§ Motion made, and Question proposed, That this House do now adjourn.—[Mr. Ainger]
6.59 pm§ Vera Baird (Redcar)Two women a week are killed by violent partners. Thirty men a year are killed by their battered partners. Many of the men and women charged with those killings put up the defence of provocation. If the jury accepts it, they will be convicted only of manslaughter and not of murder. In those circumstances, the punishment is not a mandatory life sentence, but is at the judge's discretion.
The Government are undecided about whether to change the law on provocation imminently. I shall set out what happens under the current law.
In domestic killings, men kill because of anger and sexual jealousy. Women kill because of abuse. I have defended many women over the past decade who have killed their partners, and I have never come across one who has killed from sexual jealousy or anger. The women whom I have defended have killed only after being beaten and abused, sometimes for years.
In the defence of provocation, the defendant says that the killing was done during a sudden and temporary loss of self-control caused by things said or done by the victim, and in circumstances in which a reasonable person might have reacted as the defendant did.
The point of the defence is that although the defendant has killed, his blameworthiness for overreacting is mitigated by the provocation from the victim. Originally, the defence required the provocative conduct to be wrong. The philosophy behind provocation—that its presence reduces the blameworthiness of killing—would not make sense if a victim did only what she had a right to do, or if she was not wrong to do it.
As long ago as the 19th century, judges thought it a misuse of the defence of provocation to say that a man was provoked to kill when his wife left him. They had a power to withdraw the defence from the jury's consideration when it was levelled against rightful acts, or acts that were not wrong. In such circumstances, the judges did withdraw the defence. Of course a woman has a right to leave a man if she does not want to live with him. He can divorce her but he cannot kill her, unless he wants to be convicted of murder.
However, in this century the requirement that the provocation must be wrong in some way has disappeared. One man was acquitted of murder when he claimed that he had been provoked to kill by a baby crying.
In recent years, there have been cases in which women have been killed and men have said that they were provoked to lose their self-control by nagging. For one man, the final provocation was the way that the woman moved the mustard pot across the table. In a case in Leeds, the defence of provocation was successful in a case in which a man had killed his wife not because she had left him but because she had told him that she was thinking of leaving him and going to live with her gym trainer.
We must remember that there are two parts to the defence of provocation. It does not work unless, in addition to showing provocative conduct, the defendant 258 shows that a reasonable person might have reacted to that conduct as the defendant did. Surely killing a partner for moving the mustard pot in a certain way and saying that she fancies her gym teacher is not the reaction of a reasonable person, so how did it come about that these men were acquitted?
The culprit is the House of Lords. In the case of Morgan James Smith in 2000, the Lords said that, when considering whether a reasonable person might have reacted to the provocation as the defendant did, all the characteristics of the defendant must be taken into account. Clearly, to be fair, one must consider whether a reasonable person of the same age might have reacted in the same way, as self-control goes with maturity. However, in the Smith case it was stated that all the defendant's characteristics have to be taken into account, including any that might lower his standards of self-control below the ordinary.
For that reason, a defendant's bad temper and alcoholism are his characteristics and must be taken into account when consideration is given to whether any reasonable person would have done as he did. Therefore, one is supposed to impute the fine characteristics of the reasonable person, and then ask whether a reasonable person who is bad tempered and alcoholic might have behaved as the defendant did.
However, if one imputes the defendant's characteristics to the reasonable person, the reasonable person turns into the defendant. Therefore, the question of whether a reasonable person—who has now become the defendant—might have reacted as the defendant did is meaningless, as there is no second requirement. At present, there is no need for conduct to be wrong to be called provocation, trivial behaviour cannot be withdrawn from the jury by the judge, and there is no second requirement at all. Add it all together and the only question left for the jury in a provocation defence is whether he lost his self-control because of something she did. If so, he has a defence. That is hopeless. It offers no protection or rational basis for jury decisions. In addition, what does it say to her children or parents if the state says that his blame is less and she bears responsibility for her own killing because she moved the mustard pot?
The typical killing by a battered woman is not from anger and does not fit the sudden and temporary loss of self-control model of provocation. Almost all such killings take place when she is under attack. She flees into the kitchen, he comes after her, she seizes a knife, she turns and she stabs him once. There is no defence of killing out of fear or despair that accommodates battered women in the way that provocation and killing out of anger accommodates men. However, there is far more emotional and psychological stress to justify a finding of less blameworthiness if someone kills after long tolerance of harsh wrong treatment, rather than suddenly in anger.
One might think that the run into the kitchen and the turn round under attack is self-defence, but it is excessive. To be a defence, self-defence must be proportionate. If a woman is attacked only with fist or boot and even if the man is stronger and has used violence before, if she takes a weapon, lashes out and kills him, the jury will not acquit her on self-defence. It is excessive. It is disproportionate. Excessive or 259 disproportionate self-defence leads to a conviction for murder, not for manslaughter. If I overreact to provocation, as a man may do, it is manslaughter. If I overreact to being attacked, as a woman may do, it is murder.
Women in court are now defended on two bases. First, the defence tries arguing that the act was proportionate self-defence. Secondly, if that fails, she falls back on the claim that the attack provoked her into a sudden and temporary loss of self-control that would have caused a reasonable person to do as she did and kill. But proportionality in the first defence of self-defence requires measurement and deliberation. The defence of provocation requires a sudden and temporary loss of self-control and a lashing out—an overreaction. It requires that a person has acted disproportionately. The two defences are inconsistent.
Women do not fit the hot-tempered provocation model into which one tries to squeeze them. The jury can see perfectly well that the woman is outside provocation and that she has not killed from anger at a wrong, but in terror and despair at yet another beating. So both defences usually fail, and thus do violent men who lose their self-control get away with murder and battered women get convicted of it. That is unjust. It is also sexist. The Government will introduce a duty on public authorities to promote gender equality, but the courts, which have to implement the current law on provocation and manslaughter, will not be able to comply.
The Government know well that the need to reform the law is urgent and they have asked the Law Commission to consider the issue and make proposals. The Law Commission has done so. I am told by Mr. Justice Toulson that the proposals are unlikely to change and have been well received, with few exceptions, by the judiciary and by academics. I can say that the Fawcett Society, Justice for Women, Rights of Women, Southall Black Sisters, Women's Aid and all the women's lobby groups who deal with the issue are 100 per cent. behind the proposals.
The purpose in asking the Law Commission to look at provocation was to consider legislation, so the terms of reference asked for special attention to domestic violence. However, the Law Commission has worked out a defence for all manslaughter to an outstanding level, which goes much wider than the terms of reference. The calibre of the proposals is very good. Under them, unlawful homicide that would otherwise be murder would be manslaughter if the defendant acted in response to various factors. Change No. 1 is gross provocation, meaning words or conduct—or words and conduct—that caused the defendant to have a justifiable sense of being seriously wronged. That would restore the moral basis for provocation—that the conduct in question must be wrongful. The defendant would have to have legitimate grounds for feeling strongly aggrieved by the conduct of the person. The question of whether that was justifiable would be for the jury, not for the defendant. Gross provocation ups the level of conduct needed to arouse a justifiable sense of grievance. Anything less than gross, anything less than wrongful and the court will be able to withdraw the defence from the jury, because change No. 2 is that the judge will not 260 be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply.
Under change No. 3, homicide that would otherwise be murder would be manslaughter instead if the act was carried out from fear of serious violence, so the woman under attack in the kitchen would not have to pretend that she acted out of loss of self-control; she will be protected if she acted from fear of serious violence. Of course, before the jury looks at that partial defence it will have to look at self-defence, where that has been raised, but if it finds that the defence was disproportionate it will ask whether it was too much because the woman was afraid.
It is a measure of how fair and realistic the report is, and of how commendable it is, that the Royal College of Psychiatrists gave evidence to the Law Commission, challenging the assumption that anger—the male emotion—cannot be a justification for responsive violence, while fear—the female emotion—can be. The RCP pointed out that the two emotions of anger and fear are not distinct and that physiologically anger and fear are identical. Many mental states that accompany killing also incorporate psychologically both anger and fear. Hence the abused woman who kills in response even to an immediate severe threat will be driven at least partly by anger at the years of abuse meted out to her and perhaps to her children.
Change No. 4, homicide that would otherwise be murder, can be reduced to manslaughter by a combination of gross provocation causing a justifiable sense of wrong and fear. Morally, of course, the common element is that it is a response to bad conduct. The person would not kill at all had they not been attacked.
Even if there is gross provocation engendering a justifiable sense of wrong it by no means follows that an ordinary person would have reacted in the way that the defendant did. Most people suffer gross provocation from time to time but they do not kill. The final change is that the defence would be available only if a person of ordinary self-control in the circumstances of the defendant might have reacted in the same or a similar way. That would still take into account all the defendant's characteristics, such as age, but not matters that bear simply on his capacity for self-control—so no more bad temper, no more alcohol.
A man or a woman, seriously wronged. justifiably feeling that they have been seriously wronged and exercising ordinary self-control, but who kills will have that defence. Women, killing under serious fear of violence, will also have that defence. All will become far more equal. The case for change is overwhelming. The Law Commission's proposals are rational, clear, just—not sexist—and fair. They can be put into the Domestic Violence, Crime and Victims Bill through an amendment that has already been tabled, so this is my sole question to my hon. Friend the Minister: why not?
§ The Parliamentary Under-Secretary of State for the Home Department (Paul Goggins)I am grateful to my hon. and learned Friend the Member for Redcar (Vera Baird) for initiating this important debate. To the long list of attributes that we associate with my hon. and 261 learned Friend we can now add stamina, as she and I, as well as the hon. Member for North Down (Lady Hermon) and my hon. Friend the Member for Colne Valley (Kali Mountford), who are also in the Chamber, have been discussing the detail of the Domestic Violence, Crime and Victims Bill since about 10 past nine this morning.
My hon. and learned Friend speaks with great experience and authority on these extremely important issues. As she said, two women are killed every week by a male partner, or former partner. while about 30 men are killed by a female partner, or former partner, each year. Getting the criminal law right is essential to deal justly with such cases and an important part of getting domestic violence fully recognised for the serious offence that it is.
The Government have sought to engage the public on these issues, setting out our proposals in "Safety and Justice", which was published just a year ago in June 2003, and introducing the Domestic Violence, Crime and Victims Bill in this Session of Parliament. It is vital that we get the law right and that we deal with the perpetrators, as well as find and develop practical ways to provide effective help and support for victims.
The Government fully recognise and share the concern about the way in which the law on homicide operates in relation to domestic violence cases. In particular, we understand the concern that recent developments in the law have led to an extension of the scope and availability of the partial defence to murder of provocation well beyond what was envisaged in section 3 of the Homicide Act 1957. Those developments have allowed a subjective test for provocation, based on the defendant's characteristics, rather than the more objective test of what a reasonable reaction to the provocation would be. My hon. and learned Friend outlined very graphically the impact of that on individual families.
Of course sexual jealousy, however much it may enrage the person who suffers from it, should never be seen as a justification for killing someone; nor should infidelity be an excuse for taking someone's life, however devastating it may be. There is also a deep worry that current sentencing in relation to manslaughter by reason of provocation in cases of domestic violence homicides does not adequately reflect their seriousness and the loss of life involved.
The Government agree that the current position on provocation is unsustainable. Indeed, for that reason, we asked the Sentencing Advisory Panel to consider the sentencing issues and the Law Commission to analyse provocation as a partial defence. The Law Commission was the right body to do that. It is eminent in law reform and respected in legal circles and more widely. It has been able to research this issue thoroughly and provide a very detailed legal analysis of the present law and the options for reform.
In addition, the Law Commission has been able to canvass a wide range of views and opinions, consulting extensively across the appropriate groups and individuals. My hon. and learned Friend named some of the organisations, such as Southall Black Sisters, Justice for Women, the Women's Aid Federation of England, 262 Rights of Women and, indeed, the Fawcett Society, in which she plays such a prominent role. All those organisations have provided useful information about the problem. Their insight will be vital in ensuring that we deal with the right issues and find solutions that really work.
This concern is not new. We highlighted our concerns about the law on provocation generally and the particular problem with domestic homicides in the "Safety and Justice" domestic violence consultation paper that I referred to earlier. Indeed, the Domestic Violence, Crime and Victims Bill, currently in Committee, contains important measures to help to tackle the evil that is domestic violence. Those measures include making common assault an arrestable offence; making breach of non-molestation orders a criminal offence; establishing domestic homicide reviews; and strengthening provisions on restraining orders, including making them available on acquittal. All those important changes demonstrate our total commitment to dealing with such crime with all the severity that it properly deserves.
In "Safety and Justice", we identified two strands to the problem with the way that the law on provocation works at present: first, the problem with the way the law has developed since Morgan Smith, to which my hon. and learned Friend referred, and the subjective interpretation of provocation provided by that case; and secondly, the problem with sentencing. It is true that a good part of the problem lies on the sentencing side. There is a large gap in the sentences given in cases of murder and manslaughter. Murder receives a mandatory life sentence, with a starting point of at least 15 years, as established in the Criminal Justice Act 2003. Although manslaughter can attract a discretionary life sentence, sentences in practice are generally of determinate length and, for domestic homicides, will usually attract a sentence of four to eight years' imprisonment.
Under current licence arrangements, the defendant can expect to serve two thirds of such a sentence, so the difference in time actually served can be very large indeed. That puts great weight on the partial defences, because the consequences can be so significant. For that reason, we asked the Sentencing Advisory Panel to examine sentencing when provocation reduces a charge of murder to a conviction for manslaughter, especially when the offence arises in a domestic context. Its analysis, which was published in its consultation paper, shows clearly how wide the sentencing gap is at present. Nevertheless, its proposals would place most cases of manslaughter by provocation—whether or not in a domestic context—in the medium or low ranges of seriousness. That would give starting points of six or two years respectively and would, in practice, do little to address the present sentencing gap.
The next stage for the Sentencing Advisory Panel, following an assessment of the responses to the consultation, will be for it to put proposals to the new Sentencing Guidelines Council, with the final guidelines ultimately coming before Parliament for debate. We are keen for all those with an interest to engage in the process and hope that that will ensure the development of appropriate guidance that reflects both justice and fairness.
263 As regards the partial defence itself and the formulation of the criminal law, we are concerned, as I said, about domestic homicides in which the alleged provocation is due to sexual jealousy or infidelity, for it is in such cases that raising the partial defence often involves an attack on the victim's reputation. We know that that can be extremely traumatic for the family. Understandably, they will perceive that the verdict, or acceptance of a plea, in such circumstances means that the victim was to blame for his or her death. We need to tackle that, so the Law Commission's work could be helpful. My hon. and learned Friend outlined the provisional proposals in detail. They would remove the concept of loss of self-control, so that could no longer form the basis of a defence, and substitute fear of serious violence and words or conduct that caused the defendant to have a justifiable sense of being wronged as the grounds for defence.
Even within the context of domestic violence, however, the proposals have major implications that require careful thought. In particular, the concept of a justifiable sense of being wronged could have unintended implications. Of course, we cannot limit the debate to that context alone. As I said earlier, this area of the law is important in relation to domestic violence, but the importance of provocation goes much wider.
Partial defences to murder, including provocation, provide the boundary line between murder and manslaughter across homicide offences in general, so we need to look at the law for all homicides. Our aim must be to find a balanced solution that will address the differing types of homicide coherently while providing public confidence that the law is fair and right. In such a complex area of the law, the potential for unintended consequences is huge.
I should make it clear that we do not think that the option of a defence only for cases of domestic violence would work. There is no definition of domestic violence in law and, as we have been debating in Committee, there are good reasons for that. For a start, it would be difficult to reach a clearly agreed firm definition. The criminal law must provide certainty about its scope, but how would that work for domestic violence homicides? Violence between partners would clearly be covered, but what about casual relationships between two people who had perhaps met only that day or earlier in the same week? Where would we draw the line? What about child homicides, perhaps following a prolonged period of physical or sexual abuse? There would need to be a convincing reason why people who committed the same basic offence, but in different contexts, would have different defences available to them.
I want to consider briefly what the Law Commission proposes in the wider context of homicide as a whole. Its provisional proposals have some attractive features, but they would represent a major change from the way in 264 which the law works at present. At present, provocation provides an excuse for homicide because although an offender killed, that can be partially excused because he lost control. However, the courts have stretched that to take account of the very different position for women who kill. Under the Law Commission proposal, the killing would be deemed partially justified in certain circumstances, which is a very significant change indeed with far-reaching ramifications. We need to consider how it would work, not just in the domestic violence context, where there could be difficult areas such as "honour" killings, but in other circumstances. For example, it might be possible to argue that some gangland killings meet the criteria. We need to reflect on that major issue of principle and policy in criminal law. It would certainly be irresponsible to adopt such a radical change too quickly. We also have to look with great care at the balance between providing a defence that is subjectively based on the defendant's characteristics and making the defence wholly objectively based. That needs to be debated fully to ensure that we reach a solution that commands public confidence in the rule of law.
The Law Commission is still working on its final report. Its proposals have been strongly welcomed by some groups, although areas of particular concern have also been identified. We must make sure that it has the time to complete its work fully, analyse the responses and take them on board. Moreover, we need to take a comprehensive look at the underlying principles, as this is not an area for quick decisions. The Law Commission's thorough analysis will be crucial in helping us to clarify our understanding of the issues involved. The present law was put in place in 1957, and we need to undertake careful reflection and study the Law Commission's proposals in depth before we set it aside. Given that legislating on provocation is a complex area of law, it clearly makes good sense to await the final report by the Law Commission. We will then look at its recommendations carefully before we consider taking legislative action. We will need to ensure that we have checked the full intended consequences of the proposed changes, and that we have picked up any unintended consequences.
I believe that at this stage it is too early to legislate. We have more work to do if we are to get this important issue right, and we are all too aware of the problems created by rushed legislative change. The Domestic Violence, Crime and Victims Bill is a crucial further step in the Government's determined efforts to deal with the horror of domestic violence. Further development of our thinking on provocation and the changes to the law that may be required should be undertaken with great care to ensure that we get it right.
Question put and agreed to.
Adjourned accordingly at twenty-seven minutes past Seven o'clock.