Ms Vera Baird (Redcar, Labour)

I beg to move, That the clause be read a Second time.

The new clause would redefine the defence of provocation and the matters concerning some 100 men a year who kill in the course of domestic violence and around 30 women a year who kill their violent partners. Many of the men and women who are charged with such killings run the defence of provocation to try to prevent themselves from being convicted of murder and to ensure that they face only a manslaughter charge, freeing them from a life sentence.

In the defence of provocation, the defendant says that the killing was done only because of a sudden, temporary loss of self-control provoked by something the victim did or said, and that it happened in circumstances in which a reasonable person would have reacted in exactly the same way. The point of that defence is that although the defendant has killed, his blameworthiness for over-reacting is mitigated by the provocation from the victim. In the first instance, the defence required that the provocative conduct should be wrong, because if the killing is mitigated, it does not make sense if the provocative conduct was something that a victim was entitled to do. However, the provision that it has to be wrong conduct has died away. One man was acquitted of murder and convicted only of manslaughter by provocation when he claimed that a baby crying provoked him.

In recent years, there have been domestic violence cases in which women have been killed and men have said that they were provoked to lose their self-control when the woman nagged. For one man, the final provocation was the way in which the woman moved the mustard pot across the table. In another case, a defence of provocation succeeded where a man had killed his wife because she told him that she was thinking of leaving him to go off with her gym trainer.

We have to remember that there are two parts to the defence of provocation: a person has to show not only that they lost their self-control because they were provoked, but that a reasonable person might have reacted in the same way. Surely, killing a partner for moving a mustard pot is not the behaviour of a reasonable person.

How did it come about that men have been acquitted of murder for that kind of killing? The culprit is the House of Lords—not the legislative, but the judicial body—in the case of R v. Morgan Smith in 2000. It said that when considering whether a reasonable person might have reacted to provocation as the defendant did, one should take into account all the characteristics of the defendant. There is a spark of sense in that; if one were considering a 15 year-old who lost his self-control, it would be very hard to judge him by the standard of a reasonable person who was fully

mature. Obviously, self-control is more easily lost by a 15 year-old, so one would have to attribute the defendant's age to the reasonable person when checking whether his response had been reasonable.

However, the Morgan Smith judgment said that one had to attribute all the defendant's characteristics to the reasonable person, which would include any characteristics that might lower his standards of self-control. When considering that second test, one had to consider a person's alcoholism or bad temper, and attribute those characteristics to the reasonable person when asking whether such a person would have reacted as the defendant did to the provocation.

If one attributes all the bad characteristics of the defendant to the reasonable person, the defendant is changed into the reasonable person and there is no second question to ask. The question is whether the defendant lost his self-control and whether that happened because of something that the woman said or did, whether right or wrong. That is all that is left as the test to decide whether somebody should be convicted of murder or manslaughter in such situations.

We are concerned here with domestic violence killings, and women also kill men in domestic violence situations. However, it is clear from experience and well recorded data that, typically, a man kills in a domestic violence situation from anger and sexual jealousy and a woman kills because she has been attacked yet again and battered before, and her not having done so from anger does not really fit the sudden loss of self control model of provocation.

Usually, the woman is under attack and she runs away, usually into the kitchen. She turns around as the man comes at her, sees something to defend herself with and stabs him with a kitchen knife. That is the usual thing. There is no defence of killing out of fear and despair that accommodates battered women as provocation accommodates men who kill out of anger. One might think that running into the kitchen, turning around when under attack and killing would be self-defence, but self-defence has to be proportionate to the scale of the attack to be a defence. If the woman is attacked only with a fist or boot and takes a knife and kills her attacker, the jury will not say that that is proportionate and will not acquit her on self-defence.

Disproportionate self-defence—self-defence that goes too far—sustains a conviction for murder, not manslaughter. So if I overreact to provocation in an angry way, as men do, I will be convicted only of manslaughter, but if I overreact to an attack and go too far in self-defence, I will be convicted of murder.

Women who kill by striking back after running from an attack are now defended on two bases. First, the defence can argue that because of her fear, the killing was done in proportionate self-defence. However, she will then fall back on to all that is available—provocation. She must say that she underwent a sudden and temporary loss of self-control because of the provocation of the attack on her and that she lashed out in circumstances in which a reasonable person would have done the same. The trouble is that self-defence—the first defence that

anyone would run—must be proportionate, which suggests control and measurement in the riposte of force, but that provocation is about a sudden and temporary loss of self-control and striking out, which is a disproportionate act. The two are inconsistent.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

Is not the nub of the problem that there is no such thing as proportionate self-defence that reduces murder to manslaughter? I have always seen that as the real mischief. Surely, the truth is that a person often has a legitimate ground to engage in self-defence, but oversteps the mark and faces the full force of the law.

Ms Vera Baird (Redcar, Labour)

Yes. I believe that I have said that already. It is odd that if someone overreacts to provocation, they are convicted only of manslaughter, but if they overreact to an attack on them and go too far in self-defence, they are convicted of murder. There is no doubt that that is inconsistent.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton & Frome, Liberal Democrat)

Is there not a further complication in British law: the mandatory sentence for murder? If we took a different view of the appropriateness of the mandatory sentence, we might not need those partial defences and someone could be sentenced appropriately for unlawful killing—murder—taking account of the circumstances.

Ms Vera Baird (Redcar, Labour)

Of course there is a major issue surrounding the survival of the mandatory life sentence and whether it is desirable. There are arguments both ways. One is that it is better for a jury to decide culpability by having a sequence of offences into which it is possible to set the conduct of the offences rather than just saying that killing is killing and leaving the matter to a professional judge, but there are arguments the other way. There is no doubt that the hon. Members for Beaconsfield and for Somerton and Frome have put their fingers on difficulties. The difficulty raised by the hon. Member for Beaconsfield would be dealt with by the proposal.

To return to my battered woman who has turned on her husband, she is now in the position of having said that her response was proportionate and measured, but is thrown back to saying that it was disproportionate and unmeasured because she lost her self-control through provocation. Both those defences often fail catastrophically because they are inconsistent, and the woman is convicted of murder in the absence of any other port of call for the jury. The jury can often see that provocation did not apply and that she did not suddenly lose her self-control and strike out like the man whose wife moved the mustard pot. She was frightened and overreacted out of fear, but that is no defence at all.

The position in the two stories that I have told of the two kinds of domestic violence murder is that, at the moment, violent men who lose their self-control get away with murder and battered women get convicted of murder. The Government are well aware of the problem, which is about treating gendered and different reactions equally. The Government asked the Law Commission to report

with dispatch with a view to changing the law on provocation in the Bill wherein the domestic violence aspect conveniently lies. The Law Commission has made proposals to improve the provocation defence not only for domestic violence cases, but across the board. Those proposals were well received by most of the senior judiciary, academics, the Fawcett Society, Justice for Women, Rights of Women, Southall Black Sisters and Women's Aid—in short, by all the organisations representing both victims of domestic violence who have been killed and those who defend battered women who have killed.

Briefly, under the proposal murder would be cut to manslaughter considering provocation only if the defendant acted in response to gross provocation—a much higher test—that caused the defendant to have a justifiable sense of being seriously wronged. That means that the original requirement that the provocative behaviour had to be wrong behaviour is restored. The jury, not the individual, would decide whether the defendant had a justifiable sense of wrong, but the two changes mean that the mustard pot is out as provocative conduct. It must be something that is completely wrong, not something that the individual feels might mitigate his loss of control.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I agree that the mustard pot is an extreme example. My recollection of that case might be at fault, but I seem to recollect that there was a long history preceding the moving of the mustard pot of all sorts of acts that involved domestic violence in certain instances, which had been treated with complete forbearance by the assailant, who snapped over the moving of the mustard pot. That was why the defence was run in that way. One must be careful about the facts of what constitutes the final break in the provocation if a long history can explain why something that appears to be totally trivial—to any reasonable person, extraordinarily so—is nevertheless properly the foundations of such a defence.

Ms Vera Baird (Redcar, Labour)

I do not know whether the hon. Gentleman is right about those facts. I would be pretty satisfied that it is likely that over the years there was more to it than the mustard pot but, under this new provision, that individual would have to show that what had happened, whether or not it was on the same occasion as the cruet incident, was gross provocation. That is a much better test than something as small as that and the other examples that I gave.

Those are the two first changes that would restore provocation to where it was in the first place—at a high level before anybody, even partly, is justified in losing their temper and striking out, and only if the conduct was wrong, as considered by the jury. The second test—whether a reasonable person would have reacted to gross provocation in the same way—is also restored. Although it is still necessary to impute the defendant's characteristics to the reasonable person, one does not impute to the reasonable person any characteristics of the defendant that operate only to lower the defendant's self-control. There would therefore be no bad-tempered and alcoholic reasonable person. There would be a proper check of whether the behaviour of the individual in question

was reasonable according to the ordinary standard of self-control to which we are all accustomed.

That is how provocation would be rejigged. On the other hand, the provision would help battered women who kill because manslaughter, not murder, would be the offence if the killing had been carried out in fear of serious violence. That would include the woman in a kitchen who over-reacts and cannot merely call it self-defence in a balanced way, but who acted out of fear of serious violence and in so doing went beyond self-defence. It is, in a sense, disproportionate self-defence: as the hon. Member for Beaconsfield said, the new clause would introduce a missing link in available defences.

Consequently, a man or a woman justifiably feeling that they had been seriously wronged who killed when somebody with ordinary self-control would also have been driven to killing would have a defence. A woman or a man killing under serious fear of violence would for the first time have a defence that would allow them to be convicted only of manslaughter. That recognises both gender's reactions and treats them equally. It would redress the imbalance that has emerged from the recent atrophy of the provocation defence, which has given rise to injustices. Academics are satisfied that it would improve the law that deals with domestic violence killings of both kinds and, more importantly, it would improve the law of provocation consistently across the board.

The real point is that the examples of injustice that I have pointed out make it quite clear that such injustices are occurring daily. There are about 150 domestic violence killings of one kind or another each year. It is important to change the law soon. We now have a perfect model, or as good as dammit, brought about by a request from the Government to the Law Commission, which carried out a quick but thorough wide consultation and produced draft proposals and is now perfecting them as per the draft. The model is there for the taking as requested by the Government, it is in new clause 22 and I would like the Government to take it.

Mr David Heath (Shadow Minister (Home Affairs), Home Affairs; Somerton & Frome, Liberal Democrat)

I am pleased that the hon. and learned Lady has had the opportunity to table this proposal for debate. My only regret is that I may not hear the Minister's response, because I fear that I may be heading back to Edinburgh to continue my parliamentary duties before he gets a chance to respond. However, I want to make a very short speech, if I may.

First, there is clearly an issue about the law. It is commonly held that there is a difficulty in the law of provocation, and there is an equal difficulty in finding the solution to it. I commend the Law Commission's work, because I think that it has done an extraordinarily good job in a very short time.

Secondly, the Law Commission identified a difficulty, and it put it far better than I could. The fact is that the present law is unsatisfactory. On the one hand, it is too broad. In the commission's own words:

''It is morally offensive to regard as 'provocation' conduct by a victim which in truth calls for society's protection''

and it gives the examples of

''the crying baby, the court official seeking to enforce a court order, or a person in an unhappy relationship who is seeking to leave.''

However, it goes on to say that the law is also too narrow and:

''It affords (at least if strictly enforced) no defence to a person in an abusive relationship who acts in genuine fear of serious violence, unless the danger is imminent or they are acting under sudden and immediate loss of self-control.''

Those are precisely the points made by the hon. and learned Member for Redcar.

As I said when I intervened, I think that a lot of the problems stem from our mandatory sentence for murder. That is something that no one is ever prepared to consider seriously because they say, quite rightly, that murder is a uniquely culpable crime. Nevertheless, they are not prepared to take into account that that crime can be committed in hugely varying circumstances. A court does not have discretion in sentencing at the moment. That seems to be the problem, because it means that we have to have slightly artificial concepts in order to provide for the circumstances surrounding the commission of an act of murder so that a court can take proper account of those circumstances.

In the absence of removal of the mandatory sentence and therefore the avoidance of the necessity of the provocation defence, we have a proposal from the Law Commission that I think has a lot of merit. The hon. and learned Lady will agree that what has been tabled is more of a description of what the Law Commission intends rather than something in statutory form. The commission would readily recognise that as well. The measure needs refinement before it can be entered into statute, but the most important thing is to hear from the Government whether they are entertaining the idea behind it. Did they ask the Law Commission to do the work and propose to take notice of what it said, or is it aborted work to some extent?

The hon. and learned Lady has done a great service to the Committee in introducing this measure. I shall listen carefully to other contributions and the Minister's response, and I hope that we shall have the opportunity to debate the matter more fully on the Floor of the House.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I, too, welcome the hon. and learned Lady's decision to table the new clause for our consideration, and I look forward to an early opportunity—once the Law Commission's perfected report is available—for us to consider what I hope will be a short piece of legislation to introduce changes to the statute book.

I share the hon. and learned Lady's commitment to trying to achieve a change to the present law. Considering what has been introduced, some of the areas that she touched on do not appear to me to be quite as straightforward as the interpretation she placed upon them. I shall identify three areas that we can consider later—I suspect that we shall not deal with the matter today.

First, I share her concern that provocation may be used as a catch-all excuse to get men who murder women off the hook of a murder charge. However, when changing the law of provocation we need to be careful not to exclude a situation such as the example I gave earlier of long, persistent, emotional abuse—and sometimes physical abuse—ending with what can appear to be a trivial incident from the equation of changing a charge of murder to manslaughter. There are circumstances where such a history ought to provide a defence.

The hon. and learned Lady raised an example relating to women being killed by men—it can apply the other way around, and I think that she accepts that—where a woman has a fear of persistent violence and therefore acts to protect herself. Equally, I suggest that there may be instances where the emotionally put-upon partner, who is dominated and abused over a long period, snaps because of something quite trivial. In those circumstances, I am not persuaded that they should be deprived of the opportunity to use the defence of provocation if they can show that something is the end product of an accumulation of events, not a trivial or minor event that could not sustain that defence on its own. It is an area on which I have an open mind, but it we shall have to consider the matter carefully when we come to legislate.

My second point relating to the question of the woman's defence, as it was put by the hon. and learned Lady, concerns the fear of serious violence towards the defendant or another. I have a great deal of sympathy with what she said, but I reiterate that part of the problem in this area is the lack of recognition under English law of excessive self-defence without provocation as a partial defence to a murder charge. That has always troubled me. The classic example falls right outside the category of domestic violence: the Martin case. We eventually got a manslaughter conviction on the basis of diminished responsibility when it seemed to me that there ought to be have been an opening for manslaughter conviction on the basis of excessive self-defence that fell short of murder. That is an example of how the Court of Appeal found a way round the problem. It is another area that we must consider.

Although I am extremely sympathetic to the change that the hon. and learned Lady has proposed, I do not think that this Bill is the place to do justice to what would be an important change to the law. In any event, it is clear that the other place, where the Bill was initiated, is in no position to do justice to any amendment that we might pass here. For those reasons, I feel that it must be put off for another day.

I have no idea what the Government's future programme is, nor do I know at what stage they are going to hit the buffers of another general election. However, the Minister would certainly have the Conservatives' co-operation if the Government chose to introduce a Bill to change the law on murder, along the lines of the preliminary report of the Law Commission. I have an open mind as to how we might go about that and what the final details would

be. It would need a lot of vigorous debate and careful scrutiny. I am grateful to the hon. and learned Lady for having raised the issue and I would like to be able to pursue it. However, that will take longer than we have now.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

Like others who have spoken, I am indebted to my hon. and learned Friend the Member for Redcar for tabling the new clause and speaking to it so ably.

My hon. and learned Friend, I and one or two others were involved in a similar debate a few days ago. It is important that the attention of the House is drawn to the issues that she has described. She will know that the Government fully share her concerns about the way in which the law on homicide currently operates in relation to domestic violence cases. In particular, we understand her 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 for 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, as she so eloquently explained.

Of course, sexual jealousy, however much it might enrage the person who suffers from it, should never be accepted as a justification for killing someone, and neither should infidelity be an excuse for taking someone's life, however devastating it might be for the individual affected. There is also a deep worry that current sentencing in relation to manslaughter by reason of provocation in cases of domestic violence homicide does not adequately reflect their seriousness and the loss of life involved.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

I hope that the Minister will not consider this a flippant intervention, but I am interested in his comment that sexual jealousy can never justify homicide. Of course it cannot do so, but in many other European jurisdictions, it is defined as a crime of passion and attracts reduced sentences.

Mr Paul Goggins (Parliamentary Under-Secretary, Home Office; Wythenshawe & Sale East, Labour)

Yes, and that is not something that this House would agree with. None the less, I am grateful, as ever, for the hon. Gentleman's contribution.

I want to consider briefly what the Law Commission proposes in the wider context of homicide. I can say to my hon. and learned Friend and to the whole Committee that, at first glance, the proposals have some attractive features. They would, however, represent a major change in the way in which the law works. Currently, provocation provides an excuse for homicide—an offender who has killed can be partially excused because he lost control. Under the Law Commission's proposal, the killing would be deemed partially justified in certain circumstances, as described in my hon. and learned Friend's new clause. That is a significant change that could have far-reaching ramifications. We need to consider carefully how the proposal would work in practice not only in the context of domestic violence, but in other circumstances. For example, it could be argued

that some gangland killers would meet the criteria set out in the new clause.

We need more time to think through the full implications of the proposals; it would be dangerous to adopt such a major change too quickly. I appreciate my hon. and learned Friend's desire for stronger legislation and greater protection for victims of domestic violence. The Government share that view, but we think that it makes sense to await the Law Commission's final report. We will, of course, think carefully about its recommendations before we consider taking legislative action. We need to check all the intended consequences of the proposed changes and to identify any unintended consequences. I warmly welcome the positive indications from both Opposition Front-Bench spokespeople that they would constructively engage with the Government if we were in a position to advance proposals for legislation on this matter.

The Law Commission is still working on its final report. Several groups have strongly welcomed its proposals, although areas of particular concern have also been identified. We must ensure that the Law Commission has the time to complete its work and to analyse all the responses. Its thorough analysis will be crucial in helping us to clarify our understanding of the issues involved. We need a solution that strengthens protection, commands public confidence and works in practice. We have a process in train and we will be better served in the long run by taking a little more time to get things right rather than attempting a partial solution that may give rise to further questions and difficulties in the future.

In that spirit, I urge my hon. and learned Friend to seek to withdraw the motion.

Ms Vera Baird (Redcar, Labour)

I am grateful to the hon. Member for Somerton and Frome, who is not in his place—I accept that he cannot be there—for acknowledging that the new clause is a serious and successful attempt by the Law Commission to meet the twin problems that domestic violence killings throw up. I sympathise with his approach to the mandatory life sentence and the need for us all to consider that seriously in due course.

The hon. Member for Beaconsfield made two points—I accept that they are probably not the only ones that he could have made—about whether the provision is capable of providing for a last-straw, relatively small incident against a background of smaller incidents that have built a person up to such a crescendo that they snap, as he put it. I am assured that the proposals embodied in the new clause will not change and that the consultation is almost complete, the drafting of the final report is on its way and there will be no significant change. That is very clear from the Law Commission's provisional consultation and current report, and I entirely accept that the new clause has been picked from a section of its report that was put into bold type to set out the principles that the new clause embodies, and that it is not a model section and no doubt would have merited the attention of a parliamentary draftsperson.

I understand that the proposals will not change. They are intended to cope with a long abusive relationship and the last-straw break in self-control. It is significant for the issue that has been raised by the hon. Gentleman that the words ''sudden'' and ''temporary'' have disappeared. Originally, provocation required a sudden and temporary loss of self-control, which implied a sort of snapping. It used to be down to the work of a large amount of case law to count what had happened back to earlier provocation that had contributed to the build-up. The words ''sudden'' and ''temporary'' have now gone, so the picture is clearly opened up to whatever gross provocation there was, whether it happened today, yesterday or earlier. The hon. Gentleman therefore does not need to worry very much about that.

The hon. Gentleman said that he had always thought it a lack that there was no defence of excessive self-defence that reduced murder to manslaughter. In effect, I do not see a significant difference between excessive self-defence and the limit of the defence of fear of serious violence, if that was the motive, which reduces the charge to manslaughter. The jury will have to consider first whether what happened was self-defence and, secondly, if it went too far to be self-defence, whether it was caused by a fear of serious violence. If so, the offence would be manslaughter only. That seems to me to be excessive self-defence.

Mr Dominic Grieve (Shadow Attorney General, Home, Constitutional & Legal Affairs; Beaconsfield, Conservative)

The hon. and learned Lady may be right. One of my difficulties is that I have not been able to give the matter the time and attention that it deserves. I have read the Law Commission's report and her new clause, but we must examine the new clause literally word by word and work out the various possibilities and permutations that flow from it.

Ms Vera Baird (Redcar, Labour)

With that, I turn to the comments of my hon. Friend the Minister. I have heard them before, as he has heard my remarks before, in an Adjournment debate, but there we are; they are no worse for repetition. I was puzzled then, as I am now, about why he thinks that there is a move from an excusatory model to a justificatory model. As I understand it, both are both. The justification is the provocative conduct and the excusatory aspect is that the person lost their self-control. Both elements are present in the old model and the new model; there is no change.

The Minister is not alone in this view—I think that the Attorney-General shares it—but I have never understood why a gangland killer could plead the defence of fear of serious violence. Such a fear would not, in the view of any sensible jury, qualify as something that caused the defendant to have a justifiable sense of being seriously wronged. The Minister's argument is not tenable once we consider in more detail the extras over and above just the fear of serious violence.

The model is a good one and it will not significantly change. Of course, persuaded by the ever-persuasive Minister, I shall seek to withdraw the motion, but we

should return to the new clause as quickly as possible, because injustice is being caused. The new clause is a recipe for remedying that, and all we need is another opportunity to peruse it thoroughly and to embody it in legislation. I hope that that can occur, but at this stage I beg to ask leave to withdraw the motion.

Motion and clause, by leave, withdrawn.