lc290 Partial Defences to Murder report - Law Commission

psychologists, by rhetoricians and philosophers, by classicists and
even by legal scholars. That both brain scientists and philosophers
may now agree that emotion reflects or assists our reasoning
processes tells us something that law, and life, already reflect.
When we see that someone is angry we do not call … [a] psychiatric
expert for a diagnosis, we simply ask “why?” We expect reasons,
and they are typically attributions of wrongdoing and blame. 38
3.53 She goes on to argue:
Conventional understandings of criminal law place defences in two
mutually exclusive categories: as excuse or justification. In the
excuse category are defences, such as insanity, that focus on state
of mind; these defences do not embody judgements that what the
defendant did was ‘right’ or ‘justified’, but that the defendant was
less blameworthy. In the ‘justification’ category are defences, such
as self-defence or necessity, which assume that what the defendant
has done, overall, was ‘right’ or ‘warranted’. Traditionally, ‘excuse’
and ‘justification’ have been viewed as mutually exclusive
categories: a defendant cannot both be excused and justified
because an excused action presupposes that the action was wrong
and therefore unjustified. This assumes, however, a crucial feature
of the inquiry – that we are evaluating acts and acts alone. To say
that an act cannot be both justified and excused is to say something
about acts, not emotions. It is perfectly consistent to say that one’s
emotions are justified or warranted even when one’s acts are not.
Indeed, as I have noted above, we may easily say that passionate
killings are not justified even if we believe that the emotions causing
some killings are, in some sense, the ‘right’ emotion. 39
3.54 Provocation, she argues, is on the cusp because it applies (or should apply) in a
case where the defendant’s sense of outrage is warranted, but not the manner or
scale of reaction. She terms this a ‘warranted excuse’.
3.55 Moving on to the practical application of the EMED test, Victoria Nourse observes
that:
Jurors are told to put themselves in the defendant’s position, to
adopt his or her perspective and, yet, at the same time, to be
‘reasonable’. They are asked to exercise independent ‘moral
judgement’, and, at the same time, adopt the defendant’s vantage
point. In practice, this has done little to resolve the problem and
much to confound judges and jurors. After days of deliberation in a
case in which a defendant killed a man who had parked in his
parking place, one jury summed up its conclusion about the EED
38 Ibid, at pp 1390-91.
39 Ibid, at p 1394.
43