lc290 Partial Defences to Murder report - Law Commission

eacted in the same way to the cumulative effect of the treatment
which she endured. 64
3.112 We think that the objective test should apply in the case of a person responding
to fear of serious violence as in the case of a person responding to provocation. It
might be argued that self-restraint is a relevant factor when considering
provocation but not when considering the position of a person acting in fear, but
we would disagree. Ordinarily it would not be even partially excusable for a
person in fear, but not in imminent danger, to take the law into his or her own
hands. We would not, for example, want a partial defence to be available to
criminal gangs who choose to deal with threats of violence from rival gangs by
striking first. Our proposals regarding the role of the judge and jury 65 would
properly preclude such a defence from being left to the jury in those
circumstances (on the basis that no properly directed jury could reasonably
conclude that a gangster who chose to act in such a way could satisfy the
objective test).
3.113 Some concerns have been expressed about our formulation of the objective test
on the basis that persons of ordinary temperament do not kill in face of
provocation. The “reasonable person” test in the law of provocation has always
involved this problem. In Campbell 66 Lord Bingham CJ observed that “it is not
altogether easy to imagine circumstances in which a reasonable man would
strike a fatal blow with the necessary mental intention, whatever the
provocation”. 67 Nevertheless juries have recognised that there may be
circumstances in which an ordinary person may be driven to use fatal violence in
response to provocation.
3.114 It seems to us that there must be some objective assessment of the response
and its causes. As Lord Hoffman said in Smith (Morgan): 68
A person who flies into a murderous rage when he is crossed,
thwarted or disappointed in the vicissitudes of life should not be able
to rely upon his anti-social propensity as even a partial excuse for
killing. 69
3.115 Moreover our proposals involve abandoning the loss of self-control test, which
has proved very unsatisfactory, and this makes the need for an objective test still
greater.
3.116 It is clear from our consultation process that different judges and practitioners
have had different experiences of how the Smith (Morgan) test has worked in
64
Ibid, at p 213.
65 See paras 3.141 – 3.152.
66 [1997] 1 Cr App R 199.
67
Ibid, at p 207.
68 [2001] 1 AC 146.
69
Ibid, at p 169.
56