Coroners and Justice Bill
12:20 pm
Professor Horder: May I start by saying it is a great privilege to be here? I am delighted to be invited to try to give you some assistance on the Bill.
I think you have had my written evidence; I would like to make two main points about the Bill. Clearly, a good deal of it is based on the Law Commission’s recommendations. Unusually, the Law Commission looked at this twice within a short period of time—once in 2004 and then again in 2006. As a result of that, the diminished responsibility provisions, which are in this part, largely follow the Law Commission’s recommendations and those were based on wide consultations, as I indicated. I am not worried about those particularly, although it is possible that others may have some concerns. I want to concentrate, if I may, on provocation; reflection on at least some of the provisions would benefit the changes as a whole.
Perhaps I could just raise this issue of loss of self-control, which I know is a vexed one. I would just like to say a brief word by way of background. Loss of self-control has never been defined as such, in law. It conjures up an image of someone going berserk or something of that kind, completely losing all ability to control themselves, but it has never been as narrow as that. It appeared in the Victorian period, like a lot of “self” words such as “self-restraint”, “self-denial” and so on. Before that time, the law just used phrases like “heat of blood”, and so on. That is important because a lot of cases will involve instances where someone did something—they were affected by the heat of the moment and they allowed it to affect their judgment in some way.
Loss of self-control will be a broad concept—a lot of cases will pass the threshold by being ones where there is evidence of a loss of self-control in that broader sense. It is important to bear that in mind, which brings me to my first point in relation to clause 41(5) which states:
“On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence”
of loss of self-control,
“the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.”
I have a concern about whether that is necessary. The explanatory notes say that it is to clarify the burden of proof, but I do not think there was much ambiguity about the burden of proof and where it lay in provocation cases. I have overplayed my hand a little in my written submission, but the point remains that there is no restriction under clause 41(5) on whose case it may be as to how this evidence is adduced. It could even be the prosecution’s evidence.
One could have a case where an armed officer is charged with murder, that officer wishes to be acquitted on the grounds of self-defence and the prosecution’s case is that the officer lost his or her temper, acted disproportionately and should for that reason be convicted of murder. One of the curious features of the way this clause operates is that, quite conceivably, the prosecution’s case would amount to sufficient evidence adduced to raise an issue and so on. That would mean, according to this, that the jury must assume the defence is satisfied, which means, as a result of subsection (7), that the defendant stands to be found guilty of manslaughter, which is inconsistent with their case as a whole because they want to say that they are not guilty of anything—they claim self-defence.
I am not saying that you cannot get around that, but there is something curious about the way it is set up, and I do not think that that subsection is needed. If you delete it and then you put in subsection (6)—I am sorry if this is a bit detailed— “for the purposes of subsection (1)”, that is, for the purposes of establishing the defence, “sufficient evidence is adduced to raise an issue and so on”, that will pretty much get you where you want to go, without using presumptions and so on.