OK, I admit it, I’ve been ducking this moment for some time. Over the years I have become pathetically attached to the law of provocation. I’ve found the ins and outs of personal characteristics in relation to the second limb of the objective test fascinating, and I thoroughly enjoy teaching the subject. Not any more. Thanks to the Coroners and Justice Act 2009, provocation is no more. We have a new partial defence of “loss of control” and I need to update my lecture materials to take this into account, like it or not.
So, is the new law an improvement? Some learned commentators have said that it is – for example Joshua Rosenberg writing in the Guardian. (http://www.guardian.co.uk/law/2010/sep/30/murder-law-reform)
Personally, I think it’s a mess.
For starters, it’s a bit of a mouthful:
“where the defendant kills or is a party to the killing of another, the defendant shall not be convicted of murder if, (a) the defendant’s acts and omissions in doing or being a party to the killing resulted from his loss of self control, (b) the loss of self-control had a qualifying trigger, and (c) a person of the defendant’s sex and age, with a normal degree of tolerance and self restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way to the defendant.”
Try giving that direction to the jury without taking a breath!
Still, elegance of phrasing is not a guarantee of good law, so let’s move on. There are obvious issues like what is ‘normal’ tolerance and self-restraint? but such things always fall to be determined fully by the application of case law. So what about that last bit….”might have reacted in the same or in a similar way to the defendant” Is it just me or is this extremely wishy washy? I can feel myself about to launch into an Inspector Grim style rant every time I read this one (“airy fairy, hoity toity…..”). I wait with interest to see how juries cope in applying that one. I just can’t believe that the previous “the reasonable person would have acted as D did” wasn’t considerably more satisfactory.
But perhaps I am missing the point. In focusing on those little annoyances, I’m not looking at the bigger picture. The aim of the changes was to protect abused women who kill, but do not necessarily do so following a sudden and temporary loss of control, and to prevent men from violently killing their wives because of adultery, or even a suspicion of such. A very worthwhile aim…but does the new law achieve this? I think not.
For starters, do we really need these “qualifying triggers”? The claim that the old law allowed violent husbands to get away with murdering their wives on the grounds of adultery is, frankly, rubbish. The question of whether the defendant was provoked was only one element of the defence – adultery or suspicion of adultery could be provocation, the crying of an innocent baby could be provocation, but that’s not to say that the person pleading the provocation would automatically have a defence. There was the further need to prove that a reasonable person (sharing D’s characteristics) would have been provoked and that this reasonable person would have acted as D did (this latter test not taking into account any characteristics of D other than age and sex). Infidelity or a crying baby might well be accepted as provocation, but it’s quite another thing for the jury to accept that the reasonable person in this situation would, for example, inflict multiple stab wounds. As Lord Lloyd of Berwick explained (Hansard text 26 October 2009):
“the defence does not succeed just because the defendant kills in anger, it succeeds only if the jury, as reasonable men and women, would have done as the defendant did. If that is so – I see no evidence that it is not – why do we need a qualifying trigger? The answer is that we do not.” http://www.publications.parliament.uk/pa/ld200809/ldhansrd/text/91026-0010.htm
In response to the argument that the new law is designed to help battered wives, Lord Lloyd is equally astute:
“I have every sympathy with the Government’s objective……….But the Government have set out to achieve their objective in the most extraordinary way. They have tried to shoehorn – to use a word used by the Attorney-General – the new partial defence based on fear into the existing partial defence based on loss of control. But that does not work.”
One can only ask why the Government, in their infinite wisdom, didn’t just create a new partial defence and leave the old law of provocation as it was. Still, it will probably make for an interesting examination question in the June series.
As will be clear, I’m no fan of the new law. I would like to end this piece with a pithy put-down, but I’ve been beaten to it. I shall have to content myself with quoting Baroness Mallalieu from Hansard on 7 July 2009:
“The phrase “dog’s breakfast” would be a kindness”
A quick post script (16th Dec 2010)…it’s nice to know that those of us who are finding this law change a teeny bit woolly and difficult to follow are in stellar company…it appears that even our the senior judges find it a mite vexatious: http://www.dailymail.co.uk/news/article-1338971/Even-judges-confused-law-says-Britains-judge-Lord-Chief-Justice.html