Getting away with murder

Over at Harry’s Place, Brett is troubled:

I’m starting to get the uncomfortable feeling that the Government is increasingly making up the law as it goes along, without any thought for establishing a coherent whole.

Funny how some of us noticed this trait ten years ago, but better late than never. Brett is, moreover, right to be concerned. The source of his discomfiture is this proposed change to the homicide law to replace the partial defence of provocation that currently exists with two new defences:

These would be if someone killed over fears about serious violence, or if they could show they were “seriously wronged” by the victim’s actions.

The law changes would apply to England, Wales and Northern Ireland.

Attorney General Baroness Scotland said they would bring the law “up to date”.

Under the plans, the partial defence of diminished responsibility would also be abolished and replaced with a new defence based on “recognised medical conditions”.

The partial defence of “fear of serious violence” could be used by long-term domestic abuse victims, arguing they were forced to kill their abuser.

And in “exceptional circumstances” a defendant could successfully claim they killed in response to words or conduct that left them feeling “seriously wronged”.

The Ministry of Justice said someone could not claim to be “seriously wronged” if they found out their partner was having an affair, whereas adultery can count under the current provocation defence.

A spokeswoman said the existing law “is designed to cater for anger killing, but it is not significantly well tailored for killings that are a response to fear.

While many would agree that women (or for that matter, men) who kill in fear of a violent partner should have some sort of recourse to a defence against a murder charge (which carries a mandatory life sentence under English law), it is more than doubtful that this is a helpful or necessary change.

The government has itself pointed out that the current arrangements involve judges tailoring a defence designed to deal with crimes of anger to deal with crimes of fear. While this is hardly ideal, it is unclear how the government’s latest proposal is an improvement. The proposed “fear of serious violence” defence sounds reasonable on the face of it - but in a society where domestic violence has been brought well and truly into the open, and where the opportunities for victims of domestic violence to escape and seek support are extensive, is this really a necessary move? Would it not be better to place further emphasis on countering abuse and supporting its victims, rather than offer a free pass on murder as an option? Shouldn’t the point rather be to reduce violence?

More worrying by far is the “seriously wronged” defence. While the Ministry of Justice seems to think it knows what this means, can we be sure that all judges will in all cases agree? Why should anyone who feels themselves “seriously wronged” be allowed to get away from murder? Haven’t we been trying to wean certain sections of society away from this concept? No doubt the so-called “honour killers” who have slaughtered young female relatives for the sake of respect for their family name will feel themselves vindicated by this news. The Ministry of Justice has elected to tread a very dangerous path.