lc290 Partial Defences to Murder report - Law Commission

Excessive use of force in self-defence
1.15 Our recommendation for the reform of the law of provocation is that it should be
recast in a way that would include those cases which involve excessive use of
force in self-defence where culpability is sufficiently reduced to warrant a partial
defence. Accordingly, for the reasons that we elaborate in Part 4 of this report,
we do not recommend a specific separate partial defence to murder based
on the excessive use of force in self-defence.
Diminished responsibility
1.16 For the reasons which we set out in Part 5 of this report, we recommend that for
as long as the law of murder remains as it is, and conviction carries a
mandatory sentence of life imprisonment;
(1) there should be a partial defence of diminished responsibility which
would reduce what would otherwise be a conviction of murder to
one of manslaughter;
(2) there be no change to section 2 of the 1957 Act. 13
1.17 One of the matters which would be considered were there to be a full review of
murder is whether there should continue to be a partial defence of diminished
responsibility and if so, how it might be formulated. As we explain in Part 5 we
are not persuaded that the acknowledged infelicities of the current formulation
presently cause injustice in practice. We are not persuaded that implementing
any of the alternative formulations we have considered would sufficiently improve
the law to make it worth interfering with the present infelicitous, but workable,
formulation. Indeed, merely because they would be novel, implementation might
give rise to unhelpful uncertainty. A full review of the whole law of murder would
provide the opportunity to consider such matters from scratch. In order to “kick
start” such a process were it to come about, we put forward for consideration in
the course of such a full review of murder a formulation of diminished
responsibility which seems to us to have emerged from the consultation process
as a possible option:
A person, who would otherwise be guilty of murder, is not guilty of
murder but of manslaughter if, at the time of the act or omission causing
death,
(1) that person’s capacity to:
(a) understand events; or
(b) judge whether his actions were right or wrong; or
13 Section 2 of the Homicide Act 1957 states: “(1) Where a person kills or is party to the killing
of another, he shall not be convicted of murder if he was suffering from such 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) as substantially impaired his mental
responsibility for his acts and omissions in doing or being a party to the killing. …”
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