lc290 Partial Defences to Murder report - Law Commission

there is a distinction in moral blameworthiness between over reaction to grave
provocation and unprovoked use of violence.
3.40 A just system of law should reflect this. If it be right that a killing under grave
provocation is made less wicked by that factor, the question whether a distinction
should be drawn in the classification of the offence or at the sentencing stage is
not a matter of simple ethics.
3.41 Some have said that it is unfortunate that one is forced to refer to provocation as
a ‘defence’, when the critical question is whether a killing under provocation
should be categorised as a less grave offence than murder. There is general
agreement that provocation (subject to what is meant by that word) should be
capable of making a significant difference in the sentence passed on the
defendant. That result could be achieved by a variety of routes: by labelling a
killing under provocation as a separate offence; by labelling it as murder, but with
different statutory sentencing provisions for different categories of murder; or by
labelling it as murder with the same sentencing provisions for all cases of murder
and leaving it to the judge to set the appropriate sentence having regard to the
provocation.
3.42 As some consultees have pointed out, the problems about what should or should
not be regarded as provocation would not disappear by abolishing the defence of
provocation, but would be faced at a separate stage of the proceedings. Some,
including Victim Support, consider that there would be real advantages in terms
of justice and transparency if issues of provocation were considered as part of
the sentencing process, if necessary through a Newton hearing. The family would
have an opportunity to counter allegations raised by the defendant against the
deceased and to set the matter in context in a way which is sometimes not
presently possible. The court would then pass sentence based on full information
about any relevant background circumstances, and this process would be more
understandable than the present. We recognise fully the importance that the
public generally and all affected by the criminal justice process should be able to
understand how it works.
3.43 We are also not surprised, as was made clear to us by representatives of both
Victim Support and Support After Murder and Manslaughter (SAMM), that victims’
families are often confused about how it may come about that a person charged
with murder may be convicted of manslaughter, either on a plea accepted by the
prosecution or by a verdict of the jury. The law of murder and manslaughter is
complex because of the way in which it has developed. That is part of the reason
why we believe that it is high time for a wider review of the law. We are also
highly sympathetic to the argument that if an issue of provocation is raised by a
defendant, the rules of evidence and procedure should enable the prosecution to
put before the court any additional relevant material. The problem is not so much
one of admissibility but of ensuring, through rules of procedure and pre-trial case
management, that the nature of the defence is sufficiently disclosed in advance. 27
27 The topic of defence disclosure has been addressed in section 33 of the Criminal Justice
Act 2003.
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