lc290 Partial Defences to Murder report - Law Commission

EXTREME MENTAL OR EMOTIONAL DISTURBANCE (EMED) 32
3.47 Clause 210.3(1)(b) of the MPC provides:
[A] homicide which would otherwise be murder [is manslaughter
when it] is committed under the influence of extreme mental or
emotional disturbance for which there is reasonable explanation or
excuse. The reasonableness of such explanation or excuse shall be
determined from the viewpoint of a person in the actor’s situation
under the circumstances as he believes them to be.
3.48 In Consultation Paper No 173 33 we asked:
Should the concept of “loss of self-control” be retained or
should it be replaced by a test of acting “under extreme
emotional disturbance” or some similar phrase? 34
3.49 A majority of judges and academics were opposed to a test of extreme emotional
disturbance, principally on the ground that it was too vague. However, a
significant number of respondents, including particularly representative bodies of
the legal profession, women’s groups and JUSTICE, thought that a test involving
extreme emotional disturbance would be preferable to a test based on loss of
self-control.
3.50 We have looked at the experience of EMED in the USA, and we have been
greatly helped in this regard by a paper written for us by Professor Sanford
Kadish (Alexander F. and May T. Morrison Professor of Law Emeritus, University
of California). 35 The EMED defence has been a source of controversy in those
states (known as “reform states”) which have adopted the MPC or a version of
it. 36 In particular, controversy has arisen over fundamental aspects of the
defence. One issue concerns the focusing of the requirement for a “reasonable
explanation or excuse” on the extreme emotional disturbance but not the
defendant’s conduct. It is not difficult to imagine circumstances in which there
may be a reasonable explanation for a person being in a very disturbed
32 In places our discussion relates to extreme emotional disturbance (EED). The difference
between these two expressions is that the former includes extreme “mental” disturbance.
The terms are sometimes used interchangeably by commentators on the Model Penal
Code.
33 Para 12.37.
34 In a recent article James Chalmers has suggested that under US case law EED has not, in
substance, proved to be an alternative to loss of self-control but a restatement in different
guise – “Merging Provocation and Diminished Responsibility: Some Reasons for
Scepticism” [2004] Crim LR 198, at p 204.
35 This paper is included in Appendix F to this Report.
36 Of some 34 jurisdictions that revised their criminal codes in the post MPC era none
adopted the MPC proposal as a whole, although 5 adopted it almost whole, omitting the
term “mental”. Those 5 states were Arizona, Arkansas, Connecticut, Kentucky and New
York. About a dozen other states adopted some of the Code’s features but only with
significant alterations, either explicitly requiring a provocative act or rejecting the
subjectivity of “the actor’s situation” standard, or both, and in some other ways.
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