lc290 Partial Defences to Murder report - Law Commission

under extreme or extraordinary stress. 43 We recognise that, tragically, there are
cases in which a person who is not ordinarily violent may do a sudden act of
serious violence under stress, not intending to kill but in fact resulting in death.
Such a person will be guilty of murder if there was an intention to cause serious
harm; but that is a consequence of the broad definition of murder in England and
Wales, which, as we have already said, we consider to be in need of review.
PROVOCATION: HOW TO RESHAPE IT
3.65 We think that the defence as it presently operates is in some respects too broad
and in other respects too narrow. We think that it is too broad in that it can apply
to conduct by the victim which is blameless or trivial. It is too narrow in that it
provides no defence to a person who is subjected to serious actual or threatened
violence, who acts in genuine fear for his or her safety (but not under sudden and
immediate loss of self-control) and who is not entitled to the full defence of selfdefence
(either because the danger is insufficiently imminent or their response is
judged to have been excessive). We are satisfied from consultees’ responses
that this is a real and not merely an academic problem, particularly in cases of
defendants who have been victims of long-term abuse.
3.66 In principle, we consider that the first pre-requisite of a defence of provocation
should be that the defendant acted in response to (1) gross provocation or
(2) fear of serious violence towards himself or herself or another, or (3) a
combination of (1) and (2) (the trigger).
3.67 The second should be that a person of ordinary temperament, i.e. ordinary
tolerance and self-restraint, in the circumstances of the defendant might
have reacted in the same or a similar way (the objective test).
The trigger: gross provocation
3.68 We consider that the essence of gross provocation is that it is words and/or
conduct which caused the defendant to have a justifiable sense of being
seriously wronged. The preferred moral basis for recognising a partial defence
of provocation is that the defendant had legitimate ground to feel strongly
aggrieved at the conduct of the person at whom his/her response was aimed, to
the extent that it would be harsh to regard their moral culpability for reacting as
they did in the same way as if it had been an unprovoked killing. It is important to
note that there are two aspects to this.
“Caused” the defendant to have a … sense of being seriously wronged
3.69 The first is that the words or conduct should have caused the defendant to have a
sense of being seriously wronged and therefore to react as he or she did. (This
follows from the requirements that the defendant acted in response to gross
43 We have discussed whether “extreme emotional disturbance” should be the test in paras
3.47 to 3.59. We discuss whether “abnormality of mind” for the purpose of the defence of
diminished responsibility should include, for example, people who are physically and
mentally exhausted by over work or lack of sleep, or distracted by shock or grief, in paras
5.72-5.75.
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