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Coroners and Justice Bill

My Lords, the noble Lord, Lord Bach, referred to the history of provocation. It was a defence in common law that started to be developed at the beginning of the 18th century as an act of mercy by a jury who, having considered all the circumstances, permitted a defendant who would otherwise have swung on the gallows for murder to be convicted of manslaughter. In 1957, when the death penalty was still in place, provocation was defined in statute in these terms: "““Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man””." Case law developed the concept that the reasonable man with whom the defendant is to be compared should be taken to be of the same age and sex as the defendant and should share any particular peculiarities from which he suffers—for example, his stature, colour, ethnicity and so on. Since the death penalty was replaced by the mandatory life sentence, the practical effect of the defence today is in sentencing. If a man or woman is found to have committed murder, the jury may reduce what would otherwise be a verdict of murder to manslaughter by reason of provocation. That makes it possible for the judge to sentence the defendant in his discretion to anything from life imprisonment to an absolute discharge. Indeed, I once prosecuted in a case where a woman who had killed her husband by driving a hammer through his head when he was asleep received an absolute discharge by reason of the way in which she had been treated by her husband shortly before she killed him 25 years before the body was found. However, life imprisonment is not an unusual or uncommon sentence. Provocation raises many difficulties. In one appeal from Hong Kong, I represented a defendant who killed a young woman who had taunted him. The defendant had suffered brain damage as a child and therefore the question arose whether he should be compared for what he did with a reasonable man in full possession of his faculties or with a person who had suffered brain damage. The Privy Council held that that comparison should not be made but the Court of Appeal in England and Wales, which normally follows the Privy Council, disagreed and refused to follow that decision. Therefore, the law, which was always unsatisfactory, became even more so, to the point that in 2005 the Law Lords sat, unusually, in a panel of nine in the Privy Council on an appeal from Jersey in the case of Holley. They attempted to bring some rationality into this area. The noble and learned Lord, Lord Nicholls of Birkenhead, giving the judgment of the majority, concluded: "““I should not like to leave this case without registering my strong agreement with both the majority and minority that the law of homicide needs comprehensive and fundamental reform. It is a patchwork of rules which makes coherent direction of juries unnecessarily difficult and reflects no credit on our legal system. Judges are bound to apply the law as it is, but that does not prevent one from reminding the world at large and the legislature in particular, that there is a real risk that the present law, containing as it does so many difficulties in its application, may cause injustice in individual cases, even where it is faithfully and correctly communicated to a jury. I do not propose to dilate ""upon the alternatives, a unified offence of unlawful killing or permitting the jury to return a verdict of murder with mitigating circumstances, allied with the abolition of the mandatory death penalty. They do exist, however, and the adoption of one or other would simplify the law, removing the need for the extended discussion of the minutiae of provocation and the differences of opinion among judges. The latter I genuinely regret, but as the law stands I must join the dissent””." Provocation is a mess. The Law Commission, led by Professor Jeremy Horder, reported in November 2006. In its report, Murder, Manslaughter and Infanticide, following extensive consultation with a wide range of bodies, the commission said that, "““partial defences remain misleading, out-of-date, unfit for purpose, or all of these””." The Government have not followed its recommendations for wholesale reform of the law relating to homicide into a three-tier system. By this Bill, they have simply tinkered with the existing unsatisfactory law. They seek to introduce changes to the existing partial defences of diminished responsibility and provocation. They have totally undermined the coherence of the Law Commission’s proposals in a way that can only bring further chaos and difficulty in this field. The Law Commission never considered, let alone recommended in its report, that the jury should be barred, on a defence of provocation, from considering any circumstances arising on the facts of the case, but Ministers floated the entirely novel idea of excluding sexual infidelity as an ingredient of provocation. In a memorandum submitted at the Committee stage of this Bill in the Commons, Professor Horder, the law commissioner, who was appointed to look at the whole law of murder, commented on this sexual fidelity clause. The memorandum states: "““One of the difficulties about being ‘absolutist’ in this area is that one prevents the jury hearing rare, meritorious cases ... Can the jury not be left to filter out unmeritorious cases by deciding for itself in a loss of self-control case simply whether 42(4) and 41(1)(c) are satisfied?””." That is the provision that we took out on Report. The memorandum continues: "““Even if that 42(6)(c) is left in, on the face of it, the wording is, with respect, bizarre. In what circumstances can a thing ‘said’ in itself ‘constitute’ sexual infidelity, and is that what is really being aimed at?””." Professor Horder continued: "““I am sure that I will not be the only person to remark that the focus on sexual ‘infidelity’ is curious; even, paradoxically, old-fashioned. Does it cover unmarried relationships where there is no duty, in law, of fidelity? More seriously, is what is really being got at here sexual jealousy and envy, not ‘infidelity’? If so, why not say so?””." That was the swingeing criticism of the expert in this field on the effect of the clause. It is ““bizarre””; your Lordships are being invited to put back into the Bill something that is bizarre. In this House, the noble and learned Lord, Lord Lloyd of Berwick, supported by us, introduced a new clause and substitution for all the Government’s clauses in question. His amendment was drafted by Professor John Spencer of the Faculty of Law at Cambridge University, who is an outstanding specialist in criminal law, as I am sure all lawyers would agree. The purpose of the amendment was to abolish provocation altogether but to permit a jury, if it thought fit and subject to safeguards, to add a rider to its verdict of guilty of murder a statement of mitigating circumstances, which would permit the judge to pass a sentence other than the mandatory life sentence. In other words, the amendment adopted one of the suggestions made by the noble and learned Lord, Lord Nicholls of Birkenhead, in the case that I quoted. That was defeated. An hour later, the noble and learned Lord, Lord Lloyd, again supported by us, called a Division to exclude all these tinkering changes with the law of provocation. The final amendment, moved by me, was to remove the bizarre subsection. When that provision went back to the House of Commons, the Minister, the honourable Claire Ward, made the most basic error of reversing the burden of proof. That is fundamental, but she suggested that it lay on the defendant. She argued for this principle: whether the House believes that when a person commits sexual infidelity they in some sense bring upon their own death at the hands of their partner, husband or wife. That sentiment is echoed in a letter circulated today by the right honourable Harriet Harman, who says: "““The defence [of provocation] is profoundly objectionable””." I agree that it is profoundly objectionable, but not for the reasons that she gives. She says: "““It blames the victim for their own death. It allows the defendant to shirk responsibility for their own actions and, most importantly, it institutionalises the culture of excuses””." That is just nonsensical rhetoric in an area of law of great sensitivity that must be very carefully drafted. I note that Vera Baird, QC, the Solicitor-General, who knows her way around the Old Bailey as a skilled criminal practitioner, has taken no part in this debate at any stage. Ms Harman adds to her letter, which some of your Lordships will have seen, that it contaminates the issue around lesser offences if for the more serious offence of murder you can use this excuse to reduce the charge. This ignores the most basic point, which any student would know and would grasp in their first year, that provocation is a partial defence only to the charge of murder, for the reasons that I have given; to enable the defendant to escape the gallows if the jury thinks fit in all the circumstances. Neither the Government nor Justice for Women, which gave evidence to the Commons Committee, can produce a single instance of a jury in modern times making a finding of provocation in favour of a male defendant who has killed his wife or partner simply by reason of her infidelity. In Humes, a case in 2002, the defendant had stabbed his wife repeatedly in front of their four children, who were aged 14 to seven, and there were no other witnesses. It is reasonable to assume that the prosecutor took the view that it was in the public interest to accept that plea to the lesser offence, rather than to call the children and during the trial to relive the experience of seeing the death of their mother. That was no doubt a rather compassionate view. The judge who sentenced the defendant to seven years, Sir William Gage, headed the recent working party on sentencing, of which I was briefly a member, and on whose report the sentencing provisions in this Bill are based. The Attorney-General appealed that sentence to the Court of Appeal as being too lenient, but the Court of Appeal upheld the trial judge. That is the only case that Justice for Women can cite where there was a killing by reason of pure infidelity. And I, after, I regret to say, some 50 years in the criminal courts, cannot recollect a single case in which a jury accepted that a male defendant could rely on the partial defence of provocation based simply on his wife or partner being unfaithful. There was a case two weeks ago, called Sinclair, in which the jury brought in a verdict of manslaughter but on the grounds of diminished responsibility. In other words, the jury found that the defendant was suffering from a recognised mental condition which had seriously diminished his responsibility for what he did. It was not the defence of provocation. But the proponents of this subsection seem to have forgotten that provocation is a defence open also to the woman who kills her husband or partner. Professor Horder points to a hypothetical example. Suppose a woman kills her husband because he has secretly impregnated her three daughters by an earlier marriage, or her sister, or maybe even her mother. Under the Government’s proposals, she would be guilty of murder and would be subject to a mandatory life sentence no matter how great the insult and the breach of trust to her had been by that. I would also suggest a situation in which a woman killed her husband who had imported his mistress into the matrimonial bed and treated his wife as a servant. She could argue provocation on the basis of being treated as a skivvy by her husband, but she would not be able to rely on the insult of the sex going on beside her every night. And what about the woman who suffers neglect or violence at the hands of her husband over a period of years but who finally takes up the hammer or the meat knife when she sees him having sex with her best friend? That is the last trigger. She sees him being unfaithful, but she has had a terrible life up to that point. Must the jury ignore the most proximate insult, the cause of her attack—namely, her seeing sexual infidelity in her husband—and simply consider provocation on the basis of the treatment of her over a period of years leading up to that point? How do you expect the jury to disentangle one set of circumstances from another? Murder cases throw up an infinite variety of factual situations. I prosecuted a case in which a young man threw a bird bath through the bedroom window, jumped in, slaughtered his former girlfriend and her lover, mutilated them and then, at trial, argued diminished responsibility. He was unsuccessful, so he went to the Court of Appeal and said that the judge should have said it was provocation. We then had a second trial, and again the jury found murder in those circumstances, as you would rightly expect. Supposing a husband kills his wife and her lover on learning of her infidelity? Under this clause, he could argue provocation in respect of the lover, who is in no way being unfaithful to him, but not in respect of his wife. There are all sorts of difficulties about this bizarre subsection. The Government have argued that their proposal would send a message to the country at large that women are not the property of men. That no doubt is why Professor Horder thought it so curiously old-fashioned. Is it really to be supposed that a man who held that belief and killed his wife would find sympathy with a jury of 12 citizens today? It is fanciful to suppose that a defendant in those circumstances could find 12 people who agreed with him that women were his property. Domestic violence is a daily issue in all the newspapers, of which no juror can be unaware. A jury is, in practice, a balanced cross-section of a local community. It is much more balanced than Parliament in its composition, whether by gender, ethnic diversity, social class or indeed intellectual and emotional abilities. It is the experience of all of us who practise in the courts that the jury reflects contemporary values, because it is such a cross-section of the community. Miss Claire Ward in another place said that the Government are determined to ensure that the law keeps pace with the times, but that is exactly what a jury does—it keeps pace with the times and reflects the current values of the people. One therefore has to wonder why this Government have constantly demonstrated their unwillingness to trust such an essentially democratic institution. I have wearied your Lordships long enough with my attack on this—