New clause 22 - Definition of manslaughter
Domestic Violence, Crime and Victims Bill [Lords]
4:30 pm
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.