Clause 45 — Meaning of "qualifying trigger"

Part of Bill Presented – in the House of Commons at 7:30 pm on 9 November 2009.

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Photo of David Howarth David Howarth Shadow Secretary of State for Justice 7:30, 9 November 2009

One of the most important aspects of the jury system is that the jury gives no reasons, so we never know the answer to such questions.

I agree with the Government that there is no reason in principle why the legislature should not set the criminal law. It is for Parliament to say what the law should be, and Parliament is perfectly entitled to say that certain excuses should not count. That in itself is not an argument against the Government's position.

Members seem to have missed the point that this part of the Bill already includes another substantive restriction on what can count as a justifiable lack of control. It is contained in clause 44(4), which says that the loss of control defence does not apply where the defendant

"acted in a considered desire for revenge."

Revenge is therefore also excluded in the same way. Perhaps a jury will think otherwise, and consider that there should have been such a defence in the circumstances before it. No one has yet complained that that provision should be removed simply because it interferes with the rights of the jury. I am not entirely convinced by the jury point, therefore. The Government are entitled to propose changes in the substantive law, as long as they admit that in the end these questions of fact will, even in their own version, be decided by a jury.

The third reason was more persuasive. It has been alluded to here, but it was discussed at great length in the other place. It takes us back to the evidence the Law Commission gave to the Public Bill Committee. It is the argument that the drafting of clause 45(6)(c) was defective-or, to borrow a word used by one commissioner, "bizarre". That clause said:

"In determining whether a loss of self control had a qualifying trigger...the fact that a thing done or said constituted sexual infidelity is to be disregarded."

There is an enormous number of things wrong with that formulation. We do not have time to go through them all, but the first thing that is not at all clear is whether it does the job the Government want it to. What is to be disregarded? Is it sexual infidelity? No, the clause does not actually say that. It is merely the fact that something

"done or said constituted sexual infidelity".

In other words, the infidelity itself is not to be disregarded, but merely the mental process going through the head of somebody else, who comes to the conclusion that something constitutes sexual infidelity-that is what is to be disregarded. It is not clear that that is what the Government wanted. Secondly, how can a thing that is said constitute sexual infidelity? What words constitute sexual infidelity? I cannot see how that works.

Thirdly, what counts as sexual infidelity anyway? The Minister's examples show the problem is a difficult one to resolve. She put forward lots of examples of what she claimed was sexual infidelity, although it is not clear whether a jury would agree. What about unmarried couples? What about situations in which the couple disagree about the degree of fidelity that is expected in their relationship? This takes us back to the point the law commissioners made, which is that presumably what the Government meant was something like sexual jealousy or envy, rather than infidelity as such. There are other ways of drafting the clause that get out of at least some of these problems. I do not say that the amendment we offer solves all the problems, but I think it solves at least some of them.

On Report, had we been allowed to debate it, we would have offered an even more comprehensive solution that would have separated out the various problems in this entirely unsatisfactory area of the law. One area in which the Bill fails is that it does not distinguish between loss of control through anger and cases of long-term violence where people-especially women-fear repetition of the violence. Those are entirely different cases. The second sort of case is not really about loss of control at all, and should be subject to a separate defence. None of our proposals were discussed, and it is not possible at this stage to rewrite the whole of the murder provisions-although if that were possible, it should have been done.

It is possible, however, to offer a cut down version of what we offered on Report, by way of amendment (a). That amendment deliberately ties the issue of sexual infidelity to a specific part of the trigger provisions, namely that the circumstances should be

"of an extremely grave character".

It ties it down to how the Bill works, rather than being at large which is how the current drafting works. It avoids the "constitute" problem by concentrating not on the thought processes of the court, but on the actions and intentions, or reasons for action, of the defendant. We hope that it adds more comprehensibility to the sexual infidelity language by referring to "sexual jealousy", which is slightly clearer.

The Minister said that what was wrong with our amendment was that there were circumstances in which the defendant might "perceive"-she used the language of the amendment-that what was going on was sexual infidelity whereas, in reality, it was not, or someone else might think that it was not. That ignores, first, that this is a jury question in the end-that cannot be got away from; this is criminal law, so the jury decides this kind of issue. It also ignores the fact that the amendment starts with the words

"where D acted principally out of a desire".

The key phrase is "acted principally". The jury decides whether someone acted principally out of the various matters referred to in the amendment. The Minister's problem with the subjective nature of "perceived" does not arise unless the jury thinks that that is the principal reason. No reasonable jury could possible believe that in the circumstances she put forward the principal reason for the action of the killer was sexual infidelity-even the perception of it.

The objections that the Minister raised do not work. I simply add that whatever the problems with our drafting, they are as nothing compared with the problems in the Government's drafting. Faced with a choice between something slightly imperfect and something plainly bizarre, we should choose the slightly imperfect. Thus, if circumstances arise in which it is possible to vote on amendment (a), I request that we do so.