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The Law Commission

Consultation Paper No 173

PARTIAL DEFENCES TO MURDER

A Consultation Paper

London: TSO

The Law Commission was set up by section 1 of the Law Commissions Act 1965 for the purpose of promoting the reform of the law.

The Law Commissioners are:

The Honourable Mr Justice Toulson, Chairman
Professor Hugh Beale QC
Mr Stuart Bridge
Professor Martin Partington CBE
Judge Alan Wilkie QC

The Chief Executive of the Law Commission is Mr Michael Sayers and its offices are at Conquest House, 37-38 John Street, Theobalds Road, London WC1N 2BQ.

This consultation paper, completed on 15 October 2003, is circulated for comment and criticism only. It does not represent the final views of the Law Commission.

The Law Commission would be grateful for comments on this consultation paper before 31 January 2004. Comments may be sent either –

By post to:
David Hughes
Law Commission
Conquest House
37-38 John Street
Theobalds Road
London
WC1N 2BQ
Tel: 020-7453-1212
Fax: 020-7453-1297

By e-mail to:
[email protected]


It would be helpful if, where possible, comments sent by post could also be sent on disk, or by e-mail to the above address, in any commonly used format.

Any request to treat all, or part, of a response in confidence will, of course, be respected, but if no such request is made the Law Commission will assume that the response may be quoted or referred to in subsequent publications or made available to third parties.

The text of this consultation paper is available on the Internet at:

http://www.lawcom.gov.uk

CONTENTS

Paragraph	Page
Summary Paper	Summmary
PART I: INTRODUCTION AND OVERVIEW	1.1
Introduction	1.1
Background and Terms of Reference	1.1
Structure of this paper	1.12
Overview	1.14
Partial defences to murder	1.14
Comparative studies	1.19
Statutory background	1.20
Provocation	1.21
Historical foundations of provocation	1.24
The 1957 Act	1.33
The "reasonable person" test	1.34
Other problems with provocation	1.48
Avenues for reform	1.52
Diminished responsibility	1.54
Excessive self-defence	1.59
Abused women who kill	1.66
PART II: STATISTICS AND EMPIRICAL STUDIES	2.1
Introduction	2.1
Past and current use of the partial defences to murder	2.2
Published studies	2.3
Dell (1984)	2.3
Home Office Study (1989)	2.5
Home Office statistics: crime in England and Wales 2001/2002, supplementary volume (January 2003)	2.6
Crime in England and Wales 2002/2003 (July 2003)	2.8
Ongoing studies	2.10
Nuffield Foundation Project relating to defences of diminished responsibility and provocation	2.10
Judges' reports in murder cases	2.11
Crown Prosecution Service internal review of homicide	2.14
Public perceptions of current homicide law	2.16
Published studies	2.17
Ongoing studies	2.25
PART III: THE HISTORY OF THE DEVELOPMENT
OF THE PARTIAL DEFENCE OF PROVOCATION	3.1
Introduction	3.1
Justification and excuse	3.4
Mens rea	3.9
Social circumstances	3.11
Developing a partial defence of provocation	3.14
Nature of the "provocation"	3.14
Nature of the response	3.26
Emergence of the Reasonable Man	3.39
Conclusion	3.43
PART IV: SUMMARY OF THE PRESENT LAW OF PROVOCATI
AND ANALYSIS OF ITS DEFECTS	4.1
Introduction to the present law	4.1
The meaning of provocation	4.8
Proof of provocation	4.12
The loss of self-control	4.15
Background	4.15
Sudden and temporary loss of control	4.18
Significance of delay between acts of provocation and killing	4.21
Where acts of provocation took place over a long period of time	4.24
The significance of planning the offence to the issue of loss of self-control	4.25
Conclusion on loss of self-control	4.27
Whether the provocation was enough to make a reasonable man do as the defendant did	4.29
DPP v Camplin	4.31
The journey from Camplin to Smith (Morgan)	4.39
The need for account to be taken of some of the characteristics of the defendant	4.40
Can any characteristic modify the hypothetical reasonable man?	4.42
Characteristics that are repugnant to the concept of the reasonable man	4.46
Are any abnormal characteristics of the defendant eligible for consideration by the jury on the issue of loss of self-control?	4.55
Analysis of House of Lords judgment in Smith (Morgan)	4.69
Introduction	4.69
Lord Hoffmann	4.72
The changes made by section 3 of the Homicide Act 1957	4.73
The effect of these statutory changes	4.75
Camplin	4.78
The relationship between sections 2 and 3	4.80
The need for an objective element in the defence of provocation	4.83
Conclusion of Lord Hoffmann	4.93
Lord Clyde	4.94
Injustice of limiting jury consideration of characteristics to those that affect the gravity of provocation and not the capacity to exercise self-control	4.94
Relevance of section 2 – diminished responsibility	4.96
Proportionality between provocation and response	4.97
The concept of the reasonable man	4.98
Interpretation of Camplin	4.100
Lord Slynn	4.101
Camplin	4.103
Lord Hobhouse	4.104
Camplin	4.109
The term "reasonable man"	4.110
The effect of other Court of Appeal judgments relied on by the majority	4.113
Lord Millett	4.116
Reasonable man	4.118
Characteristics	4.121
The need for a morally defensible role	4.122
Camplin	4.123
Criticism of approach taken in Court of Appeal in Smith (Morgan)	4.124
Disagreement with Lord Hoffmann's reformulation	4.125
Agreement with Lord Hobhouse	4.126
The question for the jury	4.128
Limits to the scope of section 3	4.132
Concluding remarks on the House of Lords judgment in Smith (Morgan)	4.134
Academic commentary on Smith (Morgan)	4.141
Statutory interpretation	4.142
Previous authority	4.143
Policy	4.144
Internal inconsistency	4.146
Lack of clarity	4.147
Our views	4.150
The application of Smith (Morgan)	4.151
Introduction	4.151
Provocation cases decided since Smith (Morgan)	4.152
Problems with the partial defence of provocation	4.162
The defence is inherently contradictory	4.162
The wide meaning of "provocative" conduct	4.163
The defence of provocation elevates the emotion of sudden anger over above emotions of fear, despair, compassion and empathy. Is it morally sustainable for sudden anger to found a partial defence to murder?	4.164
Sexual bias	4.166
It is difficult to distinguish revenge killings, so as to exclude them from this defence	4.168
The defence blames the victim of murder	4.169
Subjectivisation of the reasonable man	4.170
Practical difficulties with the operation of the defence of provocation	4.171
Difference in relation to burden of proof for defence of diminished responsibility	4.171
Obligation on judge to leave issue of provocation in cases where the defence do not seek to rely on the defence	4.172
Conclusion	4.173
PART V: THE LAW OF PROVOCATION IN OTHER
COMMON LAW JURISDICTIONS	5.1
Introduction	5.1
Existence of the partial defence	5.2
General themes	5.3
Provocative conduct	5.3
Standard of self-control	5.4
Cumulative provocation and "slow-burn" responses	5.6
Reform agenda	5.9
Australia	5.10
New South Wales statutory provisions and the common law of Australia	5.11
Provocative conduct	5.13
Actual loss of self-control	5.21
The "ordinary person" test	5.25
Response to the provocation	5.28
Procedure and role of the jury	5.31
Provocation in other Australian States and Territories	5.33
Tasmania	5.33
South Australia and Victoria	5.34
Queensland	5.35
Western Australia	5.36
Australian Capital Terriroty	5.39
Northern Territory	5.41
Proposals for reform in Australia	5.43
Provocation and gender	5.43
Reform of the standard of control test	5.47
Canada	5.51
The Criminal Code provision relating to provocation and its interpretation	5.51
Provocative conduct	5.53
An ordinary person would be deprived of the power of self-control by that act or insult	5.56
The defendant was actually provoked by the act or insult	5.59
The wrongful act or insult and the defendant's response to it were both sudden	5.60
Criticism of the defence of provocation	5.62
Proposals for reform	5.63
Option 1: abolish provocation defence and mandatory life sentence	5.64
Option 2: abolish the defence except for cases where excessive force is used in self-defence	5.66
Option 3: abolish the defence for spousal homicides only	5.68
Option 4: reforming the elements of the defence	5.69
Option 5: reforming the elements of the defence and extending it to a wider number of offences	5.73
India	5.74
Provocative conduct	5.75
Actual loss of self-control	5.80
The reasonable person test	5.81
Response to provocation	5.84
Ireland	5.85
Outline of law of provocation in Ireland	5.85
Loss of self-control	5.86
Immediacy requirement	5.87
Standard of self-control	5.89
Raising the defence	5.93
Proposals for reform in Ireland	5.94
New Zealand	5.96
The Crimes Act 1961	5.96
Standard of self-control	5.97
Proximity between provocation and response	5.100
Role of the jury	5.102
Proposals for reform	5.103
Scotland	5.107
Effects of the defence	5.107
Provocative conduct	5.108
Immediate loss of self-control	5.111
Standard of self-control	5.112
Proportionality	5.114
South Africa	5.115
PART VI: THE INTRODUCTION INTO ENGLISH
LAW OF THE DEFENCE OF DIMINISHED
RESPONSIBILITY	6.1
Background	6.1
The Royal Commission on Capital Punishment (1949-1953)	6.1
The relevance of mental disorder in cases of murder immediately prior to the enactment of the 1957 Act	6.10
The defence of insanity and its relationship to automatism prior to the Homicide Act 1957	6.11
Introduction	6.11
Insanity	6.17
Historical introduction	6.17
Before 1800	6.17
The Criminal Lunatics Act 1800	6.19
M'Naghten's Case 1843	6.20
The M'Naghten Rules	6.21
The Trial of Lunatics Act 1883	6.25
Judicial interpretation of the M'Naghten Rules prior to the enactment of the Homicide Act 1957	6.26
"Defect of reason"	6.28
"Disease of the mind"	6.30
"Nature and quality of the act"	6.36
"Did not know that what he was doing was wrong"	6.38
Automatism	6.44
Voluntary and involuntary acts or omissions	6.44
Conclusions	6.50
PART VII: THE DEVELOPMENT OF THE
DEFENCE OF DIMINISHED RESPONSIBILITY
IN ENGLISH LAW	7.1
Introduction	7.1
The structure and language of section 2(1)	7.10
Directing juries on the meaning of section 2(1)	7.13
Acceptance of a plea of guilty to manslaughter on the grounds of diminished responsibility	7.17
The elements of the defence	7.19
"Abnormality of mind"	7.19
The weight to be afforded to the medical evidence on the issue	7.19
Judicial interpretation of the meaning of "abnormality of mind"	7.22
Does the defendant have to prove that the abnormality of mind is such that he is "partially insane" or "bordering on insanity"?	7.32
The aetiology of "abnormality of mind"	7.38
Introduction	7.38
The need for, and the weight to be afforded to, medical evidence	7.43
Judicial analysis and interpretation of the the aetiological components	7.45
Introduction	7.45
The individual aetiological components	7.49
Mental responsibility	7.62
"Substantial impairment"	7.67
Alcohol, drugs and diminished responsibility	7.71
Introduction	7.71
"Abnormality of mind"	7.73
"arising from … any inherent causes or induced by disease or injury"	7.77
Pre-existing mental disorder and self-induced intoxication	7.83
Conclusion	7.91
PART VIII: DIMINISHED RESPONSIBILITY:
OTHER JURISDICTIONS	8.1
Summary conclusions	8.4
Comparative tables	Comparative tables
PART IX: EXCESSIVE USE OF FORCE IN
SELF-DEFENCE	9.1
The development of the current law	9.1
Self-defence	9.1
Excessive force in self-defence	9.4
The decision in Clegg	9.10
Criticism of the decision in Clegg	9.11
The decision in Martin (Anthony)	9.12
Previous recommendations for the introduction of a partial defence of excessive use of force in self-defence	9.17
Criticisms of the limitations of the law relating to the use of excessive force in relation to battered woman syndrome	9.19
Comparative studies	9.26
The Australian common law	9.26
South Australia	9.28
New South Wales	9.31
India	9.32
Ireland	9.37
Canada	9.39
The options for reform	9.40
PART X: ABUSED WOMEN WHO KILL	10.1
Introduction	10.1
"Battered Woman Syndrome"	10.3
Walker's theory	10.3
The cycle theory of violence	10.6
Learned helplessness	10.7
Criticisms of Walker's theory of "battered woman syndrome"	10.9
The position in Australia, Canada, Ireland, New Zealand, Scotland and South Africa	10.19
Australia	10.20
Provocation	10.20
Diminished responsibility	10.24
Excessive force in self-defence	10.26
Canada	10.27
Provocation	10.27
Diminished responsibility	10.28
Excessive force in self-defence	10.29
Ireland	10.30
Provocation	10.30
Diminished responsibility	10.31
Excessive force in self-defence	10.32
New Zealand	10.33
Provocation	10.33
Diminished responsibility	10.35
Excessive force in self-defence	10.36
Scotland	10.37
Provocation	10.37
Diminished responsibility	10.38
Excessive force in self-defence	10.39
South Africa	10.40
Provocation	10.40
Diminished responsibility	10.41
Excessive force in self-defence	10.42
The case law in relation to abused women who kill	10.43
Duffy	10.43
Ahluwalia	10.46
Humphreys	10.51
Thornton (no 2)	10.55
Hobson	10.61
Smith (Josephine)	10.63
The shortcomings of the defences of provocation, diminished responsibility and self-defence as a legal response to the cases of abused women who kill	10.67
Provocation	10.67
Diminished responsibility	10.74
Self-defence	10.79
Conclusions on the adequacy of English law in relation to abused women who kill	10.85
Options for reform	10.90
Provocation	10.91
Diminished responsibility	10.93
A "battered woman syndrome" defence	10.94
Pre-emptive use of force in self-defence or self-preservation	10.95
PART XI: PREVIOUS RECOMMENDATIONS FOR
REFORM OF DIMINISHED RESPONSIBILITY
AND PROVOCATION	11.1
Diminished responsibility	11.2
The Report of the Committee on Mentally Abnormal Offenders	11.2
The Criminal Law Revision Committee	11.10
The Law Commission	11.15
The House of Lords Select Committee on Murder and Life Imprisonment	11.19
Criticism of previous approaches to reform	11.21
Provocation	11.22
The Homicide Bill 1957 – the Parliamentary debate	11.22
The Criminal Law Revision Committee	11.29
The Law Commission	11.36
The Select Committee on Murder and Life Imprisonment	11.38
PART XII: OPTIONS FOR REFORM	12.1
Introduction	12.1
Provocation	12.2
The moral viewpoint	12.10
Abolition of the defence	12.21
Retention of the defence of provocation in a modified form	12.27
The provocative matter	12.29
Effect on the defendant – a sudden and temporary loss of self-control	12.33
The reasonableness of the defendant's response	12.42
Conclusion	12.54
Other possible limits to a defence of provocation	12.56
Abolition of the defence where death results from an intention to kill	12.56
Self-induced provocation	12.59
Burden of proof	12.63
Diminished responsibility	12.68
Abolition of the defence	12.70
Retention of the defence of diminished responsibility	12.73
Burden of proof	12.75
Merger of provocation and diminished responsibility into a
single partial defence	12.77
A partial defence of use of excessive force in self-defence	12.82
Excessive use of force in defence of oneself or another in circumstances where the use of some force would be lawful (Option A)	12.84
Extension of Option A to include use of excessive force in the protection of property or prevention of crime (Option B)	12.86
Pre-emptive use of force in self-defence (Option C)	12.88
Extension of Option C to include use of anticipatory force for the protection of property or the prevention of crime (Option D)	12.93
PART XIII: CONSULTATION QUESTIONS	13.16
List of questions for consultees
APPENDICES
Appendices dealing with comparative law are available on our website at:
via the link to publications.
APPENDIX A:	Appendix A
PARTIAL DEFENCES TO MURDER
IN AUSTRALIA AND INDIA
Professor Stanley Yeo, Southern Cross University, New South Wales
APPENDIX B:	Appendix B
PARTIAL DEFENCES TO MURDER
IN CANADIAN CRIMINAL LAW
Associate Professor Dale E Ives, University of Western Ontario, Canada
APPENDIX C:	Appendix C
SUMMARY OF IRISH LAW ON:
PROVOCATION
DIMINISHED RESPONSIBILITY
EXCESSIVE DEFENCE
Irish Law Reform Commission
APPENDIX D:	Appendix D
PARTIAL DEFENCES TO MURDER IN NEW ZEALAND
Associate Professor Warren Brookbanks, University of Auckland, New Zealand
APPENDIX E:	Appendix E
PARTIAL DEFENCES TO MURDER IN SCOTLAND
James Chalmers, Professor Christopher Gane and Dr Fiona Leverick
University of Aberdeen, Scotland
APPENDIX F:	Appendix F
PARTIAL DEFENCES TO MURDER IN SOUTH AFRICA
Professor Jonathan Burchell, University of Cape Town, South Africa
APPENDIX G:	Appendix G
RELEVANT STATUTORY PROVISIONS AND PROPOSED PROVISIONS