lc290 Partial Defences to Murder report - Law Commission

2.56 The Law Commission, in the Draft Criminal Code of 1989, 64 defined murder in
clause 54(1) as follows:
A person is guilty of murder if he causes the death of another – (a)
intending to cause death; or (b) intending to cause serious personal
harm and being aware that he may cause death, unless sections 56,
58, 59, 62 or 64 applies. 65
2.57 It defined “intention” for the purposes of the Code in clause 18(b) in the following
terms: “A person acts ‘intentionally’ with respect to … a result when he acts either
in order to bring it about or being aware that it will occur in the ordinary course of
events.”
2.58 We have already referred to the Nathan Committee Report. 66 They concluded
that the offence of murder should be defined by statute and that the basis should
be the recommendations of the Law Commission in the Draft Criminal Code, both
in terms of the definition of murder and in the definition of intention. That report
was the subject of a lengthy debate 67 in the House of Lords at the end of which
the House “took note” of it. The record of that debate is, in its own right, a rich
source of wisdom and of a range of views both on the definition of the offence of
murder and on the case for and against the mandatory life sentence for murder.
THE IMPACT OF THE MANDATORY SENTENCE
The difference between a murder and a manslaughter conviction
2.59 Throughout the responses to Consultation Paper No 173 there was a single,
prominent and endless refrain: the partial defences of provocation and diminished
responsibility have as their origin and main purpose the protection of the
defendant from the mandatory death/life sentence for murder. The huge
discrepancy in sentence for a person who succeeds, or fails, in those defences
has generated pressures to expand those defences.
2.60 Even before the passage into law of the Criminal Justice Act 2003 (“the 2003
Act”), the discrepancy in the sentence a person would expect to receive
depending on whether they fell one or other side of the line was massive.
2.61 A life sentence for murder comprises three elements. The first element is a
minimum term during which the convicted murderer must be detained for the
purposes of retribution without any prospect of release. The second, which starts
on the expiry of the first, runs until the parole board decides that the person
safely may be released on licence. The third period runs for the remainder of the
convicted person’s life. During that period the convicted person may be recalled
to prison by administrative act and will be detained there until a decision is taken
64 A Criminal Code for England and Wales (1989) Law Com No 177, vol 1.
65 These sections set out the partial defences contained in the code of diminished
responsibility, provocation, use of excessive force, suicide pact killing and infanticide.
66 Report of the Select Committee on Murder and Life Imprisonment (1988-9) HL 78-I.
67 Hansard (HL) 6 November 1989, vol 512, cols 448-530.
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