lc290 Partial Defences to Murder report - Law Commission

this goes to an intention to kill, or to the violence being premeditated. Conversely,
in scenario F the interviewees responded to the possibility that the frenzied
nature of the attack, involving multiple stab wounds, evidenced an intention to kill
which, if present, would have made that scenario more grave.
DEFENCE OF PROPERTY AS OPPOSED TO THE PERSON
2.26 When a direct comparison is drawn, as in scenario C, between a killing in
response to an attempted rape, and killing in response to a burglary, it is clear
that the latter killing is regarded as more blameworthy. Those who kill in response
to such a serious and degrading personal attack as rape are regarded with a
great deal more sympathy than those who respond to an attack on their property.
On the other hand, in scenario G, the fact that the killer was responding to a
threat to his property was regarded as a matter of some limited mitigation.
THE VULNERABILITY OF THE VICTIM
2.27 The response to scenario D (“the baby killing”) 28 seems to indicate that killing a
child, in particular a helpless baby, involves a breach of trust regarded as
particularly grave. However, counteracting that element of gravity, there is a
degree of sympathy for the young inexperienced parent who is driven, apparently
on one occasion, to act in desperation. 29
2.28 In scenario G the fact that the victim is an innocent person trying to do his job by
enforcing the law is regarded as aggravating, though other factors personal to the
defendant operate in the contrary direction.
Conclusions
2.29 Whilst we can identify aggravating factors which interviewees are generally
agreed upon, it is rare that such a factor will be treated alone as determinative of
the perceived level of gravity of the offence. It is much more likely that other
circumstances, which operate as mitigating factors, will also inform the
assessment of gravity, making the overall perception a matter of balance and
nuance.
2.30 It is, in our view, clear that informed public reaction recognises that conduct,
which falls within the present offence of murder, encompasses a wide range of
culpability.
28 A 19-year old man was the father of a young baby who constantly cried. One night the
man, who had an important job interview the next day, was kept awake by the baby crying.
He went into her bedroom and violently shook her and hit her. The baby died.
29 The facts of this scenario are similar to the case of Michael Bennett [2004] 1 Cr App R (S)
65. He was convicted by a jury, on a charge of murder, of the manslaughter of his young
son (3 ½ months old) on the grounds of provocation caused by frustration at the child’s
crying. The Court of Appeal upheld his sentence of 9 years imprisonment.
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