A proposed revision of the laws governing murder may appease women's pressure goups but endanger justice
On 28 July the Ministry of Justice published its consultation paper “Murder, manslaughter and infanticide: proposals for the reform of the law”. All responses have to be received by 20 October. Lawyers are busy people, and much of the consultation period has fallen in school holidays when, like everyone else, they have family commitments. Could it be that the Ministry would prefer there to be few considered responses?
In 2004 the Law Commission, in a carefully considered report, advocated a thorough overhaul of the law. It proposed to distinguish between what would be labelled first-degree murder, the most serious cases in which there was a clear intention to kill or where death was obviously a possible outcome, and second-degree murder, those cases in which there is a lesser degree of culpability. First-degree murder would have a mandatory life sentence; a life sentence could also be imposed by the Judge for second-degree murder or he could give a fixed term of imprisonment, depending on the circumstances. Manslaughter would be restricted to cases where there has been some blame, but where the fatality was not intended. Evidence of provocation and diminished responsibility could have the effect of reducing first-degree murder to second-degree murder, not to manslaughter. It is right, said the Law Commission, for those who kill to be labelled murderers.
The Government is having none of this, but is introducing changes to satisfy the feminist lobby. They are not proposing to re-define murder as suggested by the Law Commission – too difficult perhaps, or too much trouble – but they propose to abolish the partial defence of provocation, which at present can reduce a murder charge to one of manslaughter, replacing it with a new partial defence of killing in response to a fear of serious violence and killing “in response to words and conduct which caused the defendant to have a justifiable sense of being seriously wronged”. Sexual infidelity is specifically excluded as a reason which can be put forward for a defendant’s loss of self-control, and whereas previously the loss of self-control in response to provocation had to be sudden and temporary, the Government would like “slow-burn” responses associated with domestic abuse cases to be excusable.
Sexual infidelity is described in the Ministry of Justice consultation paper as “commonplace”. Adulterous goings-on may well be commonplace in the House of Commons, but for the ordinary person, coming home to find a spouse/cohabitee in bed with the next door neighbour or his best friend can be traumatic. But here we have a clear indication that the Government does not value marriage or fidelity within personal relationships. “…sexual infidelity”, says the Ministry, “is not of itself an exceptional happening”. It may well be exceptional for the individual, but the jury will not even be able to consider it. Whereas at present the judge has to allow the jury to consider provocation once it has been raised, a jury is no longer to be allowed to deliberate on it unless the judge considers there is sufficient evidence. Juries, it appears, are no longer to be trusted to apply the standards of ordinary people.
The Government appears to have been mesmerised by the feminist woolly leg-warmer brigade, those for whom a woman must always be truthful and every man is a potential abuser. There have been some high profile cases in which verdicts have been overturned and retrials ordered, after campaigns by women’s groups, even where there has been evidence that a killing was premeditated. The trial judge in the case of Sarah Thornton sensibly observed that there were many unhappy, indeed miserable, husbands and wives but it is hardly reasonable to stab them fatally when there are other alternatives available, like walking out. Sadly, there are not enough refuges for battered women. Police helplines for domestic violence too often have answerphones. But introducing a bias into the law of murder is not the answer.
I am old enough to remember the hanging of Ruth Ellis. My parents tried to prevent me from reading about it, but I took the newspapers out into the garden and read them secretly. I remember – I was certainly not a lawyer then – thinking that yes, it was murder. She had obtained a gun, lain in wait for her victim and shot him several times. There was a possibility that her miscarriage had been caused by him hitting her in the stomach, but the shooting seemed to be motivated by revenge or anger, and was certainly not an action done out of fear. It was planned. With the Government’s new proposals, however, this case could have ended with a conviction for manslaughter rather than murder. She could have argued that her distress had been “slow burn” and that she had been driven to kill.
I remember also thinking that executing her was barbaric and had no point – but that is another issue.