Murder law reforms
New proposals to reform the murder laws in England and Wales are being billed as a "substantial change" by Justice Minister Maria Eagle. But I wonder just how much these long-awaited and much debated ideas will impact on the courts.
In their own consultation document published this morning (pdf link), ministers seem to accept that the proposals to introduce new partial defences against murder are either unnecessary or will be used only very exceptionally.
Where a woman has suffered years of violent abuse they are planning a partial defence against murder defined as "killing in response to a fear of serious violence". And yet, this is the government's own analysis of the situation:
"We do not think that there is much of a loophole in practice, partly because the scope of the complete defence of self-defence is so wide and partly because of the way that the courts have over the years extended the application of the partial defence of provocation. Our analysis of cases from 2005 did not reveal any where a murder conviction appeared to have resulted inappropriately as a result of the absence of such a partial defence."
The reality seems to be that the courts are ahead of the legislators on this. Back in 1995, the Appeal Court ruled in the case of Emma Humphreys, a child run-away who, aged 17, was working as a prostitute, killed her pimp and was sent to prison indefinitely. The judges decided that the years of appalling violence and abuse she had suffered, and the provocation leading up to the stabbing meant her crime was manslaughter not murder. After 10 years behind bars, she was released.
The Humphreys case provided the legal precedent for broadening the definition of provocation to include just the kind of "slow-burn" violent abuse that campaigners had been arguing for.
The second partial defence proposed by the government relates to "killing in response to words and conduct which caused the defendant to have a justifiable sense of being seriously wronged".
Again, ministers seem to accept that this defence would be very limited in its use. In fact, they can come up with only three scenarios in which it might be run:
1) A rape victim who kills her attacker after he taunts her
2) The mother of a rape victim who kills a man she catches raping her daughter
3) After a long-running dispute between neighbours, one of them kills the other
In (1) and (2) I would have thought the existing defence of provocation might be run while (3) strikes me as likely to be a clear case of murder. The Ministry of Justice is anxious to stress that this defence would only be available in "very exceptional" circumstances.
Solicitor General Vera Baird, quoted on the government release, only mentions situations in which this defence would NOT apply. "This can't be used when ordinary domestic conflicts cause friction and emphatically will not be available as a reaction to sexual infidelity", she says.
It is the proposal that sexual infidelity should be explicitly ruled out as a defence of provocation that may have the greatest impact in the courts.
I am happy to be corrected but it seems to me that we could end up with a situation where loss of emotional control having witnessed a rape is grounds for reducing murder to manslaughter while loss of emotional control having caught a spouse 'in flagrante' with a lover is not.
Of course, the real reason we are tying ourselves in knots over this is the mandatory life sentence for murder. With only that one sentence available to a judge, he or she is not in a position to differentiate between the contract killer and the battered wife.
They have some flexibility in deciding upon the minimum tariff for the murder, but manslaughter allows much greater scope for discretion. It can, one must remember, mean life or immediate release.
A survey of public opinion included in the 2006 Law Commission report (pdf link) on this subject found that, after considering different scenarios, almost 63% of people thought the mandatory life sentence for the most serious homicides was wrong.
To my mind, there will be some suspicion that this consultation on changing the homicide law is more about gender politics than it is about murder.