lc290 Partial Defences to Murder report - Law Commission

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.
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