lc290 Partial Defences to Murder report - Law Commission

ordinary temperament. 76 We can see the counter argument that, read literally, a
test including the word “might” could include almost every homicide, since the
possibility always exists, however remote, that a person might completely take
leave of his or her senses. We do not believe, however, that a jury would
understand the test in that way.
3.129 It has been argued by some that in applying the objective test the court should
take into account not only the defendant’s actual age but also their mental age.
3.130 In the case of those whom the law regards as adults, although we recognise the
logic of that argument, we do not support it for policy reasons. From our
discussions with psychiatrists, we understand that mental age is a complex
subject. People’s cognitive and emotional development is infinitely variable. Many
people who kill are emotionally immature. To introduce a test which would lead to
psychiatric and psychological evidence about the particular intellectual and
emotional development of a defendant, in order to provide some kind of bench
mark by which to judge whether his or her conduct was that of a person of
ordinary temperament for such level of development, would be complicated and
would go a significant way to undermining the objective test. A person who is a
psychopath or suffers from retarded development of mind may be eligible for a
defence of diminished responsibility. We do not think that factors of that nature
should be taken into account in adjusting the objective test for the purposes of
the defence of provocation.
3.131 Children who kill present special problems. Their position is special by reason of
their youth, and the criminal law must take proper account of this both in its
substance and in its procedures. Children mature at different rates and it is
frequently the case that children who kill come from significantly disturbed
backgrounds. In the case of children who commit homicide, a Consultation Paper
on tariffs in murder cases issued by the Sentencing Advisory Panel in November
2001 recognised that:
What does appear to be a common factor among these young
offenders is that they tend to come from seriously dysfunctional
families, many are the victims of abuse, and they are often
themselves seriously disturbed.
3.132 This is reinforced by comments which we have received from psychiatrists in
response to Consultation Paper No 173. Dr. Eileen Vizard wrote:
[T]here is a very robust evidence base which shows that children
who kill are very much more disturbed than ordinary child
delinquents. These children are co-morbid (have several psychiatric
disorders at the same time) [have] many serious psychiatric
disorders and abusive past experiences which impair their emotional
and cognitive development and their moral judgement. Children who
76 There is also the point made by Professor Glanville Williams that since the law’s
reasonable person is an invention, there is no sense expressing the test in terms of
statistical probability Textbook of Criminal Law (2 nd ed 1983) p 537.
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