lc290 Partial Defences to Murder report - Law Commission

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what extent is the defence accommodating cases which it should not be and to what extent is it failing to accommodate cases which it should be? 5.49 Other than the assertion of gender bias to which reference has already been made, there was little evidence in the responses of a concern that the partial defence of diminished responsibility was in general being applied too widely or too narrowly. At the same time, concerns were expressed that it is a lottery and that the outcome is more dependant on the persuasiveness of the psychiatrists and the advocates, and the degree of sympathy which the jury has for the defendant, than on any objective criteria. The role of psychiatrists 5.50 The evidence we have received suggests that on the whole psychiatrists do not have difficulty in forming and explaining to the jury their reasons for an opinion whether the defendant was suffering from an abnormality of mind within section 2, although that term is broad and not legally defined. 5.51 The role of the psychiatrist is more difficult in relation to the second limb of the section, ie whether the defendant’s abnormality of mind “substantially impaired his mental responsibility for his acts or omissions in doing or being a party to the killing”. It is apparent from Professor Mackay’s study that although a minority of psychiatrists restrict themselves to the first limb of the section, almost 70% express an opinion on that “ultimate question”. The psychiatrists to whom we spoke expressed real reservations about being asked to give evidence about that question, because it is not a matter of medical science, but in practice the forensic process frequently draws them into doing so, implicitly if not explicitly. Consultees’ views on alternative versions of the defence set out in the Consultation Paper 5.52 In Consultation Paper No 173 44 we asked consultees whether they favoured: (1) the present wording of section 2 of the 1957 Act; (2) the alternative formula proposed in the Butler Report: 45 “Where a person kills or is party to the killing of another, he shall not be convicted of murder if there is medical or other evidence that he was suffering from a form of mental disorder as defined in [section 1 of the Mental Health Act 1983, that is, “mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind”] and if, in the opinion of the jury, the mental disorder was such as to be an extenuating 44 Part XIII question 11. 45 Report of the Committee on Mentally Abnormal Offenders (1975) Cmnd 6244; in this Part referred to as “the Butler Report”. 94
circumstance which ought to reduce the offence to manslaughter”; 46 (3) the version proposed by the Criminal Law Revision Committee: 47 “Where a person kills or is party to the killing of another, he shall not be convicted of murder if there is medical or other evidence that he was suffering from a form of mental disorder as defined in [section 1 of the Mental Health Act 1983] and if, in the opinion of the jury,” 48 “the mental disorder was such as to be a substantial enough reason to reduce the offence to manslaughter” 49 (4) the version proposed by the New South Wales Law Reform Commission: “A person, who would otherwise be guilty of murder, is not guilty of murder if, at the time of the act or omission causing death, that person’s capacity to: (a) understand events; or (b) judge whether that person’s actions were right or wrong; or (c) control himself or herself, was so substantially impaired by an abnormality of mental functioning arising from an underlying condition as to warrant reducing murder to manslaughter. “Underlying condition” in this subsection means a pre-existing mental or physiological condition other than of a transitory kind”; 50 (5) a version proposed by Professor Mackay: 51 “A defendant who would otherwise be guilty of murder is not guilty of murder if, at the time of the commission of the alleged offence, 46 Ibid, at para 19.17. 47 Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (1980) Cmnd 7844. 48 Replicating the beginning of the recommendation of the Butler Report. 49 Criminal Law Revision Committee, Fourteenth Report: Offences Against the Person (1980) Cmnd 7844, para 93. In Criminal Law: A Criminal Code for England and Wales (1989) Law Com No 177, clause 56, the Law Commission adopted the Criminal Law Revision Committee’s definition of diminished responsibility with the substitution of “mental abnormality” for “mental disorder”, but the definition of those terms remained identical. 50 New South Wales Law Reform Commission, Report on Partial Defences to Murder: Diminished Responsibility: Report 82 (1997) para 3.43. 51 R D Mackay, “Diminished Responsibility and Mentally Disordered Killers” in Professors A Ashworth and B Mitchell (eds), Rethinking English Homicide Law (2000) 55. 95
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6 August 2004 Law Commission Partia
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THE LAW COMMISSION PARTIAL DEFENCES
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v Paragraph Page The substance of t
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THE LAW COMMISSION Report on a refe
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made known its intention to introdu
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i. gross provocation (meaning words
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(c) control himself, was substantia
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PART 2 THE SCOPE OF OUR CURRENT TER
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each of their Lordships cast doubt
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2.16 A point emphasised by some con
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“the taunted husband” respectiv
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Can we discern anything about the p
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the law of homicide is permeated by
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grievous bodily harm when it is his
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In Canada a person commits murder i
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premeditation, (5) by aggravated br
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that it is safe to release him agai
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professions: Professor Susan Bailey
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3.9 In para 3.163 we refer to the q
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cannot be satisfactorily tackled in
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The provoking conduct 3.25 In Consu
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had any alternative suggestion. Vie
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there is a distinction in moral bla
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EXTREME MENTAL OR EMOTIONAL DISTURB
Page 49 and 50: psychologists, by rhetoricians and
Page 51 and 52: OUR APPROACH TO REFORM OF PROVOCATI
Page 53 and 54: provocation, and that to be gross p
Page 55 and 56: of domestic violence based on the d
Page 57 and 58: (Morgan) 55 suggested that provocat
Page 59 and 60: than merely react to the external s
Page 61 and 62: 3.108 HHJ Stewart QC has commented
Page 63 and 64: practice. Some have said that jurie
Page 65 and 66: etween mere bad temper or excitabil
Page 67 and 68: murder are, by any standards ‘unr
Page 69 and 70: the hardship by stretching the requ
Page 71 and 72: Court upheld his decision. In Smith
Page 73 and 74: 3.152 Nobody pretends that this is
Page 75 and 76: DURESS 3.161 The Law Commission has
Page 77 and 78: defendant’s age and all the circu
Page 79 and 80: matter of principle, from the way t
Page 81 and 82: 4.10 The apparent harshness of the
Page 83 and 84: is an awareness of the possibility
Page 85 and 86: need to be able to demonstrate that
Page 87 and 88: PART 5 DIMINISHED RESPONSIBILITY IN
Page 89 and 90: either Canada or New Zealand. 10 In
Page 91 and 92: diminished responsibility as a defe
Page 93 and 94: 5.21 Second, if the defence is nece
Page 95 and 96: sentence, partly because it was fel
Page 97 and 98: was convicted of manslaughter pursu
Page 99: victim which does not fit neatly wi
Page 103 and 104: 5.55 Conversely, others objected to
Page 105 and 106: A person who would otherwise be con
Page 107 and 108: the Mental Health Act 1983 (and wou
Page 109 and 110: 5.79 The Commission also recommende
Page 111 and 112: Our recommendation 5.86 Our view is
Page 113 and 114: that it need not be the sole cause
Page 115: and young people. This could form a
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