lc290 Partial Defences to Murder report - Law Commission

“the taunted husband” respectively) 21 seem to bear out the impact of
premeditation to aggravate and a spontaneous outburst to mitigate the gravity of
the killing. The second variation in scenario C (“the attempted rape/burglary”) 22
further confirms that premeditation is regarded by interviewees as an aggravating
factor. This aggravating feature is also present in the responses to scenario D2
(“the noisy neighbour”) 23 and scenario F (“the argument”). 24 In these scenarios
the carrying of a weapon evidences such aggravating premeditation.
2.24 Premeditation, however, does not always act as an aggravating feature.
Scenario I (“the mercy killing”) 25 is a case where there is not only an intention to
kill but also where the killing is foreseen and, indeed, the subject of previous
discussion. The decisive feature in persuading interviewees to regard this killing
as by far the least blameworthy seems to be that the killing, deliberate and
premeditated as it was, was in response to the victim’s request to die.
INTENTION TO KILL
2.25 This is not directly addressed in the scenarios and so we are cautious about
drawing any firm conclusions about this factor. 26 The use of a lethal weapon,
namely a firearm, discussed under scenario F and present in scenario G (“the
bailiff homicide”), 27 is likely to be an aggravating feature. It is not clear whether
21 Cuckolded: A man whose wife had had a series of affairs with other men, decided to kill her
if she had another affair. Soon afterwards, he discovered she was having a further affair
and he strangled her to death. Psychiatrists reported that he was not mentally ill.
Taunted: Suppose instead that when he discovered she was having an affair he confronted
her and she taunted him about his sexual inadequacy – whereupon he lost his temper and
killed her.
22 Standard version: An Asian woman returned home to find two white men attempting to
rape her 15-year old daughter. She got a knife from the kitchen. The men shouted racist
abuse at her and started to run away. She chased after them and stabbed one of them
several times in the back, killing him.
Second variation: Suppose instead that when the men were attempting to rape the
daughter, rather than chase them the woman waited for her husband to return home and
told him what had happened. He realised who the men were. (1) He took a knife, went to
the home of one of the men and stabbed him to death. Or (2) A week later he saw the
other man in the street and deliberately ran him down in his car, killing him.
23 Suppose instead that the young man was kept awake by his neighbour constantly playing
loud music throughout the night. He had repeatedly asked the neighbour to keep the noise
down. The night before the interview the music started at midnight. He got up, got a knife
from the kitchen, went to the neighbour’s flat and asked him to lower the music. But the
neighbour laughed and the man fatally stabbed him.
24 There was an argument between two men and when one man began punching and kicking
him, the other pulled out a knife and fatally stabbed his attacker with it.
25 A man had nursed his terminally-ill wife for several years but eventually gave in to her
regular requests that he should “put her out of it”, and he smothered her with a pillow.
26 They were drawn up to examine factors which may illuminate cases which may or may not
attract the partial defence of provocation.
27 A man with a wife and three children of school age had been served with an eviction
notice. The house had been his home for 20 years. He had lost his job and fell into
substantial rent arrears. The loss of his job together with the eviction notice made him
depressed. The bailiff arrived to enforce the notice but when he tried to enter the house the
man shot him with a gun he was lawfully entitled to keep.
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