lc290 Partial Defences to Murder report - Law Commission

3.22 In Consultation Paper No 173 we invited consultees to consider the moral basis
of a defence of provocation. 10 We discussed possible justificatory and excusatory
bases 11 and we asked the question:
Do consultees consider that, morally speaking:
(1) a killing with the intent required for murder should be
classified as murder notwithstanding any amount of
provocation or loss of self-control; or
(2) there ought to be a partial defence, leading to a
conviction for manslaughter, based:
(a) on the narrower (justificatory) ground; or
(b) on the broader (excusatory) ground? 12
3.23 The views of those consultees who responded to this question were fairly evenly
split between those who considered that provocation should in no circumstances
amount to a partial defence to murder, those who considered that there should be
a partial defence on a narrower (justificatory) ground and those who considered
that there should be a partial defence on a broader (excusatory) ground.
However, that statement needs to be amplified and qualified for two reasons.
First, a good number of respondents were unhappy with our use of the labels
justificatory and excusatory. Secondly, the overwhelming majority of those who
considered that no amount of provocation should ever provide a partial defence
to murder also considered that the abolition of the defence should be conditional
on the abolition of the mandatory sentence.
3.24 In seeking the views of consultees about what should be the underlying basis of a
defence of provocation, if any, we are concerned that we may not have helped by
the way we formulated our reference to excusatory and justificatory bases. But,
however imperfectly the question may have been phrased, it served to produce
helpful arguments. We will return to this subject when we discuss whether there
should be a partial defence of provocation and on what rationale.
10 Paras 12.10 to 12.20.
11 Historically English law distinguished justifiable homicide from excusable homicide, but the
practical significance of the distinction diminished in 1828 on the abolition of forfeiture of a
defendant’s possessions to the Crown, which had previously applied in the case of
excusable but not justifiable homicide. In modern scholarship a good deal has been written
about the concepts of justifactory and excusatory defences. Essentially, justifactory
defences are those which recognise that the conduct was legitimate in the circumstances
e.g. self-defence. Excusatory defences involve recognition that although the conduct was
not legitimate, the actor lacked personal culpability for some reason or another, e.g.
because of a disability.
12 Consultation Paper No 173 para 12.19.
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