Joshua Rozenberg
c/o Noel Gay
19 Denmark Street
London WC2H 8NA




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January 18, 2009

Provocation and diminished responsibility

I have been looking at clauses 39 to 42 of the Coroners and Justice Bill, which deal with provocation and diminished responsibility. These are partial defences to murder, in the sense that — once established — they reduce a murder conviction to one for manslaughter.

The only significance of this distinction, of course, is that life imprisonment is the mandatory sentence for murder but not for manslaughter.

Though the clauses are well drafted, the concepts they embrace are complex. You would not have to suffer from diminished responsibility to find them hard to understand. And anyone who suspects they may be provoked into a killing will not find these clauses either calming or comprehensible.

Just to give you an idea, let me quote part of clause 41(1). A person who kills — let’s call him D — is to be convicted of manslaughter rather than murder if

(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D’s sex and age, with a normal degree of tolerance and self restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

All these concepts are further defined in the Bill. A qualifying trigger may be a fear of violence. And what’s important is that the loss of self-control no longer has to be sudden. That’s because it’s thought that the existing defence favours men; women are said to lose self-control more slowly.

If you really want to understand what the change will mean, start by reading clauses 41 and 42. Then look at the explanatory notes attached to the Bill.

These say “it will remain open, as at present, for the judge (in deciding whether to leave the defence to the jury) and the jury (in determining whether the killing did in fact result from a loss of self-control and whether the other aspects of the partial defence are satisfied) to take into account any delay between a relevant incident and the killing”.

So women who wait a long time before killing an abusive partner may be convicted of murder after all.

The next thing you should do in your quest to understand all this is to look at a fuller document published by the Government at the same time as the Bill. This summarises comments on an earlier draft and explains why the Government has made minor amendments.

“We continue to believe,” the Government says, “that the right approach is to retain the requirement for control to have been lost but to remove the requirement for the loss to have been ‘sudden’ to make plain that situations where the defendant’s reaction has been delayed or builds gradually are not excluded.

“However, we acknowledge the concerns that ‘suddenness’ could be read back into the law and therefore have decided to put the matter beyond doubt on the face of the statute. We also do not believe that it will be a bar to the partial defence applying in deserving cases of long-term abuse.”

The comments paper discloses that “a number of academic lawyers, legal practitioners and lobby groups” pointed out that the Government could have saved itself a great deal of time and trouble if it had simply abolished the automatic sentence of life imprisonment for murder. This would “allow mitigating features of homicide cases to be dealt with more easily without resorting to ‘gateways’ through which a defendant can escape a murder conviction in deserving but not undeserving cases”.

I agree. Whether a killing was murder or manslaughter would not matter if the judge was not bound to pass a sentence that is both misleading and misunderstood.

But ministers are unmoved. “The penalty for murder is an essential element in maintaining public confidence in the justice system which this government will maintain,” they say.

Really? Aren’t ministers undermining that element by extending the scope of manslaughter? If you extend the partial defence of provocation, people who would otherwise have been concvicted of murder will escape a mandatory life sentence when they are found guilty of mere mnsalaughter in future.

And changing the law might lead to a more proportionate level of sentencing in murder cases, too. Anything but the most straightforward murder now attracts a minimum term in the region of 30 years, equivalent to a 60-year fixed sentence for any other offence.

But nobody seems to understand this — least of all the sort of armed robbers who kill shopkeepers and those protecting them.

So the Government has the worst of both worlds: sentences that are too high to be fair and too obscure to deter. Surely there must be a better way?

Posted at January 18, 2009 04:37 PM