Provocation defence concerns

The government has pledged to press on with its proposals to reform the law of homicide, despite expressions of unease from the former lord chief justice.

Lord Phillips, speaking at a lecture for Essex University students, at the offices of Cliff ord Chance, said that the decision to remove the defence of provocation would add another layer of complexity to judges’ summing up and create further difficulties for the jury.

He went on to express his apprehension about the decision to remove evidence of a partner’s infidelity from a provocation defence.

“I must confess to being uneasy about a law which so diminishes the significance of sexual infidelity as expressly to exclude it from even the possibility of amounting to provocation,” he said.

Harriet Harman, minister for women, responding to his comments in The Observer, said: “We have had the discussion, we have had the debate, and we have decided and are not going to bow to judicial protests. When we have changed the law, we are confident the judiciary will implement it. I am determined that women should understand that we don’t brook any excuses for domestic violence.”

Professor Leonard H Leigh, barrister and honorary fellow of the Inner Temple, says that such statements from the government suggest “an utterly closed mind”.

“The minister has simply ignored a number of issues raised by Lord Phillips. I doubt whether the defence of provocation could, given its internal tensions, ever be made to work entirely satisfactorily.

“It is required as a doctrine only because of successive governments’ stubborn adherence to the political compromise represented by the mandatory life penalty,” says Leigh.

Leigh suggests that little thought appears to have been given to how the government’s proposals would apply to honour killings.

“Many of these cases could not remotely attract provocation, or any other defence, nor should they. Many were murder, committed deliberately, in circumstances of utmost barbarity,” says Leigh.

He continues: “It is surely extreme to provide that infi delity as such, whatever the actor’s immediate emotional response to it may be, can never raise a qualified defence.”

“As it stands, the defence of provocation does not allow an open season on spouses,” he adds.