lc290 Partial Defences to Murder report - Law Commission

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iv Paragraph Page PART 3:PROVOCATION 3.1 30 Structure of this Part 3.1 30 Consultation paper 3.13 31 Provisional conclusions 3.15 31 The wider law of murder 3.18 32 The major problems with provocation 3.20 33 Rationale of the defence 3.21 33 The provoking conduct 3.25 35 Sudden and temporary loss of self-control 3.26 35 The reasonable person test 3.31 36 Abolition or reformulation of provocation? 3.32 37 Extreme mental or emotional disturbance (EMED) 3.47 41 Our approach to reform of provocation 3.60 45 Rationale of provocation 3.63 45 Provocation: How to reshape it 3.65 46 The trigger: Gross provocation 3.68 46 “Caused” the defendant to have … a sense of being seriously wronged 3.69 46 “Justifiable” sense of being seriously wronged 3.70 47 Does the provocation need to emanate from the deceased? 3.72 47 Does the defendant need to be the sole or immediate sufferer from the provocation? 3.73 48 The impact on domestic violence 3.75 48 “Gross provocation” need not involve a risk of physical violence3.79 49 The trigger: Response to fear 3.85 50 The trigger: Combination of gross provocation and fear 3.104 54 The objective test 3.109 55 Exclusion of considered revenge 3.135 62 Exclusion of self-induced provocation 3.138 63 Role of judge and jury 3.141 64 Accident or mistake 3.153 67 Duress 3.161 69 Excessive force in self-defence 3.163 69 Merger of provocation and diminished responsibility into a single Defence 3.164 69 Burden of proof 3.167 70 Recommendations 3.168 70 PART 4: EXCESSIVE FORCE IN SELF DEFENCE 4.1 72 Introduction 4.1 72 The defence of self-defence 4.5 73 The case form some form of partial defence to murder which is rooted in a response based on fear 4.17 77 Different sources of concern 4.17 77
v Paragraph Page The substance of these concerns 4.19 78 The threatened householder 4.19 78 The abused person who kills 4.20 78 Conclusion 4.25 79 The reasons for not recommending a separate partial defence of excessive use of force in self-defence 4.27 80 PART 5: DIMINISHED RESPONSIBILITY 5.1 81 Introduction 5.1 81 A. Abolish or retain the defence? 5.9 83 Retention of the defence as long as the mandatory life sentence is retained 5.9 83 Retention of the defence even if the mandatory sentence of life imprisonment for murder were to be abolished 5.12 84 Some introductory comments 5.15 84 Arguments in favour of retention of the defence of diminished responsibility 5.18 85 Reservations expressed by those who favour retention of the defence 5.23 88 The pathologising effect of the defence 5.23 88 Evidencial concerns 5.29 89 A discriminatory defence? 5.32 90 Arguments against retention of the defence of diminished Responsibility 5.43 91 The response of the Royal College of Psychiatrists 5.44 92 Conclusion 5.47 93 B. Reformulation of the defence 5.48 93 Introduction 5.48 93 The role of psychiatrists 5.50 94 Consultees’ views on alternative versions of the defence set out in the Consultation Paper 5.52 94 The pervasive “ought to be reduced to manslaughter” test 5.54 96 The Scottish Law Commission 5.57 97 Reformulation of the defence suggested by consultees 5.64 99 Can the current formulation in section 2 be improved? 5.81 103 Professor Mackay’s study of diminished responsibility cases 5.83 104 Alcohol drugs and diminished responsibility 5.85 104 Our recommendation 5.86 105 The burden of proof 5.88 105 A sign post for the future 5.93 106 C. Merger of provocation and diminished responsibility into a single defence 5.98 107 D. Children 5.102 108
Page 1 and 2: 6 August 2004 Law Commission Partia
Page 3: THE LAW COMMISSION PARTIAL DEFENCES
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 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
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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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