental immaturity in the context of the diminished responsibility partial defence to murder. We remain unpersuaded of the need for the amendments, and I will do my best to explain why.

The current reform of the partial defence to murder of diminished responsibility is designed to modernise

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the law; we do not intend it to change its scope fundamentally or at all. We do not believe that the law needs to be opened up in the way proposed. Interestingly, I can pray in aid the Criminal Bar Association, which takes the same view on this issue. Originally it supported the inclusion of a developmental immaturity clause in the diminished responsibility partial defence to murder, but it changed its position when responding to the consultation and now considers that it is not necessary.

Let us put that to one side, though, and deal with the issue. The current law of diminished responsibility does not include any such concept as developmental immaturity, and we have not been shown any convincing evidence of a problem with its absence. The new formulation in these clauses is based on the concept of a recognised medical condition. We do not consider that the defence of diminished responsibility should be available where no such medical condition is present.

It has been argued that that is unfair to juveniles, as it will be harder for them to benefit from the defence of diminished responsibility than for adults to do so. We do not accept that either. Where a defendant under 18 has killed, he or she may be able to benefit from the partial defence if they are suffering from a recognised medical condition. In many cases where the child defendant could be described as being developmentally immature, this immaturity will have resulted from a recognised medical condition; for example, learning difficulties, autistic spectrum disorder or frontal lobe disorder. One might characterise that as "abnormal" immaturity.

It has also been argued that a normal 10 or 11 year-old who must face the full force of the law is disadvantaged when compared with an adult with a recognised medical condition who functions similarly to a 10 or 11 year-old child and may succeed with a diminished responsibility partial defence. We think that there are some problems with that argument. First, it is not realistic to talk about people behaving in a way consistent with a particular age; behaviour varies so much, both between and within individuals of the same and different ages, that we are not sure that the concept is helpful.

Secondly, the reason why the adult in this scenario benefits from the partial defence is not that he is behaving like a child but because his medical condition results in a mental abnormality substantially impairing his ability to make a rational judgment, understand the nature of his conduct or exercise self-control. On the other hand, a child who is developmentally immature but who has no recognised medical condition is not suffering in this way; they are, as it were, "normally" immature.

In any event, we argue that this does not constitute an argument for a developmental immaturity limb to the partial defence to be added but, rather, for a change in the age of criminal responsibility. That is not a matter up for discussion today with regard to any amendments. It certainly was in Committee; I think it was the noble Baroness, Lady Murphy, who introduced such an amendment. If this is really an argument about the age of criminal responsibility, that is a different matter altogether. I do not believe that the noble Lord is arguing for such a change.

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It has also been argued that clinical experts are not able to diagnose certain conditions in those under 18 where, if an adult displayed similar characteristics, this would result in a diagnosis of a recognised medical condition. However, we know that in practice the psychological conditions in relation to which this argument is made-for example, various personality disorders-are diagnosed in juveniles, so we do not think this is an insuperable difficulty.

It is our view that where a child over the age of criminal responsibility kills, they should be held fully responsible for their actions unless they are suffering from a recognised medical condition even if they are immature for their age. A developmental immaturity limb in the diminished responsibility partial defence would have a number of significant disadvantages. Let us suppose that a teenager, in a fight with another teenager, pulls the knife he routinely carries and stabs to death the other youth. He could potentially argue the defence even if he has no medical condition but is simply immature for his age, however that immaturity might be explained or described. We do not believe that a partial defence to murder should be even potentially available in such circumstances.

Again, we are concerned that young defendants would routinely seek to plead the partial defence, even in cases manifestly lacking any merit. The courts would be required to contend with this and it would inevitably lead to delays and unproductive use of criminal justice services. In 2007, 38 trials and 26 convictions involved homicide where the defendant was under 18, so the number of cases likely to be affected is significant. Importantly, we have not seen evidence that the absence of a developmental immaturity limb in the current law has resulted either in injustice or practical difficulties. For these reasons we oppose the amendment and invite the noble Lord to withdraw it.

Lord Hunt of Wirral: My Lords, I am grateful to the Minister for his response and to other noble Lords for their contributions. The Minister recognises that we are merely trying to reinsert a recommendation of the Law Commission. As the noble Baroness, Lady Murphy, said, the omission of developmental immaturity from Clause 46 is particularly serious in the context of the abolition of doli incapax. We have discussed this matter previously. I hope that the Minister accepts the reasoning behind the amendment. We shall consider carefully all the points he has raised and reflect on them. In the mean time, I beg leave to withdraw the amendment.

Amendment 57 withdrawn.

Amendments 58 and 59 not moved.

Clause 48 : Partial defence to murder: loss of control

Amendment 60

Moved by Lord Hunt of Wirral

60: Clause 48, page 28, line 31, at end insert "caused by gross provocation"

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Lord Hunt of Wirral: Amendment 60 seeks to add to Clause 48 the words "caused by gross provocation" as an explanation of why the defendant lost control and killed his victim. This is more a question of language than substance, but it is no less important for that. I recall that in Committee the noble and learned Baroness, Lady Scotland, pointed out that Clause 49(4) contained a qualifying trigger to the defendant's actions if his loss of self-control was attributable to,

and, (b), caused the defendant,

The noble and learned Baroness suggested that while the words "gross provocation" were not mentioned anywhere, their meaning was none the less captured by that subsection. I do not disagree with that analysis but I still feel that the term "gross provocation", which is long established and well understood, is worth preserving in the body of legislation. I believe that the term is more easily understood by a jury than the term "loss of control", which, without the necessary qualifications and explanations, sounds more anodyne than the behaviour we are describing.

I understand that the General Council of the Bar shares this concern and that it suggests that "loss of control" will not convey the right message. In its view, and ours, "loss of control" does not convey the same standing or high threshold as "gross provocation". For that reason we urge the Government to reconsider the Bill's drafting in this area. The amendment does not seek to change the substance of the partial defence but rather its description. Words are important and can play a role in informing perceptions. If the Government do not wish to change the drafting at this stage, the House would very much welcome a clear statement from the Minister on how "loss of control" will be interpreted in practice. For the reasons I have given in introducing Amendment 60-namely, that we are concerned about the interpretation of "loss of control" rather than whether the new partial defence is sound-we cannot support Amendment 61 tabled by the noble and learned Lord, Lord Lloyd of Berwick.

We have said at every stage that we regret how the Government are introducing these reforms. This should have been a Coroners Bill, a Reform of the Law of Murder Bill or any number of separate Bills. The Bill lumps together wildly disparate topics as the Government try to spatchcock in as many ideas as they can while they can. Perhaps I am being too cynical, but the reform of the law of murder and the partial defences which we are seeking and debating are huge and important topics that deserve full parliamentary scrutiny. However, we have the Bill that the Government have presented to us, and we accept the changes that these clauses seek to make. I hope the noble and learned Lord, Lord Lloyd, accepts that we do not believe that we should remove the clause from the Bill, but we have considerable reservations about it. I beg to move.

7 pm

Lord Lloyd of Berwick: My Lords, my amendment is grouped with this one, but I shall first address the Conservative amendment, which is good as far as it

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goes, but, as I hope to show, it does not go anything like far enough. My only comment at this stage is that if the Conservatives press their Amendment 60, they ought logically to support my Amendment 64; otherwise, they will reintroduce the concept of provocation by their amendment without any definition of what they mean by "provocation". They cannot rely on the common law definition of provocation or on Section 3 of the Homicide Act 1957 because they will have been repealed, unless they support my amendment. I look forward with great interest to see how they deal with that conundrum. It seems to me that they have probably argued themselves into a corner from which it may be difficult for them to get out.

On the broader question of whether we should leave Clauses 48 and 49 in the Bill, my view is that they are beyond redemption. But I should have supposed that the Conservatives would also have wanted to leave those clauses out, for this reason: they presumably intend-perhaps they hope-to win the next election. If they do, they will have to grapple with the main recommendations of the royal commission report on homicide, which the Government, to their shame, have so far ignored or at least done nothing about. If the Conservatives win the election and if they decide to support the proposals of the royal commission they will have to revisit the partial defences, including the partial defence of provocation. But, surely, it would be madness for them to agree to an amendment on provocation now and then seek to amend again in two or three years' time in the light of the new structure of homicide. Logically and sensibly-if they were logical and sensible, which I doubt-they should support Amendments 61 and 63.

Clause 48(1)(a) and (c) contain a succinct account of the law relating to provocation, which provides an objective test-the test of a reasonable man-which is so familiar to the law. If the jury decides that, as reasonable men and women, it would have lost its self control and done as the defendant did, the partial defence succeeds. The defendant is then convicted of manslaughter and sentenced accordingly. Currently, that test is being applied up and down the country. Since the case of Holley, which was decided by nine Law Lords in 2005, it is not causing any great difficulty-indeed, no difficulty at all so far as I am aware.

However, the Government in their wisdom have decided that juries are somehow getting it wrong. In their view, too many men are getting off light. They ought to be convicted of murder when they are being convicted of manslaughter. On 7 July, at col. 582, the Attorney-General said that in this day and age people ought to be able to control their anger. But the defence does not succeed just because the defendant kills in anger, it succeeds only if the jury, as reasonable men and women, would have done as the defendant did. If that is so-I see no evidence that it is not-why do we need a qualifying trigger? The answer is that we do not. The Government have simply not made out a case that the law as it stands is too favourable to men and women. The October issue of the Criminal Law Review states that making the defence of provocation is "unnecessary, unjust and wrong". I agree with that view.

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What will be the consequences if we enact Clause 48? I doubt very much whether it will make the slightest difference. Juries will continue to apply the existing objective test of the reasonable man which they know and understand. I suspect that the Government will fail in their objective, just as they failed in their objective to increase the number of those who are convicted of rape. It will prove to be yet another paper exercise. But in all other respects the consequences will be disastrous. One should put oneself in the position of the jury, which has just been told to apply the objective test of the reasonable man. Only a few moments later, it is told that the test should be applied only if the reasonable man would have had a justifiable sense of being seriously wrong. If I know anything about juries, at that point it will begin to lose the drift. Not only juries will lose the drift, judges too will be mystified.

Judges will have to explain these qualifying triggers in words that the jury will understand. I fear that their attempts to do so will lead to years of appeals. In truth, the reasonable man test, set out accurately in one part of the clause, is inconsistent with the qualifying triggers which are set out in another part of the clause. It is either one or the other. It cannot be both at the same time.

The Government have not only that objective of making it more difficult for men, they also have the objective of making it easier for women to rely on the partial defence. Particularly they have in mind battered wives who kill their husbands after years of abuse. Here, I have every sympathy with the Government's objective, which was one of the reasons why I moved my earlier amendment. But the Government have set out to achieve their objective in the most extraordinary way. They have tried to shoehorn-to use a word used by the Attorney-General-the new partial defence based on fear into the existing partial defence based on loss of control. But that does not work.

The battered wife who decides after years of abuse to get rid of her husband does not lose her self-control. She makes a deliberate decision, which is itself expressly excluded by Clause 48(4). The Government agree that in those circumstances there should be no partial defence. It is only if the battered wife is driven by fear of what may happen in the future that she will have a partial defence. That was made abundantly clear by the Attorney-General on 7 July 2009 at col. 384. But how does the jury begin to distinguish between revenge for the past, which is excluded, and fear for the future, which is the whole object of this proposed amendment? How in either case can it be said that she has lost her self-control, even with the new qualification that loss of control need not be sudden-whatever that may mean? A gradual loss of control still entirely escapes my understanding.

At the end of Committee stage, I quoted the pithy observation of Professor Spencer who said that, if this is the best the Government can do, they would have done better to do nothing. I now quote another pithy observation, from a distinguished practitioner who said that to call this a,

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That was the observation of the noble Baroness, Lady Mallalieu, and I agree with it. I shall not vote in favour of Amendment 60, which seems only to scratch at the surface. However, when the time comes I shall move my own amendment, which would leave the clause out altogether.

Lord Thomas of Gresford: My Lords, I have already indicated to your Lordships that I do not consider the present common law defence of provocation to be a sensible defence. It does not stand up to analysis at all. I happen to think that the Government are making it even worse in the amendments that they are proposing in the Bill. They are using various expressions that are so inadequate and so difficult to understand that a jury could not, for a moment, follow the summing up that a judge would be obliged to give.

I do not need to speak at length on this. As far as I am concerned, the Government are making a major error in trying to use part of the Law Commission's report to amend the law on homicide, instead of either taking or rejecting the whole thing. There have been calls by the noble Lord, Lord Hunt, for a completely new look at the whole thing. I hope that that is still his position; if it is, he will support the noble and learned Lord, Lord Lloyd, in the Division that he has suggested will happen. If the noble Lord does that, it would be quite wrong for any newspaper or journalist to suggest that the Conservative Party had, all of a sudden, become weak on crime.

Had the amendment moved by the noble and learned Lord, Lord Lloyd, been accepted, it would have strengthened the position that a person who committed murder was convicted of murder, even though there might be extenuating circumstances. These partial defences, which change the terminology simply in order to give the judge a wider sentencing power than he presently has with the mandatory life sentence, form what is just a device-and one that has outworn its usefulness. The whole of this should go.

Lord Bach: My Lords, Amendment 61, tabled by the noble and learned Lord, Lord Lloyd of Berwick, would remove Clause 48 from the Bill. The effect would be to knock out the first part of the proposed partial defence to murder, of loss of control, but it would effectively mean the end of the attempted reform of this part of the law. That is not acceptable.

We understand that for some-I think that the noble Lord, Lord Thomas of Gresford, is one of those-change in the law on homicide has been too slow to come. Many in this House would have preferred to see us deal with all the Law Commission recommendations as one. That has not been done. Instead, we have decided to take a staggered approach, part of which is to take note of our responsibility to take the opportunity that we have today to reform what we consider an outdated piece of law, which many think is a mess.

It is not just us in Government who believe that the current law of provocation is not satisfactory. In its report Murder, Manslaughter and Infanticide, published in November 2006, following extensive consultation with a wide range of stakeholders, the Law Commission said that,

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Indeed the Law Lords themselves, when they passed judgment in Holley, accepted that the law of provocation was "a mess" and beyond their ability to retrieve. It will be remembered that the noble and learned Lord, Lord Nicholls, in delivering the majority verdict of the nine-member Judicial Committee of the Privy Council in that case, said:

"In expressing their conclusion ... their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts ... Their Lordships share this view".

7.15 pm

We are convinced that, in today's world, a person should not normally be even partially excused for killing when their actions were prompted by anger. For that reason, we are abolishing the partial defence to murder of provocation, which, in our view, allows for the possibility of defendants escaping a murder conviction and the ensuing life sentence in too many cases where what gave rise to their loss of self-control was not an extremely serious action or series of actions.

We considered going as far as removing a partial defence to murder completely in cases of killing in anger but concluded, as did the Law Commission, that there might be extreme circumstances where injustice would result if a partial defence were never available. For this reason, a partial defence to murder will be available only to someone who kills in anger if the words or deeds causing them to lose their self-control constituted circumstances of an extremely grave character, which gave them a justifiable sense of being seriously wronged, and if a person of their age and sex, and in their circumstances, might have reacted in the same or a similar way.

On the other hand, where a fear of serious violence drives a person to lose their self-control and to kill, we believe that it should be possible for a defendant to plead a partial defence on that specific basis, so long as a person of their age and sex, and in their circumstances, might have reacted in the same or a similar way. The current law is simply not designed to deal with such cases; the courts' efforts to accommodate them have required a strained interpretation of a defence that was always intended to cover killings in anger rather than in fear. This may typically, but not exclusively, arise in situations of long-term abuse, where the victim of that abuse eventually loses their self-control and kills their former partner and assailant, fearing further violence. It may also be relevant in situations where the full defence of self-defence fails because a defendant, who has lost their self-control, uses more force than it is reasonable for them to use. We believe that our clauses achieve the right balance because the defendant may plead the partial defence only in relation to when they lost their self-control and not if they acted in a considered desire for revenge, even if they feared serious violence.

Amendment 60, in the name of the noble Lord, Lord Hunt of Wirral, would add the words "gross provocation" to Clause 48(1)(b). It would have the effect of adding a new element to the test not just for

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one limb but for both limbs of the new partial defence. I reassure the noble Lord that the ground covered by the Law Commission's "gross provocation" recommendation relating to things said or done is already reflected in Clause 49(4). "Gross provocation" was merely the title that the Law Commission chose for the limb of the partial defence now included in that clause. We argue that it did not have a life of its own, so to speak, as it unfortunately does in the noble Lord's amendment. We believe that the amendment is therefore wholly unnecessary and that there is a danger that it would cause confusion. Subsections (3), (4) and (5) of Clause 49 already spell out the qualifying triggers to which the loss of self-control must relate for the partial defence to apply.

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