lc290 Partial Defences to Murder report - Law Commission

ecorded and contemporaneous notes made. Interviewees were given scenarios
of various homicides and questioned about their assessment of the seriousness
of each scenario. One scenario involved a husband who killed his wife because
she had been having an affair. A variant involved the husband being taunted by
the deceased about his sexual inadequacy when he confronted her about the
affair. Just over half the respondents thought that this lessened the gravity of the
crime, giving as their reason that the husband reacted spontaneously to the
taunt. Interestingly, there was no significant difference between the replies of
male and female respondents.
3.147 It is a sad commonplace that when relationships break up there are often
arguments and mutual recriminations. We think that it would be seldom that
words spoken in such a situation could legitimately make the other party feel
severely wronged, to the extent that a person of ordinary tolerance and selfrestraint
in such a situation might have used lethal violence; but there may be
cases where one party torments another with remarks of an exceptionally
abusive kind or where one party’s behaviour puts quite exceptional emotional
pressure on the other. Unless the law is reduced to a formula which removes any
evaluative function from the judge and jury (which we would not favour) there are
bound to be borderline cases.
3.148 Examples of other cases which under our approach ought not to be left to the jury
are Baille, 89 Doughty 90 and Dryden. 91
3.149 We return to the question, discussed above, whether our approach to provocation
is too vague. We think that to attempt to set the bounds of provocation within
narrowly defined categories, for example, limiting it to cases of unlawful violence,
would be too restrictive and that too inflexible an approach would rapidly prove to
be unsatisfactory.
3.150 Our approach has been to seek to set out broad principles, to rely on the judge to
exercise a judgement whether a reasonable jury could regard the case as falling
within those principles and then to rely on the jury to exercise its good sense and
fairness in applying them.
3.151 This will place significant responsibilities on the judge, but his or her decision
whether or not to withdraw provocation from the jury will be given after argument
from the prosecution and the defence and will require to be supported by
reasons.
89 [1995] Crim LR 739.
90 [1986] 83 Cr App R 319. The defendant killed a crying baby. There would be a strong case
for arguing that the defendant should be guilty of manslaughter rather than murder if he
acted without intent to kill (as would be the case under the law of Scotland). But under our
approach a crying baby could not be regarded as “provocation”.
91 [1995] 4 All ER 987. The defendant killed a court official enforcing a court order. The court
official acted in a perfectly proper manner and was only doing his duty. Under our approach
his behaviour could not be regarded as provocation.
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