Penny,

Very much enjoyed the article and agree with the majority of it. Just a quick question – does the change affect ‘crimes of passion’ committed where one partner is caught in delicto flagrante?

xD.

Thats French law, dude. So far as I know, no such defence in English law.

‘does the change affect ‘crimes of passion’ committed where one partner is caught in delicto flagrante?’

Yes, it does.

Sorry, Laurie, but having read the MoJs proposals and compared them to the full recommendations of the Law Commission in its 2006 report on murder, manslaughter and homicide, what could and should have been a reasonable and equitable set of necessary reforms has become yet another New Labour exercise in pandering to the cult of victimhood not to mention yet another attempt to introduce unnecessarily prejudicial biases into law.

The problem with these proposals is this – the MoJ have disregarded entirely the one recommendation made by the Law Commission that would have enabled killings in domestic situations to be dealt with equitably, the creation of a second degree homicide offence between murder and manslaughter.

As presented by the MoJ what we have here is the introduction of a partial defence based on fear of serious violence which is eminently reasonable and which would downgrade those rare cases in which a woman kills a violent partner to manslaughter – that is a perfectly reasonable and long overdue innovation.

What we also have, however, is an attempt to neuter the provocation and diminished responsibility defences in such a way as compromise the long-standing legal distinction between killings undertaken with ‘malice aforethought’ (premeditation) and killings that take place in the heat of the moment and as a consequence of a temporary loss of control. Historically, the former has been unequivocally treated as murder, the latter as manslaughter.

Yes, this has given some men a means of avoiding a murder conviction in circumstances in which their defence is of somewhat dubious merit but the problem here is that where it is shown that there is no premeditation, while a murder conviction is excessive, a manslaughter conviction is insufficient to deliver justice, hence the need for a secondary homicide offence between the two.

Having read the Law Commission’s proposals. the only quibble I have with them is the suggestion that both the fear of serious violence and provocation/diminished responsibility defences would allow only for a conviction to be downgraded from murder to second degree homicide where it would, as I see it, be perfectly reasonable to allow juries the option of a manslaughter verdict under conditions in which the test for such a verdict where the provocation/diminished responsibility defence is relied on.

As I see it, the correct and equitable formulation of the law should be one in which a woman who kills an abusive partner while in fear of serious violence would face a charge of manslaughter with the prospect of a minimal sentence unless there is evidence of other motives or a history of perpetrating violence. Not all DVs are necessarily a straight case of man batters woman, there are cases in which women are the primary abuser and/or instigator of violence in the home and evidence of such a history would mitigate against manslaughter and, in rare cases, may even dictate a second degree homicide conviction.

For a man who kills who kills their partner in a domestic situation in the absence of premeditation, the correct baseline offence would be second degree homicide in all but extreme cases where there is substantial mitigation, i.e. a man with no prior history of violence towards women who lashes out under the most extreme provocation might have the offence downgraded to manslaughter but where there is a history of violence the minimum offence would be second degree homicide with the extent to which they have a history of violence toward women being treated as an aggravating factor in sentencing.

And only where premeditation is shown, in the absence of other mitigating factors, would the charge be one of first degree murder.

As these proposals stand the combined effect of the MoJs plans would lead to those rare and infrequent cases in which women kill men out of fear for their future safety – which is reasonable and equitable if the evidence supports the ‘fear defence’ while making it much more likely that men will be convicted of murder and receive a mandatory life sentence even if there is no clear evidence of premeditation, which is something less than equitable.

The annoying thing here is that it’s not at all difficult to get from the Law Commission’s carefully reasoned and balanced recommendations to a fair and equitable system of dealing with killings in domestic situations in only you don’t get sucked into playing to the victims gallery, even if this appears to be a task beyond the capabilities of the current government.

If you want to see exactly what I mean, you can download the Law Commission’s report here – http://www.lawcom.gov.uk/docs/lc304.pdf – and it is, in all major respects, a much better set of reform proposals than the MoJ’s pick n’ mix exercise in cod populism.

Nick,

Crime passionnel was a complete defence under the Napoleonic code but it is a partial defence under English law.

Penny,

Thanks – that’s interesting. The law will require careful drafting and, in any case, I suspect that the M’Naghten rules could still be used to mount a partial defence.

Unity,

While I’m not sure where I stand on your point – I’ll have a look at the Law Commission’s report – I think that reforming the law to introduce a new class of homicide (given that the existing manslaughter-murder distinction goes back around five centuries) would take longer than is available before the General Election. Equally, I’d hardly call it ‘cod populism’.

xD.

Dave:

Reforming the law to introduce a new class of homicide would be no more onerous than any other piece of criminal law passed by the government in recent years and, in many respects, much less of a problem than many of the more nebulous offences that this government has introduced, not least because such provisions already exist in other common law jurisdictions, such as the US. One often unreported but valuable consequence of the common law system is that precedents set in other common law jurisdictions often have a measure of ‘portability’ that is lacking in jurisdictions based on the Roman/Napoleonic code.

In other words, were such a class of homicide to be introduced, British jurists would have the wisdom of the best American jurists to draw upon in framing Britain’s common law interpretation of this new offence rather than being forced to derive such interpretations from first principles.

As for calling these proposals ‘cod populism’, I’m afraid that that is pretty much what they are when taken in their totality and contrasted with the considered and measured recommendations of the Law Commission, although that’s a point that better illustrated by comparing the Law Commission’s report with the MoJ’s consulatation paper – http://www.justice.gov.uk/docs/murder-manslaughter-infanticide-consultation.pdf

In particular it’s worth taking careful note of the government’s response to the Law Commission’s proposals for this new class of homicide – or near total lack thereof…

7. The Murder Report recommends wholesale reform of the law in this area and, specifically:
• a new offence structure for homicide, including new offences of first degree and second degree murder, as well as manslaughter;

• reforms to the partial defences of provocation and diminished responsibility;
• reforms to the law on duress and complicity in relation to homicide; and
• improved procedures for dealing with infanticide.

8. The Murder Report was intended as the first stage in the review of the law, with the Government undertaking the second stage. In taking forward this second stage, the Government is proceeding on a step-by-step basis, looking first at the recommendations which relate to:

• the partial defences of provocation and diminished responsibility;
• complicity in relation to homicide; and
• infanticide.

9. The Law Commission’s recommendations in these areas are predicated on their proposed new offence structure, but this paper considers them in the context of the existing structure. The wider recommendations in the Law Commission’s report may be considered at a later stage of the review.

And that’s your lot – no explanation as to why the Law Commission’s recommendations for the creation of an offence of second degree homicide will get no consideration just a ‘we might think about it a bit later, if we feel like it’.

Is it really too much to ask that if the government considers such an offence to be unnecessary, for whatever reason, it should at least explain its reasoning rather than fob everyone off with a ‘we might get around to it’…

Alternatively the Government could get rid of mandatory sentences and let the courts decide what is appropriate in individual cases, subject to appeal.

If the defense of provocation dates back to the 17th century, how come the case of Kiranjit Ahluwalia made legal history? http://en.wikipedia.org/wiki/Kiranjit_Ahluwalia

As far as I know, the defense of provocation in cases of domestic violence only entered English law in 1992.

#4 : “As I see it, the correct and equitable formulation of the law …

…extent to which they have a history of violence toward women being treated as an aggravating factor in sentencing.”

My summary of the above section :

– Woman (without history of violence) kills man in fear – “manslaughter with the prospect of a minimal sentence”

– Man (without history of violence) kills woman in fear – “second degree homicide in all but extreme cases where there is substantial mitigation”

I don’t follow. Why is “woman kills man” automatically assumed to be manslaughter, but “man kills woman” automatically goes to second-degree homicide, except in extreme cases? I feel like I’ve missed a step where the differentiation is justified. Surely the application of manslaughter, murder, or whatever other charges should be based on the facts and context of the case; not whether the defendant or the victim had the penis.

Synergy,

It’s not about the gender – it’s about killing in fear being different from killing in anger, in the spur of the moment. So, with your patterning:

woman or man (with no history of violence) abused by partner, kills in fear: manslaughter

woman or man (with no history of violence) kills in a fit of rage: second-degree homicide.

Hope that helps. x

It’s not quite clear which point Unity was making (if it was nothing to do with gender, why keep to one gender when discussing one crime, then randomly switch over for the other?), but if that was it, then I agree.

Julie Bindel is for it, ergo I’m against it. Whatever it is.

Synergy,

The proposal is not gendered, and its eventual enforcement will be of just as much use to the few men at risk of their wives lashing out at them in fits of rage.

The point of the gendered language, if I can put words in Unity’s mouth, was that the defence of ‘oh it was just the heat of the moment’ is rarely, if ever, used by women in courts. And the defence for killing in fear will be particularly useful to people living in terror of abusive partners who kill those partners; according to precedent these people have more often been women.

Astana –
normally, I’d totally agree with you. This time, I’ll bite the bullet, or bite the Bindel, or whatever. Unusually, she’s got a point.

Finally, a recognition that women and men who are seriously abused by their partners turn to murder out of fear, not anger.

I should have thought that was more likely to lead to divorce or separation, rather than murder.

I might add that if I was changing the laws on murder, I would try to have things associated with the Home Secretary, rather than the Minister for Women. I would want to at least look as though I cared about justice for British citizens, rather than benefiting members of one particular gender.

Pennyred:

The proposal is not gendered, and its eventual enforcement will be of just as much use to the few men at risk of their wives lashing out at them in fits of rage.

With minor modifications to the Law Commission’s full proposals this is what would be the case but only because of the inclusion of a second degree homicide offence.

Without that new offence, however, the government’s proposals as the stand do introduce an unnecessary and inequitable degree of gender bias in to the framing of the homicide law due to the manner in which the revised form of provocation defence is framed. Its not an irretrievable situation by any means but as things stand it is lacking in equity and unnecessarily so,

“the same proposal will outline plans for a new partial defence when men or women kill ‘in response to a fear of serious violence’, without the current requirement for the crime to have been spontaneous.”

Hmmm. Does anybody else see the very very very slight flaw in this plan? If someone can convince a jury that they lived ‘in fear’, they get a lower sentence? Can someone please explain to me how this can be assessed objectively? Say, for example, a woman killed her husband after she found out he’s been cheating on her, but in court she testifies that she lived in fear of violence and gets her sentence significantly reduced. How can her claims be verified? This new law would mean that going to the police and reporting abuse BEFORE murdering your partner would be rendered irrelevant as people could take the law into their own hands and still get a lower sentence.

The lack of objectivity and the blatantly obvious opportunity for taking advantage of this change in legislation are nothing short of terrifying.

http://lettersfromatory.wordpress.com

I find this confusing.

If you live in fear, you should be encouraged to leave the relationship and – if at all possible – prosecute the partner whose actions caused you to live in fear.

Those who do not leave such relationships often fear that they will be found and that any prosecution they seek will fail. They stay out of fear and, in extreme cases, they then end up killing out of fear.

However, in order to avail themselves of the new defense these changes offer, defendants would still need to be able to demonstrate that they lived in fear and that their fear was well founded. For this defense to operate would it not first be necessary to (posthumously) prosecute the abusive partner?

LFAT:

In cases where the fear of violence defence is deployed, one would expect that this would, in the first instance, severely tested by the prosecution under cross-examination and would need to be supported by material evidence.

I would also expect that both the police, in investigating the case, and prosecution would pay a considerable amount of attention to the possibility of other motives existing that would mitigate against that particular defence.

In short, its not the ‘get out of jail free’ card that some are suggesting, but a defence that will require a significant degree of supporting evidence if it is to be deployed successfully, particularly as the government are also proposing to reinstate the old common law rule, which was repealed in 1957, under which a judge would be permitted to rule out a particular line of defence if, in their opinion, it is one that n reasonable jury could accept and direct the jury accordingly.

George V:

For this defense to operate would it not first be necessary to (posthumously) prosecute the abusive partner?

Not really – what would have to be demonstrated to the court is that there is a weight of material evidence to support the contention that the defendant has been severely abused by their (now deceased) partner under the ‘reasonable person’ test. As I explained above, the role of the judge in addressing and directing the jury will be a critical feature in how this defence will operate, particular in light of their restored authority to direct juries not to consider specious and unreasonable lines of argument.

As I understand it these laws do not only apply to domestic violence cases, yet all the discussion has been of DV. What about a case in which one criminal has double-crossed another (or is mistakenly thought to have done) and has every reason to fear for his life? Would they only be charged with manslaughter for a “preemptive strike” against the person who poses them a threat?

No – the government’s proposals rule out the use of a partial defences where the fear of violence stems from the defendant’s involvement in criminal activity or if the court finds that they deliberately provoked a confrontation in order to lay claim to a partial defence.

“These legal amendments are a targeted part of a broader goal to eliminate systems which facilitate domestic violence. It is never okay to lash out at a partner because they’re nagging you or shagging another bloke.
Violence is not an appropriate reaction to frustration with a partner, let alone murder, and in the society we want to build ‘provocation’ has no place as a legal excuse. This isn’t about misandry. It’s not about victimising men. It’s about justice.”

I could understand it if you were saying that motivation shouldn’t be taken into account when sentencing for murder – but why is fear a better reason for killing than anger?
Shouldn’t fearfull people do exactly the same as angry ones – go somewhere else?