Clause 41
Coroners and Justice Bill
11:30 am
David Howarth (Cambridge, Liberal Democrat)
We now come to the second part of the defence proposed by the Bill. This time the defence is that of loss of control, which is proposed to replace the existing defence of provocation. My remarks about the relationship between the law of murder and the partial defences apply equally in this regard, and I do not want to go through those arguments again. However, the general structure of the idea is that if one were to reform the law of murder in a more accurate way so that the mandatory life sentence applied to a specific type of case, at that point it would become entirely justifiable to start to narrow the defences that allow a charge of murder to be reduced to one of manslaughter.
[Stephen Hesford in the Chair]
In this particular case, there is an extra complication, which is that the defence of provocation is somewhat dubious in the first place. Most people would get the underlying moral idea of diminished responsibility immediately—that someone was not entirely responsible for their own actions and, therefore, should not be treated in the same way as someone who was fully morally responsible for their actions. That seems to be a clear moral principle, although often difficult to apply in individual cases.
Provocation does not have the same clarity, at least for me, because its starting point seems to be a defence that blames the victim. The idea of provocation is, “He made me do it”—something that the victim did provoked the defendant to carry out the homicide. I do not find the moral base for that as clear as for diminished responsibility. My instinct, always, is that diminished responsibility should be broader and that provocation should perhaps be narrower. The Government are in danger of broadening the whole idea of provocation, making it a much broader defence, for a reason of which I am not entirely sure.
One of the things that the clause does is to remove the idea that the action that somehow caused the defendant to carry out the killing was something to do with the victim. If one talks about loss of control in the context of a justifiable wrong, which is what the clause does, but forgets about who did that justifiable wrong, the provocation has been turned into the kind of defence in which being angry with the world is an excuse to kill someone. I cannot see, morally, how that is the case. As I said, I would prefer the defence of provocation to be as narrow as possible.
There are hard cases, such as that important set about battered wives, which the law struggled to bring within the categories of the provocation defence. It always seemed to me that the way to deal with the problem was to broaden diminished responsibility and not to try and jam those cases into provocation.