Friday, 7 November 2008

What provoked Harriet to be so stupid?

Sometimes I wonder what planet Harriet Harman comes from. No, let's be realistic, it's not sometimes, it's almost every time she opens her mouth. Her latest piece of braindead lunacy concerns provocation as a defence to a charge of murder.

As I understand the current law, someone who is provoked to such an extent that he or she kills as a direct consequence of that provocation is guilty of manslaughter rather than murder. We are not talking about accidental deaths, we are talking about acts done with the intention to cause very serious harm and which result in death. Provocation does not allow anyone to get away with anything, it merely results in a conviction for a lesser offence. Except in the most extraordinary instances, a long prison sentence will still result.

The reason we have a defence of provocation is because the law seeks to reflect reality. Where someone has in fact been provoked to kill either the law reflects that fact by defining the killing as something less than murder or it does not, that is a policy decision, but all the best policies are based on common sense and reality. What makes no sense and is entirely unrealistic is to define, on the grounds of nothing but bigotry, the types of provocative act which allow the defence to be invoked. Someone who is provoked to kill is provoked to kill, whether the provocation is by words or conduct, whether it relates to skin colour, race, religion, sexuality or anything else. To retain the defence for some examples of provocation and remove it for others is arbitrary nonsense. So, what is it that simple Harriet is concerned about?

Well, it's obvious really. She is having a go at men again. The Times reports that the government proposed to withdraw the defence of provocation where the provocative conduct is sexual infidelity. Unnamed ministers are quoted as having said the current law allows men to "get away with murder". The absurdity of such a statement should be obvious to all. First, no one gets away with anything, the killer will still be convicted of manslaughter. Secondly, the defence is available to both men and women. Thirdly, provocation will only result in a conviction for manslaughter rather than murder if the jury is satisfied that the circumstances merit such a verdict. Fourthly, if a jury is satisfied that the provocation was so serious that a lesser verdict is appropriate, there can be no sensible basis on which government ministers can claim to know better. Fifthly, if someone is in fact provoked to kill because his wife has entertained the milkman to more than a strawberry yoghurt, there is no sensible basis on which that factual provocation should be treated differently from other acts of provocation. Sixthly, and most obviously, no one is getting away with murder because someone who has been provoked to kill is not guilty of murder.

Perhaps more worrying is the end of the first paragraph in the article which reports that the defence of provocation will be unavailable to men who kill their unfaithful wives. Time will tell whether simple Harriet really proposes to withdraw the defence from men only, but she is such a bitter and stupid bigot that it wouldn't be surprising.

And what will happen if this ridiculous proposal is made law? How is it to be enforced? A man who has been provoked by her infidelity to kill his wife will face a charge of murder. That is the same as the current position - the prosecution does not judge whether the defendant was provoked, it lays a charge of murder and it is for the defendant to raise the defence and satisfy the jury. Is it expected that defendants will just roll over and plead guilty to murder? I would suggest that they are more likely to tell the jury of the circumstances which caused them to kill and claim that they were so affected by what their wife did that they were not in control of their faculties, thereby claiming what the law calls diminished responsibility. In order to return a verdict of guilty of murder the jury must be satisfied that the defendant intended to kill or to do really serious harm. Where your mind was so affected by circumstances that you could not form that intention you are not guilty of murder, but you can be guilty of manslaughter by reason of diminished responsibility. Like the defence of provocation, this is a means by which the law seeks to reflect reality. All the cases where provocation is currently run will turn on exactly the same evidence but instead of the jury having to consider murder or manslaughter by reason of provocation they will have to consider murder or manslaughter by reason of diminished responsibility.

The whole thing is an utter nonsense. The Senior Law Lord has already said so. Who would you trust to speak more sense on the law, the Senior Law Lord or Harriet Harman?

Mr Simpleton made a good point in the comments. He noted that a jury might acquit a defendant altogether if they felt he did not deserve a conviction for murder and he did not run a defence of diminished responsibility. It would be a very high risk strategy for any defendant to take, but it certainly could happen.

No jury is bound by a government minister's narrow-minded view of a subject. The jurors' oath is "to reach a true verdict according to the evidence". No one has the right to tell a jury what "true verdict" means, it is something for each jury to define according to the circumstances of the case they are hearing. Over the years we have seen numerous instances of defendants being acquitted of breaching the Official Secrets Act even though their conduct was plainly contrary to the letter of the law and the only explanation for these verdicts is that the jury did not feel it would be right to convict on the evidence they heard, regardless of how the government might want them to act. There is no reason in principle why any other piece of dogmatic legislation should prevent juries doing exactly the same thing in the future.


The Great Simpleton said...

I wonder what she wil say when a man is found not guilty because he had such a hard luck story that the jury refuse to convict him for murder and he refused to go for diminished responsibility?

We need more fools around our ministers, someone needs to be telling them some home truths because there acolytes obviously aren't.

Mark Wadsworth said...

Stupid? Our Harriet?

Word veri: biler (presumably, somebody who spews bile)