lc290 Partial Defences to Murder report - Law Commission

More documents

Recommendations

Info

(1) Unlawful homicide that would otherwise be murder should instead be manslaughter if the defendant acted in response to (a) gross provocation (meaning words or conduct or a combination of words and conduct which caused the defendant to have a justifiable sense of being seriously wronged); or (b) fear of serious violence towards the defendant or another; or (c) a combination of (a) and (b); and a person of the defendant’s age and of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way. (2) In deciding whether a person of the defendant’s age and of ordinary temperament in the circumstances of the defendant might have acted in the same or a similar way, the court should take into account all the circumstances of the defendant other than matters (apart from his or her age) which bear only on his or her general capacity for self-control. (3) The partial defence should not apply where the provocation was incited by the defendant for the purpose of providing an excuse to use violence, or the defendant acted in pre-meditated desire for revenge. (4) A person should not be treated as having acted in premeditated desire for revenge if he or she acted in fear of serious violence, merely because he or she was also angry towards the deceased for the conduct which engendered that fear. (5) A judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply. 3.16 We emphasised that this was not put forward as a statutory formula. Rather, we were seeking to identify the principles which should govern any legislative reform. If those principles were accepted, the drafting of legislation would be a matter for Parliamentary Counsel. 3.17 We had 146 written responses to Consultation Paper No 173 and 30 responses to our provisional conclusions. THE WIDER LAW OF MURDER 3.18 Many consultees have argued that there is a need for a broader review of the law of murder, and that the problems associated with the defence of provocation 32
cannot be satisfactorily tackled in isolation from other parts of the law of murder. We agree. 6 3.19 Different systems of criminal law have different ways of grading homicides, but our law with its broad definition of murder, mandatory sentence and patchwork partial defences is a product of piecemeal development and reforms, rather than systematic thought. The expansion of provocation over the past half century can be seen as an attempt by courts and juries to avoid a conviction of murder with a mandatory life sentence in cases where the court has had some degree of sympathy for the defendant. A reformulation of provocation, without regard to the surrounding law of murder, would not be satisfactory in the long term and would leave the law still subject to the same pressures as have led to the past expansion of provocation. THE MAJOR PROBLEMS WITH PROVOCATION 3.20 There was widespread dissatisfaction among consultees both with the theoretical underpinning of the defence of provocation and with its various component parts. It is not underpinned by any clear rationale. There is widespread agreement that the concept of provocation has become far too loose, so that a judge may be obliged to leave the issue to the jury when the conduct and/or the words in question are trivial. The concept of loss of self-control has proved to be very troublesome. The supposed requirement of a sudden and temporary loss of selfcontrol has given rise to serious problems, especially in the “slow burn” type of case. There is much controversy about the supposed objective test (that the provocation was enough to make a reasonable person do as the defendant did), which has been interpreted by the majority of the House of Lords in Smith (Morgan) 7 in a way that may enable a defendant to rely on personal idiosyncrasies which make him or her more short tempered than other people. Rationale of the defence 3.21 The rationale underlying the defence of provocation is elusive. As we said in Consultation Paper No 173, 8 a study of the cases and textbooks (including particularly Provocation and Responsibility (1992) by Dr Jeremy Horder) 9 suggests that the doctrine has never been truly coherent, logical or consistent. At the time of the Homicide Act 1957 there was theoretically an excusatory rationale of sorts, namely that the defendant had suddenly and temporarily lost his or her self-control as a result of provocation which might have caused a reasonable person to do the same. However, this rationale did not bear too close scrutiny, particularly in relation to the requirement of loss of self-control (to which we will return). 6 We discuss the need for a broader review in Part 2 and do not repeat the arguments here. 7 [2001] 1 AC 146. 8 Para 1.23. 9 Dr Horder is among those to whom we are particularly grateful for his help in the course of this project. 33
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 and 30: In Canada a person commits murder i
Page 31 and 32: premeditation, (5) by aggravated br
Page 33 and 34: that it is safe to release him agai
Page 35 and 36: professions: Professor Susan Bailey
Page 37: 3.9 In para 3.163 we refer to the q
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
Page 105 and 106:
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
show all

lc290 Partial Defences to Murder report - Law Commission

You also want an ePaper? Increase the reach of your titles

Delete template?

Save as template?