lc290 Partial Defences to Murder report - Law Commission

OUR APPROACH TO REFORM OF PROVOCATION
3.60 A number of approaches could be taken in seeking to define what may found a
defence of provocation. It could be limited to, or exclude, precisely defined
categories of conduct (providing the maximum certainty of outcome and minimum
evaluative role for the judge and jury) or broader principles could be adopted.
3.61 In our provisional conclusions we set out 42 principles on which we thought a
reformed defence of provocation should be based. The comments which we have
received have been mainly supportive, with certain qualifications, but some
consultees have been critical of the principles. Having considered these
responses, for which we are grateful, we have not changed our conclusions in
substance. From the comments which we have received, we recognise that there
are matters which require further explanation. There have also been helpful
suggestions how some of our proposed principles might be clarified or improved.
We also identify and address the principal criticisms made of the approach put
forward in our provisional conclusions.
3.62 A major criticism by some was that our provisional conclusions failed adequately
to explain the rationale underlying our proposed approach. We will address that
issue first and then explain our proposed principles. We emphasise, as we did in
our provisional conclusions, that what we are putting forward are principles,
rather than a statutory formula. If our approach is accepted, the drafting of
legislation will be a matter for Parliamentary Counsel.
Rationale of provocation
3.63 Putting it in broad and simple terms, we think that the moral blameworthiness of
homicide may be significantly lessened where the defendant acts in response to
gross provocation in the sense of words or conduct (or a combination) giving the
defendant a justified sense of being severely wronged. We do not think that the
same moral extenuation exists if the defendant’s response was considered,
unless it was brought about by a continuing state of fear. (There are also strong
policy reasons for the law not to treat vendettas as partial excuses.) We do not
suggest that these are the only circumstances which could significantly extenuate
moral responsibility for homicide, but we do think that they fall into a distinct
category. Another distinct category is where the defendant suffers from some
mental condition by reason of which he or she ought not to be regarded as fully
responsible for his or her actions. Because we see these as essentially different,
we do not favour amalgamating them in a single defence, but we will refer to this
in further detail later. There are also other circumstances which may significantly
extenuate moral responsibility for homicide. An example is the genuine case of
mercy killing, but that falls outside the terms of our present review. This project is
confined by our terms of reference to the present partial defences and the
possibility of a partial defence of excessive force in self-defence.
3.64 We would not favour extending provocation to cover cases where there was no
gross provocation in the sense suggested above, but where the defendant acted
42 Paras 18–59.
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