New clause 22 - Definition of manslaughter
Domestic Violence, Crime and Victims Bill [Lords]
4:15 pm
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.