lc290 Partial Defences to Murder report - Law Commission

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