lc290 Partial Defences to Murder report - Law Commission

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greed or other despicable reasons, [or] deviously or cruelly or with means capable of causing widespread mayhem or in order to enable or to coverup the commission of another crime.” This offence carries a mandatory life sentence. (5) Italy has an offence of simple intentional homicide supplemented by certain identified aggravating circumstances. The difference between the basic and the aggravated offence is the different minimum lengths of a fixed term of imprisonment. In every case the term is a maximum of 30 years. (6) In Luxembourg there is a distinction between voluntary and involuntary homicide. Within voluntary homicide, meurtre requires an intention to kill whereas homicide voluntaire does not. Where there is both an intention to kill and premeditation the offence is assassination. There are also distinctions based on the means of killing, the circumstances of the killing and the status of the victim. The sentencing structure operates by specifying a particular sentence for a type of crime but it can be reduced either compulsorily, where certain extenuating circumstances are established, or at the judge’s discretion for other extenuating circumstances. (7) In Malta there is a distinction between wilful, justifiable and involuntary homicide. “Wilful” homicide requires malice and an intent to kill or to put the life of the other in manifest jeopardy. It carries a mandatory life sentence. (8) In the Netherlands there is a distinction between intentionally taking a person’s life and causing the death of another. Within each of these divisions there are subcategories. Within the former there are distinctions between: (a) a person who acts with full knowledge; (b) a person who must have foreseen that the primary though undesired result (death) was inevitable; and (c) a person who is indifferent whether the primary, though undesired, result (death) will follow or not. The sentence is at large. (9) In Norway the main criterion for distinguishing is between negligence, intent or premeditation. The main use of this distinction is for sentencing. The sentence for murder ranges from a minimum of 6 months to 21 years. Sentences for premeditated killing are on average 15.2 years and for intentional killings, 7.3 years. (10) In Spain there are three categories of intentional homicide: Parricide, where the victim is a blood or marriage relative, carries a penalty of between 20 and 30 years. Murder, where the death of the person falls within one of the following circumstances (1) by treachery, (2) for a price, (3) by means of inundation, fire, poison or explosive, (4) with proved 24
premeditation, (5) by aggravated brutality, deliberately and cruelly increasing the pain of the victim, carries a penalty between 26 and 30 years. Homicide where none of these elements are present, carries a penalty between 12 and 20 years. There are also three levels of nonintentional homicide which range from recklessness (penalty six months to six years), to negligence without breaking any rules, for which the penalty is a fine or reprimand. (11) In Sweden there is a distinction between murder and manslaughter. The distinction seems to be a matter for the judge in each case, depending on intentions, motives and the way the defendant acted. The sentence is at large including a discretionary life sentence. (12) In Switzerland the basic offence of meurtre is for intentional killing and carries a sentence of at least 5 years, up to a maximum of 20. There is an aggravated offence of assassination which is meurtre plus one of a number of aggravating features: premeditation, depravity, where the defendant is particularly dangerous by reference to the means used, the level of cruelty or treachery, the motives, relationship with the deceased, or the presence or absence of remorse. This offence carries a presumptive life sentence subject to extenuating circumstances. (13) In Turkey homicide requires intent to kill, defined as a willing and conscious desire to commit homicide and to expect its consequences. The penalty for the basic offence is 24-30 years. The offence can be aggravated based on the identity of the victim: family, or member of the National Assembly or civil servant on duty and the motive (premeditation in pursuit of or avoiding detection of crime) 62 . Matters such as provocation are taken into account in deciding punishment. Previous attempts at reform 2.55 The Criminal Law Revision Committee considered the law of murder in 1980. 63 It concluded that it should be murder (a) if a person with the intent to kill causes death; or (b) if a person causes death by an unlawful act intended to cause serious injury and known to him to involve a risk of causing death. They also included as an optional additional basis for the offence, which would cover the terrorist case referred to above, that it should be murder if a person causes death by an unlawful act intended to cause fear (of death or serious injury), and known to the defendant to involve a risk of causing death. 62 When the Nathan Committee reported, the death penalty was in force in Turkey for certain aggravated murders – if the victim was a member of the National Assembly or civil servant on duty and if the murder was premeditated or committed in pursuit of or avoiding detection of crime. Since then, Turkey has abolished the death penalty for all offences. See further R Badinter, “Moving towards universal abolition of the death penalty” in Death Penalty – Beyond Abolition (2004) p 7 at p 9. 63 Fourteenth Report: Offences Against the Person (1980) Cmnd 7844. 25
Page 1 and 2: 6 August 2004 Law Commission Partia
Page 3 and 4: THE LAW COMMISSION PARTIAL DEFENCES
Page 5 and 6: v Paragraph Page The substance of t
Page 7 and 8: THE LAW COMMISSION Report on a refe
Page 9 and 10: made known its intention to introdu
Page 11 and 12: i. gross provocation (meaning words
Page 13 and 14: (c) control himself, was substantia
Page 15 and 16: PART 2 THE SCOPE OF OUR CURRENT TER
Page 17 and 18: each of their Lordships cast doubt
Page 19 and 20: 2.16 A point emphasised by some con
Page 21 and 22: “the taunted husband” respectiv
Page 23 and 24: Can we discern anything about the p
Page 25 and 26: the law of homicide is permeated by
Page 27 and 28: grievous bodily harm when it is his
Page 29: In Canada a person commits murder i
Page 33 and 34: that it is safe to release him agai
Page 35 and 36: professions: Professor Susan Bailey
Page 37 and 38: 3.9 In para 3.163 we refer to the q
Page 39 and 40: cannot be satisfactorily tackled in
Page 41 and 42: The provoking conduct 3.25 In Consu
Page 43 and 44: had any alternative suggestion. Vie
Page 45 and 46: there is a distinction in moral bla
Page 47 and 48: EXTREME MENTAL OR EMOTIONAL DISTURB
Page 49 and 50: psychologists, by rhetoricians and
Page 51 and 52: OUR APPROACH TO REFORM OF PROVOCATI
Page 53 and 54: provocation, and that to be gross p
Page 55 and 56: of domestic violence based on the d
Page 57 and 58: (Morgan) 55 suggested that provocat
Page 59 and 60: than merely react to the external s
Page 61 and 62: 3.108 HHJ Stewart QC has commented
Page 63 and 64: practice. Some have said that jurie
Page 65 and 66: etween mere bad temper or excitabil
Page 67 and 68: murder are, by any standards ‘unr
Page 69 and 70: the hardship by stretching the requ
Page 71 and 72: Court upheld his decision. In Smith
Page 73 and 74: 3.152 Nobody pretends that this is
Page 75 and 76: DURESS 3.161 The Law Commission has
Page 77 and 78: defendant’s age and all the circu
Page 79 and 80: matter of principle, from the way t
Page 81 and 82:
4.10 The apparent harshness of the
Page 83 and 84:
is an awareness of the possibility
Page 85 and 86:
need to be able to demonstrate that
Page 87 and 88:
PART 5 DIMINISHED RESPONSIBILITY IN
Page 89 and 90:
either Canada or New Zealand. 10 In
Page 91 and 92:
diminished responsibility as a defe
Page 93 and 94:
5.21 Second, if the defence is nece
Page 95 and 96:
sentence, partly because it was fel
Page 97 and 98:
was convicted of manslaughter pursu
Page 99 and 100:
victim which does not fit neatly wi
Page 101 and 102:
circumstance which ought to reduce
Page 103 and 104:
5.55 Conversely, others objected to
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A person who would otherwise be con
Page 107 and 108:
the Mental Health Act 1983 (and wou
Page 109 and 110:
5.79 The Commission also recommende
Page 111 and 112:
Our recommendation 5.86 Our view is
Page 113 and 114:
that it need not be the sole cause
Page 115:
and young people. This could form a
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lc290 Partial Defences to Murder report - Law Commission

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