lc290 Partial Defences to Murder report - Law Commission

each of their Lordships cast doubt on the usefulness of the concept of “the
reasonable man” which lies at its heart. Following this lead the current specimen
direction on provocation suggested to trial judges by the Judicial Studies Board 7
contains no mention of that concept. Thus, the terms of section 3 are now, in
large measure, effectively ignored and scarcely anyone has a good word for it. If
the section is now amended in accordance with the principles that we
recommend but there is no re-examination of the surrounding law of murder,
there will be similar pressure to expand the reformed defence of provocation or
the defence of diminished responsibility, or both. It may be possible to devise a
formula that could withstand such pressure by making it highly prescriptive.
However, we believe that such a formula would be too rigid and inflexible to be of
use. Whilst we make our recommendations in the belief that the law will be
greatly improved by their adoption, we do not envisage that alone they will make
the law of murder in England and Wales satisfactory.
THE OUTCOME OF THE CONSULTATION
The questions we posed
2.9 Of necessity, consideration of the abolition of provocation and/or diminished
responsibility also required us to have regard to the impact of the abolition of
either of them on the continuation of the mandatory life sentence which presently
applies on any conviction for murder. Accordingly, in Consultation Paper No 173,
we posed certain general questions designed to encourage consultees to
address the reform and the abolition options. 8 On provocation we invited them to
consider: whether the present law was flawed and if so, whether it was beyond
organic reform by the courts; whether it was so flawed that it should be abolished
and whether that would need to be accompanied by abolition of the mandatory
sentence for murder. For diminished responsibility we posed questions on similar
issues. 9
2.10 On provocation the response was overwhelming that the law was flawed to the
extent that it was beyond reform by the courts. A small number of consultees
favoured abolition of provocation regardless of the retention or abolition of the
mandatory life sentence. 10 Approximately twice as many consultees favoured
abolition but only if the mandatory life sentence were also abolished. 11 There was
a third group, about equal in number to the second, who did not favour abolition
but favoured reform. 12
7 Specimen Direction No 51.
8 Part XIII, questions 1 and 3.
9 Part XIII, question 10.
10 1 lay person, 4 judges, 2 individual members of the legal profession, 4 academics, 1
organisation within the criminal justice system and 2 non-governmental organisations
(NGOs).
11 16 judges, 1 individual member of the legal profession, 9 academics, 4 professional bodies
in the criminal justice system, 1 NGO, and 1 psychiatrist.
12 2 lay persons, 10 judges, 3 individual members of the legal profession, 10 academics, 5
professional bodies within the criminal justice system and 3 NGOs.
11