lc290 Partial Defences to Murder report - Law Commission

(c) control himself,
was substantially impaired by an abnormality of mental
functioning arising from an underlying condition and
(2) the abnormality was a significant cause of the defendant’s
conduct in carrying out or taking part in the killing.
(3) “Underlying condition” means a pre-existing mental or
physiological condition other than of a transitory kind.
1.18 For the reasons we set out in Part 3 of this report, 14 we do not recommend a
single partial defence merging the partial defences of provocation and
diminished responsibility.
THE OTHER ELEMENTS TO THIS REPORT
Empirical research and background material
1.19 We have, throughout this project, recognised that it would be inadequate for us to
adopt an approach which was overly technical or legally purist. The law of murder
and the circumstances in which the partial defences of provocation and
diminished responsibility may arise are not only difficult conceptually but are
hugely important and of great public interest. We therefore determined that we
would seek to inform ourselves of the way in which the law has developed
historically, the way it is being applied in practice and the way in which the public,
if given the opportunity to consider the issues, might perceive the various
circumstances in connection with which the boundaries between murder and
manslaughter might be drawn.
1.20 In conducting this exercise we are greatly indebted to Professors Ronnie Mackay
and Barry Mitchell and to the Nuffield Foundation. Professor Mackay and the
Foundation have generously made available to us the fruits of his current
research into the ways in which the law of provocation and diminished
responsibility are working. We publish his two papers on these two topics as
Appendices A and B to this report and his work has been invaluable. Professor
Mitchell has undertaken a qualitative public attitude survey based on responses
to a series of constructed cases which we are publishing as Appendix C. This too
has been illuminating and has influenced our work.
1.21 We considered it necessary in order to undertake this project properly that we
have the best information possible of how the law operates in practice. To this
end we thought it important to request access to files of those who have been
convicted of murder and are serving a life sentence or are released on licence.
The Lifer Review and Recall Section at the Home Office has given us generous
access to those files. This has been particularly helpful in that, from the Judge’s
Report in each case, we have been able to identify the essential features of these
cases. The files to which we have had access comprise a substantial proportion
14 Paras 3.164 – 3.166.
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