lc290 Partial Defences to Murder report - Law Commission

the Mental Health Act 1983 (and would exclude any temporary alteration of
mental state caused by drugs).
5.72 The proponents of the first version intended the expression “abnormal state of
mind” to be capable of being given a very broad interpretation. They said:
What we have in mind are people who were (for example) physically
and mentally exhausted from over work, disorientated by prolonged
lack of sleep, or distracted by shock or grief. That people in these
states are not really normal, and not to be judged as strictly as
others, is reflected in a range of everyday sayings and expressions:
“she was beside herself with grief”, “he was so tried he did not know
what he was doing”. Even more to the point is the Jewish proverb,
“do not judge a man in his grief”.
The following real situations come to mind: the parent (e.g. Doughty)
who has not slept for nights because of a crying baby; the spouse
who thinking, (s)he was happily married, discovers that the other
spouse has been unfaithful for years and is about to leave with the
lover – a situation which has sometimes led to the deserted parent
killing their children and then committing suicide; or a parent who
learns that the children have all been killed in an accident.
Prolonged deprivation of sleep produce[s] psychological effects that
can cause people to act strangely and out of character – and so, I
believe, can extreme shock and grief.
5.73 We are troubled by such a broad approach.
5.74 The distinction between what is normal and abnormal is one of degree and can
be difficult to draw. The requirement of a medically recognisable basis provides
both a doctrinal justification (that a person suffering a medically recognisable
abnormality of mind lacks full responsibility for his or her acts) and a practical
limitation on the ambit of the defence. Without it, there would be a serious risk of
an “evaluative free for all” such as some commentators describe existing in
provocation post Smith (Morgan). 78 Whilst the focus of the argument for such an
approach might be the young parent who is driven to exhausted distraction by a
crying baby we can see no reason why such a defence might not, consistently, be
argued for where an insomniac, who is having a hard time at work, deliberately
kills another motorist who cuts him up on the way home. The jury might feel more
sympathetically disposed to one than the other, but we cannot see a principled
test for differentiating between them. The problems are similar to those which we
have discussed in relation to “extreme emotional and mental disturbance”
(EMED) and we do not see a satisfactory solution if diminished responsibility
were to be extended in the manner suggested.
5.75 A person who batters a child from distracted exhaustion may do so on an isolated
occasion or regularly. If the fact that it happened out of distracted exhaustion
should be a partial defence, in principle that should be so even if something
similar had happened before. To many it would be abhorrent that such a defence
78 [2001] 1 AC 146.
101