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Coroners and Justice Bill

My Lords, I am grateful to noble Lords who have spoken, not least the noble Lord, Lord Thomas of Gresford; although I have to say to him that in his learned speech I was waiting for him to put his amendment, and I waited a long time. He seemed to be opposing root and branch the Government’s amendment, which we are seeking to get back into the Bill, quite understandably given his attitude to it on Report. Then, almost as an afterthought, which did not fit in logically with his opposition to the government amendment, he spoke in a very few minutes, without going into any detail, to his amendment, which in many ways seemed to speak against the principle of opposing any legislation that talked about sexual jealousy or sexual infidelity. With the greatest respect to him, I thought that there was a mismatch between his overall opposition to what we are trying to bring back and the amendment that we are debating. If I may say so, I take his amendment rather more seriously that perhaps he does. I shall argue against it on the grounds that it is, if I may use the expression, a damn good try to sort this out but, when compared to our original clause, it is not quite as good. I shall try to explain why. I do not want to take up too much of the House’s time, as I know that there are other matters that noble Lords are keen to get on to, but I feel obliged to do this. I shall do it in as short a time as I can. In the course of that, I hope I shall answer the proper question asked by the noble Lord, Lord Pannick. We cannot accept the amendment before the House, which was tabled by the noble Lord, Lord Thomas, because it risks ruling out cases where we want defendants to be able to make out the defence and it opens up a loophole that could be abused in the very cases that we are trying to put beyond doubt. We think his amendment is both too narrow and too wide. Take the example of the case mentioned by the noble Lord, Lord Pannick, in which a woman discovers her husband sexually abusing their young daughter. This is the sort of case that both Houses quite rightly sought reassurance about when scrutinising the government clauses. The Liberal Democrat amendment risks excluding such a case. I shall try to explain why. The effect of the amendment is that the defence cannot apply if the defendant acts principally out of a desire to punish the victim for any act, where that act is perceived to amount to sexual infidelity. In this scenario, the defendant may well perceive that the act—the abuse of the child by the father—amounts to sexual infidelity, although this is unlikely of course to be her reason for killing. However, the way that the exclusion is formulated in the amendment means that, once an act is perceived to be infidelity, killing principally in order to punish that act, whatever the motive for killing or whatever else the act may be perceived as, will be excluded. So the mother horrified at the abuse of her child, who may well kill out of a desire to punish her partner for abusing their child, but who also feels hurt by the fact that the father sought sexual gratification elsewhere, would put herself outside the defence on account of the perception of infidelity. That is not something that we would want to happen. By contrast, our approach was extremely carefully tailored after long consideration so as to allow the partial defence to still operate in this situation. Sexual infidelity is involved in this situation, and our clauses require that aspect to be disregarded—that is the word we use—but the defence can still stand or fall on the basis of the other aspects of the situation, namely the fact of the child abuse. The answer to the noble Lord, Lord Pannick, is that the sexual infidelity motive cannot be recognised, but if there are other motives or reasons that constitute circumstances of an extremely grave character under Clause 45(4) and cause the defendant to have a justifiable sense of being seriously wronged, that would allow the defence to be used. Our conclusion, therefore, is that this amendment quite inadvertently, and with the best of intentions, captures cases where we think—and both Houses have sought reassurance from us on this point—the defence ought to apply. Of course it is not the noble Lord’s intention that his amendment should do that but, regrettably, it is the effect. In that case, we think the amendment is too narrow. The Government are also concerned that this amendment covers only those circumstances where the defendant kills to punish the victim for an act of sexual activity or whose motive is otherwise sexual jealousy or envy. Having a list of motives risks creating loopholes where killers can argue that their motive was something else not on the list; for example: fury, shock, embarrassment or betrayal. They are not mentioned in the amendment, so the man or woman who kills having walked in on their partner having an affair could argue that they lost their self-control and killed out of something other than a desire to punish. Focusing on motive inevitably creates these potential gaps. That is why our amendment, which we seek to put back into the Bill, focuses directly on the thing that has triggered the defendant to lose their self-control and to kill. If that thing is sexual infidelity, that fact must be disregarded. Sexual infidelity cannot be relied on as the reason for claiming the partial defence, however the defendant’s motive may be described. I have taken the amendment seriously. It deserves serious consideration, and I know that it was planned with the best of intentions, but I invite noble Lords to take on board our concerns. Given the debate and particularly what my noble friend Lady Gould said, I hope that the noble Lord, Lord Thomas, will not press his amendment to a vote this evening, as in our view it might well make the position even worse. We have had another substantial debate on this matter tonight, and it is now up to the noble Lord to decide what to do with his amendment.