lc290 Partial Defences to Murder report - Law Commission

than merely react to the external stimulus. We also think that there is medical,
practical and moral justification for the proposed combination.
3.99 First, the Royal College of Psychiatrists said in their response to Consultation
Paper No 173:
[W]e would point out that the approach adopted within the document
to the relationship between provocation and self-defence, with the
suggestion of a new partial defence of ‘excessive self-defence’, is
based, at least partly, upon a legal misrepresentation of psychology
and physiology. Hence, one way of reading the proposal to abolish
the provocation defence ‘in favour’ of the new partial defence of selfdefence
is that it rests upon the assumption that ‘anger’ cannot be a
justification for ‘responsive violence’, but ‘fear’ can be. However, this
assumes that the two emotions of anger and fear are distinct. In
medical reality they are not. Physiologically anger and fear are
virtually identical, whilst many mental states that accompany killing
also incorporate psychologically both anger and fear. Hence, the
abused woman who kills in response even to an immediate severe
threat will also be driven at least partly by anger at the years of
abuse meted out to her, and perhaps her children. Again, the
woman who waits until the man is ‘helpless’ to kill him, is likely not
merely to be angry but also fearful that eventually he will kill her,
and/or her children, and that there is no way of preventing it other
than by the death of the man (partly because her cognitions have
been so distorted by the years of abuse that she does not perceive
the options for escape, for example legal options, at all in the same
way as an ordinary person would do). Any legal solution to the
current perceived problems with partial defences to murder which
rested upon the assumption that fear and anger can (even usually)
be reliably distinguished must, from a medical perspective, therefore
fail.
3.100 Secondly, from a practical perspective, it is desirable to try to keep jury directions
as broad and simple as possible.
3.101 Thirdly, from a moral viewpoint, there is a common element namely a response to
unjust conduct (whether in anger, fear or a combination of the two).
3.102 A different criticism made by one consultee is that the expression “serious
violence” needs further clarification and may be too narrow. This consultee
proposed that the wording should be “fear of serious violence or significant harm
towards the defendant or another”. Whatever form of words is used, there may be
borderline cases but we think that the concept of serious violence is one which a
jury should not find it difficult to grasp or to apply in a sensible way. To introduce
the alternative “or significant harm” would in our view tend to blur the test.
Conduct may be harmful in a broad sense without involving any physical threat
and without being deliberate. We think that this would be too wide. Those
criticisms could be met by adapting the phrase to “significant intentional physical
harm” but that is not far removed from “serious violence”. On consideration, we
prefer a straightforward test of “serious violence”. This would obviously include
sexual as well as other physical violence, and what was judged to be serious
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