lc290 Partial Defences to Murder report - Law Commission

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Professor Mackay’s study of diminished responsibility cases 5.83 As we have stated we are grateful to Professor Mackay and the Nuffield Foundation for making available to us the results of his extensive study of diminished responsibility cases. His paper is published as appendix B to this Report. 5.84 The conclusion which we draw from this study is that, whilst there are some cases which may cause some surprise on the limited facts available, the picture which emerges is that the partial defence seems in the main to be reasonably applied by the courts and by juries. This study provides no evidence to support any contention that the defence should be drawn in such a way as to make it significantly broader or narrower in terms of the outcomes achieved. Diminished responsibility is readily accepted or succeeds where there is a clear psychosis. In other cases (such as depression) the success of the plea seems to be closely related to whether there is an established prior medical condition and its severity. Alcohol, drugs and diminished responsibility 5.85 In Consultation Paper No 173 we set out briefly the essential elements of the relationship between the voluntary consumption of alcohol and drugs and the defence of diminished responsibility. 89 We considered, respectively, the way in which the courts have approached the questions whether alcoholism may be categorised as an abnormality of mind and the impact of the voluntary consumption of alcohol on the availability of the defence based on an abnormality of mind based on a pre-existing mental disorder. The law in connection with the latter is clear and satisfactory following the House of Lords decision in Dietschmann. 90 The law in respect of the former remains problematic. As we observed, 91 the public policy is clear, namely if a person voluntarily takes a drink, knowing or believing that it will result in an uncontrollable craving for more alcohol, then the defence of diminished responsibility will not be available. The Court of Appeal in the case of Tandy 92 approved the direction of the trial judge in that case which had focused on whether the first drink of the day had been taken voluntarily or involuntarily. If the former then the defence was not available. Whilst approving the policy, we saw force in academic criticism of that focus as perhaps unduly artificial and restrictive. 93 There was little comment by consultees about this issue. 94 In our view, to the extent that it remains a problem, it is on the margins and capable of being resolved by judicial development which might reflect the public policy without necessarily focussing exclusively on the first drink of the day. 89 Paras 7.71 - 7.90. 90 [2003] 1 AC 1209. 91 Consultation Paper No 173 para 7.82. 92 [1989] 1 WLR 350. 93 Consultation Paper No 173 para 7.82. 94 Only one consultee, HHJ James Stewart QC made express reference to this problem. 104
Our recommendation 5.86 Our view is that for the time being, and pending any full consideration of murder, section 2 should remain unreformed. There appears to be no great dissatisfaction with the operation of the defence and this is consistent with our consideration of the results of Professor Mackay’s investigation of the defence in practice. To the extent that there is concern that certain defendants are forced to adopt the partial defence of diminished responsibility when their true defence is that they acted out of fear of future violence, our recommendations in respect of provocation would meet that concern more directly than tinkering with diminished responsibility. To the extent that there is some concern that the defence operates overly sympathetically to men who kill their partners, the evidence does not support that concern. 5.87 There is no substantial support for any of the alternative formulations which we canvassed. It would be wrong for us to make a recommendation which might simply give rise to a round of appellate hearings and which would not significantly improve this area of the law. The burden of proof 95 5.88 A small majority of consultees who addressed this issue was in favour of the defence only bearing an evidential burden. 96 The judiciary was evenly split 97 but the professions were in favour of retaining the current arrangement. 98 5.89 The arguments in favour of placing only an evidential burden on the defence arose primarily from a perceived need for consistency between the two partial defences of provocation and diminished responsibility (particularly where, post Smith (Morgan), there may be considerable overlap in the relevant evidence to which the jury may be directed to apply different burdens of proof), rather than from instances of perceived injustice. 99 5.90 The arguments on the other side focused on the fact that the defence was one where the matters relied on were peculiarly in the hands of the defence. In contrast to provocation, the defence depends not on external facts which might be investigated and challenged independently of the defendant but on the defendant’s state of mind, a matter which can only be investigated with his cooperation. Furthermore, even where the medical evidence to support the defence is weak, it might be very difficult for the jury to conclude that the defence had been disproved to the criminal standard because of the limitations of the 95 In Lambert, Ali and Jordan [2002] QB 1112 the Court of Appeal held that the imposition of the burden of proof on the defendant was compatible with the presumption of innocence contained in Article 6(2) of the European Convention on Human Rights. 96 33 for, 24 against. 97 12 for, 12 against. 98 7 for, 4 against. 99 One judicial consultee suggested that the resolution of this dilemma would be to require the defence to bear the legal burden of establishing each of the partial defences. 105
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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
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OUR APPROACH TO REFORM OF PROVOCATI
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provocation, and that to be gross p
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of domestic violence based on the d
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(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 and 102: circumstance which ought to reduce
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: 5.79 The Commission also recommende
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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lc290 Partial Defences to Murder report - Law Commission

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