lc290 Partial Defences to Murder report - Law Commission

of domestic violence based on the definition in the New Zealand Domestic
Violence Act 1995.
3.76 Another group argued for an approach to domestic violence which may include
‘physical, sexual, emotional or financial abuse’. They stressed that concentration
on the purely physical can lead to a failure to understand the position in which
vulnerable people may find themselves.
3.77 In considering the impact of the law of provocation in the context of domestic
violence, our approach remains as stated in Consultation Paper No 173: 48
Domestic violence is an extremely worrying problem. The law must
deal with it in a way which is fair and shows proper respect for
human life. At the same time it would be wrong to introduce special
rules relating to domestic killings unless there is medical or other
evidence which demonstrates a need and a proper basis on which
to do so.
3.78 As a matter of principle, the criminal law should be gender neutral unless it is
absolutely necessary to depart from that principle. Our proposals do not depart
from that principle. Our provisional conclusions have received a considerable
degree of support from those women’s groups who have commented on them. 49
“Gross Provocation” need not involve a risk of physical violence
3.79 Turning to cases other than domestic violence, we would not want to narrow the
law of provocation as it currently affects householders. There is undoubtedly a
very strongly held view among many members of the public that the law is
wrongly balanced as between householders and burglars. 50 We think that much
of the public anxiety is possibly based on a misunderstanding of the present law
and of the highly unusual facts of the Tony Martin case. However, we do accept
that many members of the public are genuinely worried about what may happen
to them if they use force against intruders and are subsequently judged to have
gone too far. Sometimes burglaries involve the most vile acts of desecration of a
person’s home and of belongings which may be cherished for highly personal
reasons. If, for example, a householder confronted a burglar responsible for such
behaviour and immediately attacked him, causing fatal injury, we think that it
would be a harsh law which precluded the jury from considering provocation and
we doubt whether such a law would command public support or respect.
48 Para 1.67.
49 Association of Women Barristers; Justice for Women (but who prefer the majority view in
Smith (Morgan)); Refuge (but who would like to see inclusion of a partial defence
comprising realistic fear of serious harm or death coupled with extreme emotional
distress); Rights of Women (but who would like to have a definition of domestic violence
enshrined in English law).
50 When a BBC radio programme recently invited listeners to send in their suggestions for a
new law on any subject, the proposal which received the greatest number of votes was to
legitimise any use of force by householders towards burglars. See further
http://www.bbc.co.uk/radio4/today/.
49