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 Douglas Hogg Douglas Hogg Conservative, Sleaford and North Hykeham 7:30, 9 November 2009

I think that my right hon. and hon. Friends wish to contribute to the debate, as perhaps do some Labour Members, so I shall be brief and compress my remarks to something shorter than I originally had in mind.

The law of provocation has always been one of the most difficult aspects of the law of homicide, and over the years it has given rise to a great deal of judicial comment and controversy. Broadly speaking, the recommendations of the Law Commission, which are encompassed in this Bill, are to be welcomed, but there is one exception: the proposal to exclude from the triggering event the conduct entitled "sexual infidelity". I am very much with my hon. and learned Friend Mr. Grieve, who speaks from the Front Bench, in believing that this is essentially a matter for a jury.

Perhaps the House will forgive me if I recount a case that I dealt with some three or four years ago-I was acting for the defendant, who was charged with murder. He was impotent, and he often tried to have sexual relations with his wife and failed because of his impotence. The wife then developed a long-standing sexual relationship with a lover, and that was known to my client. There was then an occasion when my client tried to have sexual intercourse with his wife, but because he was impotent he could not achieve that, at which point the wife began to abuse him, laugh at him and say that he was not a patch on the lover. My client lost self-control and strangled his wife.

Within that cocktail of events, the sexual infidelity of the wife played a prominent part, but if we are to accept the Government's position, that sexual infidelity would have to be disregarded. I see absolutely no justice in providing in statute law that what was clearly, on the face of it, a relevant fact should be disregarded. My client was convicted of murder-that is to say, the jury in that case determined that the conduct did not amount to provocation within the meaning of the law, and he was convicted of murder. I was very unhappy about that verdict, but that is a wholly different matter. What the case shows is that a jury is perfectly capable of addressing this issue and taking a broad view of what is just.

The Minister has said that her views were in accord with those of the Law Commission, but that is not so. What is correct is that the Law Commission said in its report that male possessiveness and jealousy should not, of themselves, constitute good cause. It relied, perfectly understandably, on the judgment of Lord Hoffmann in the very important case of Smith (Morgan), when he commented on the Australian case of Stingel. If the Minister were to read further on in the report, to the following page-this is the point to which my hon. and learned Friend the Member for Beaconsfield was drawing attention-she would see that it makes it clear that where additional material comes into play-for example, taunting somebody about their impotence-it is right that consideration of that combination of events should be left to the jury.

That is why the Law Commission, in its considered view, held against the Minister's position of excluding a particular category of event from the triggering events. If she would be good enough-I am sure she will-to examine paragraph 3.168 on page 70, where its detailed recommendations for inclusion in statute law are set out, she will not find a recommendation that sexual infidelity should be excluded from the triggering categories. She will not find it, because that was not the Law Commission's view. Its view-it happens to be my view, too-is that these are matters best left to the jury. Very often, the jury will decide that the conduct does not amount to provocation, as in the case I told this House about, but sometimes it will decide that it does. If we exclude that fact from the jury's ability to take account of the matter, we bring about a profound injustice. I believe that the views expressed in the other place are wholly right and that this provision has been added-probably at the suggestion of the Solicitor-General, who is no longer in her place-out of a desire to be politically right. I do not think it just and this House should not go along with it.