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The Law Commission

(LAW COM No 290)

PARTIAL DEFENCES TO MURDER

Report on a reference under section 3(1)(e) of the Law Commissions Act 1965

Presented to the Parliament of the United Kingdom by the Secretary of State
for Constitutional Affairs and Lord Chancellor by Command of Her Majesty

August 2004

Cm 6301

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 Commissioners are:

The Honourable Mr Justice Toulson, Chairman

Professor Hugh Beale QC, FBA

Mr Stuart Bridge

Professor Martin Partington CBE

Judge Alan Wilkie QC

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

The terms of this report were agreed on 2 August 2004.

The text of this report is available on the Internet at:

http://www.lawcom.gov.uk

CONTENTS

	Paragraph
PART 1: INTRODUCTION AND SUMMARY	1.1
Terms of reference and the consultation process	1.1
A summary of our recommendations	1.12
Recommendation for further work by the Law Commission	1.12
Provocation	1.13
Excessive use of force in self-defence	1.15
Diminished responsibility	1.16
The other elements to this report	1.19
Empirical research and background material	1.19
History of provocation and diminished responsibility	1.22
PART 2: SCOPE OF OUR CURRENT TERMS OF REFERENCE AND OF POSSIBLE FUTURE WORK	2.1
Introduction	2.1
The outcome of the consultation	2.9
The questions we posed	2.9
Response to issues not raised by us	2.12
Conclusions	2.17
Public perceptions of murder	2.19
Conclusions to be drawn from Professor Mitchell's research	2.22
Can we ascertain any features which place an offence at the more heinous end of the spectrum?	2.23
Conclusions	2.29
Can we discern anything about the public perception of the need for a mandatory life sentence?	2.31
Conclusions	2.35
The shifting sands of the law of murder	2.36
Malice aforethought	2.37
The shifting sands beneath the problematic foundation	2.41
Other jurisdictions	2.53
Previous attempts at reform	2.55
The impact of the mandatory sentence	2.59
The difference between a murder and a manslaughter conviction	2.59
The position of children	2.70
Conclusion and Recommendations	2.74
PART 3:PROVOCATION	3.1
Structure of this Part	3.1
Consultation paper	3.13
Provisional conclusions	3.15
The wider law of murder	3.18
The major problems with provocation	3.20
Rationale of the defence	3.21
The provoking conduct	3.25
Sudden and temporary loss of self-control	3.26
The reasonable person test	3.31
Abolition or reformulation of provocation?	3.32
Extreme mental or emotional disturbance (EMED)	3.47
Our approach to reform of provocation	3.60
Rationale of provocation	3.63
Provocation: How to reshape it	3.65
The trigger: Gross provocation	3.68
"Caused" the defendant to have a sense of being seriously wronged	3.69
"Justifiable" sense of being seriously wronged	3.70
Does the provocation need to emanate from the deceased?	3.72
Does the defendant need to be the sole or immediate sufferer from the provocation?	3.73
The impact on domestic violence	3.75
"Gross provocation" need not involve a risk of physical violence	3.79
The trigger: Response to fear	3.85
The trigger: Combination of gross provocation and fear	3.104
The objective test	3.109
Exclusion of considered revenge	3.135
Exclusion of self-induced provocation	3.138
Role of judge and jury	3.141
Accident or mistake	3.153
Duress	3.161
Excessive force in self-defence	3.163
Merger of provocation and diminished responsibility into a single defence	3.164
Burden of proof	3.167
Recommendations	3.168
PART 4: EXCESSIVE FORCE IN SELF DEFENCE	4.1
Introduction	4.1
The defence of self-defence	4.5
The case form some form of partial defence to murder which is rooted in a response based on fear	4.17
Different sources of concern	4.17
The substance of these concerns	4.19
The threatened householder	4.19
The abused person who kills	4.20
Conclusion	4.25
The reasons for not recommending a separate partial defence of excessive use of force in self-defence	4.27
PART 5: DIMINISHED RESPONSIBILITY	5.1
Introduction	5.1
A. Abolish or retain the defence?	5.9
Retention of the defence as long as the mandatory life sentence is retained	5.9
Retention of the defence even if the mandatory sentence of life imprisonment for murder were to be abolished	5.12
Some introductory comments	5.15
Arguments in favour of retention of the defence of diminished responsibility	5.18
Reservations expressed by those who favour retention of the defence	5.23
The pathologising effect of the defence	5.23
Evidencial concerns	5.29
A discriminatory defence?	5.32
Arguments against retention of the defence of diminished Responsibility	5.43
The response of the Royal College of Psychiatrists	5.44
Conclusion	5.47
B. Reformulation of the defence	5.48
Introduction	5.48
The role of psychiatrists	5.50
Consultees' views on alternative versions of the defence set out in the Consultation Paper	5.52
The pervasive "ought to be reduced to manslaughter" test	5.54
The Scottish Law Commission	5.57
Reformulation of the defence suggested by consultees	5.64
Can the current formulation in section 2 be improved?	5.81
Professor Mackay's study of diminished responsibility cases	5.83
Alcohol drugs and diminished responsibility	5.85
Our recommendation	5.86
The burden of proof	5.88
A sign post for the future	5.93
C. Merger of provocation and diminished responsibility into a single defence	5.98
D. Children	5.102
APPENDICES
APPENDIX A: THE PROVOCATION PLEA IN OPERATION	APPENDIX A
APPENDIX B: THE DIMINISHED RESPONSIBILITY PLEA IN OPERATION	APPENDIX B
APPENDIX C: A BRIEF EMPIRICAL SURVEY OF PUBLIC OPINION RELATING TO PARTIAL DEFENCES TO MURDER	APPENDIX C
APPENDIX C: PARTIAL DEFENCES AND DEFENDANTS CONVICTED OF MURDER	APPENDIX D
APPENDIX E: SYNOPSIS OF SAMPLE OF CASES OF FEMALE DEFENDANTS CONVICTED OF MURDER	APPENDIX E
APPENDIX F: THE MODEL PENAL CODE'S PROVOCATION PROPOSAL AND ITS RECEPTION IN THE STATE LEGISLATURES AND COURTS IN THE UNITED STATES OF AMERICA, WITH COMMENTS RE THE PARTIAL DEFENCES OF DIMINISHED RESPONSIBILITY AND IMPERFECT SELF-DEFENCE	APPENDIX F
APPENDIX G: A SOCIOLOGICAL HISTORY OF PROVOCATION AND DIMINISHED RESPONSIBILITY	APPENDIX G
APPENDIX H: PERSONS AND ORGANISATIONS	APPENDIX H

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