lc290 Partial Defences to Murder report - Law Commission

5.99 The preponderant view was that the two partial defences rest on entirely different
moral bases and the fact that they my be run together on occasions is not a
reason for merging them. The jury can understand the difference and apply them
separately. The contrary view 105 focused on the complicated directions which
have to be given when they are run in tandem, each supported by relevant
psychiatric evidence but with a different burden of proof in each case.
5.100 The preponderant view was stated succinctly by one consultee:
The moral basis of each is different. The basis of provocation is the
fact that the victim behaved outrageously towards the defendant,
which makes the defendant’s failure to control himself less bad than
it would otherwise have been. It is not, and should not be, that the
victim’s behaviour has affected his mental state so as to reduce or
remove his capacity for self-control. 106
5.101 We agree and do not recommend a single partial defence merging the
partial defences of provocation and diminished responsibility
D. CHILDREN
5.102 We have consulted with two forensic psychiatrists who specialise in cases of
children and young people, Dr Eileen Vizard and Professor Sue Bailey. Their
responses show how deeply unsatisfactory the present law of murder is in
relation to children, including the law relating to diminished responsibility. We
consider that this area needs special attention. Dr Eileen Vizard has suggested
that the definition of diminished responsibility is defective in relation to children
and young people because it omits reference to developmental immaturity.
5.103 This view was also shared by NACRO which criticised Consultation Paper No
173 for failing sufficiently to recognise the distinctive needs of children between
the ages of 10 and 17. It believes that the concepts and terminology currently to
be found in section 2 of the 1957 Act are “entirely ill-suited to the defence of
children”. It makes the same criticism of the different formulations put forward for
consideration in Consultation Paper No 173.
5.104 Mr Peter Glazebrook in his response drew attention specifically to the plight of
the person whose blameworthiness for killing is substantially diminished by
reason of his youth or immaturity.
5.105 Whilst we recognise that there is a case for proposing an amendment to section 2
in relation to children and young people, in our view it is far more desirable that
there should be a wider examination of the law of murder as it applies to children
213, R Mackay & B Mitchell “Replacing Provocation: More on a Combined Plea” [2004]
Crim LR 219.
105 Articulated by the Bar of the Wales and Chester Circuit.
106 See also, J Chalmers “Merging Provocation and Diminished Responsibility: Some
Reasons for Sceptism”[2004] Crim LR 198; J Gardner & T Macklem “No Provocation
Without Responsibility: A Reply to Mackay and Mitchell” [2004] Crim LR 213.
108