lc290 Partial Defences to Murder report - Law Commission

defence by sending a note to the judge, asking, Whose norms apply,
his or ours? 40
3.56 Victoria Nourse also cites many other cases of EMED defences being left to the
jury where there was no reasonable ground to regard the defendant as having
been seriously wronged by the victim. She says:
Reform has permitted juries to return a manslaughter verdict in
cases where the defendant claims passion because the victim left,
moved the furniture out, planned a divorce, or sought a protective
order. Even infidelity has been transformed under reform’s gaze into
something quite different from the sexual betrayal we might expect –
it is the infidelity of a financee who danced with another, of a
girlfriend who decided to date someone else, and of the divorcee
found pursuing a new relationship months after the final decree. In
the end, reform has transformed passion from the classical adultery
to the modern dating and moving and leaving. And because of that
transformation, these killings, at least in reform states, may no
longer carry the law’s name of murder. 41
3.57 Professor Kadish has pointed out that Victoria Nourse’s study was of cases in
which manslaughter was left to the jury as a possibility, and that in the cases
instanced by her the defence failed. However, we would not favour developing a
test which opened the possibility of a defence in such a broad range of
circumstances.
3.58 Professor Kadish has also pointed out that many “reform states” have not
adopted the second part of the EMED provision in the MPC (“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”), but
the mental and emotional character of the defendant remains central to the
question whether he or she was acting under the influence of extreme mental or
emotional disturbance for which there was reasonable explanation or excuse.
3.59 In the USA there is no general equivalent of the defence of diminished
responsibility. In that context the development of the EMED defence with its
concentration on psychiatric evidence is supported by some scholars (including
Professor Kadish). We would not recommend importing a defence based on
EMED. We think that it is too vague and indiscriminate. We favour as the moral
basis for retaining a defence of provocation that the defendant had legitimate
ground to feel seriously wronged by the person at whom his or her conduct was
aimed, and that this lessened the moral culpability of the defendant reacting to
that outrage in the way that he or she did. It is the justification of the sense of
outrage which provides a partial excuse for their responsive conduct.
40 Ibid, at p 1372.
41 Ibid, at pp 1332-33.
44