lc290 Partial Defences to Murder report - Law Commission

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his mental functioning was so aberrant and affected his criminal behaviour to such a substantial degree that the offence ought to be reduced to one of manslaughter;” 52 (6) an amended version which would provide: “Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) and that abnormality of mind was a significant cause of his acts or omissions in doing or being a party to the killing”; (7) some other version? 5.53 Our analysis of responses revealed that none of the versions which we put forward for consideration attracted widespread support. Fifty-five consultees chose one or more of the versions. 53 Versions (4) and (5) (the New South Wales Law Reform Commission version (NSW) and Professor Mackay’s version) attracted very little support. 54 Versions (2) and (3) (the Butler Committee version and the Criminal Law Revision Committee version) attracted a higher level of support. 55 Version (1) (the current formulation) was generally favoured by women’s organisations 56 on the basis that it is the least narrowly defined medical version. 57 Version (6) (our own formulation) attracted some support amongst the judiciary. 58 The pervasive “ought to be reduced to manslaughter” test 5.54 One common feature of versions (2), (3), (4) and (5) is that the ultimate question the jury has to decide is whether the offence “ought” to be reduced to manslaughter. This element in these versions appealed to some whose view was that the essence of the defence involves the jury making a moral choice. Version (3) was particularly favoured by two consultees because it introduces a societal test and is akin to the test set by Lord Hoffmann in Smith (Morgan). 59 52 Ibid, at p 83. 53 Mr Justice Curtis, Mr Justice Penry-Davey and Sally Cunningham chose both versions (2) and (3). 54 Each of these versions attracted the support of four consultees. The two versions are very different from each other. The former stresses the accused’s mental capacity and it restricts the defence to “a notion of a pre-existing impairment requiring proof by way of expert evidence, which impairment is of a more permanent nature than a simply temporary state of heightened emotions”. Professor Mackay’s version incorporates neither of those features. 55 7 and 13 consultees respectively. 56 Middlesborough Domestic Violence Forum; Justice for Women; Southall Black Sisters. 57 11 consultees favoured retention of the current formulation. 58 In total 11 consultees supported this version. 59 [2001] 1 AC 146. 96
5.55 Conversely, others objected to a test that would involve the jury judging whether the offence should be reduced from murder to manslaughter because it is “very imprecise and subjective” 60 and gives the jury “a unstructured discretion”. 61 5.56 We share those objections. To direct a jury that mental abnormality reduces murder to manslaughter if sufficiently serious that it ought to do so, leaves the jury to set its own standard for deciding what ought to reduce murder to manslaughter. The Scottish Law Commission 5.57 In June of this year the Scottish Law Commission presented its Report on Insanity and Diminished Responsibility. 62 Until the Full Bench decision of the Court of Session in Galbraith v. Lord Advocate (No 2) 63 the law on diminished responsibility in Scotland was set out in the direction to the jury of Lord Alness in HM Advocate v. Savage 64 as follows: It is very difficult to put it in a phrase, but it has been put in this way: that there must be aberration or weakness of mind; that there must be some form of mental unsoundness; that there must be a state of mind which is bordering on though not amounting to insanity; that there must be a mind so affected that responsibility is diminished from full responsibility to partial responsibility-- in other words, the prisoner in question must be only partially accountable for his actions. And I think one can see running through the cases that there is implied … that there must be some form of mental disease. 65 5.58 Galbraith indicated a major change in judicial approach. The formula in Savage was not to be read in a narrow sense. It was not necessary that all the criteria in that formula should be present. Moreover, although the plea had to be based on some form of mental abnormality, a wide range of conditions could constitute diminished responsibility and they need not be bordering on insanity. The court in Galbraith ruled that diminished responsibility required the existence of an abnormality of mind which had the effect that the accused’s ability to determine or control his actions was substantially impaired. The court excluded from the scope of the plea (i) any condition brought on by the voluntary consumption of drink or drugs and (ii) psychopathic personality disorder. 66 5.59 It formulated the defence as follows: 60 HHJ Robert Taylor. 61 Mr Justice Pitchers stated that he dislikes directions to the jury which “give an undue normative role to their decisions” and Mr Justice Stanley Burnton stated that he dislikes any definition that “involves the jury in a value judgment”. 62 Scot Law Com No 195. 63 2002 JC 1. 64 1923 JC 49. 65 Ibid, at p 51. 66 Scot Law Com No 195 para. 3.3. 97
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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
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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 and 100: victim which does not fit neatly wi
Page 101: circumstance which ought to reduce
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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