lc290 Partial Defences to Murder report - Law Commission

3.157 In Letenock 94 the defendant, a soldier, was convicted of murder after drunkenly
killing a corporal. His defence was that he acted under the mistaken belief that
the corporal was about to attack him. The judge directed the jury that his
drunkenness was irrelevant unless he was so drunk as to be incapable of
knowing what he was doing. The Court of Criminal Appeal quashed his
conviction for murder and substituted a verdict of manslaughter. Lord Reading CJ
said that:
The only element of doubt in the case is whether or not there was
anything which might have caused the applicant, in his drunken
condition, to believe that he was going to be struck. 95
This suggests that the question is whether there was any intelligible basis for the
defendant’s belief. If so, the defendant is entitled to be judged on the facts as he
believed them to be, whether or not his belief was reasonable. 96
3.158 We would not expect or intend provocation to be available as a defence in a case
where the defendant had no intelligible basis for believing in the supposed
provocation. Professor Mackay’s study on the diminished responsibility plea in
operation has shown a number of cases where defendants have killed under a
paranoid delusion about threatening or insulting conduct by the victim. In such
cases we think that diminished responsibility, not provocation, is the appropriate
defence.
3.159 The common law has also adopted a merciful position towards a defendant who
in response to provocation attempted to attack the provoker, but by mistake hit
the wrong target. Such a defendant was treated in the same way as if he or she
had hit the intended target. 97
3.160 We think that the way in which the courts have dealt with accident and mistake in
relation to provocation has been sound. There is no need, therefore, to
supplement the common law in these cases.
94 (1917) 12 Cr App R 221
95 Ibid, at p 224.
96 The law relating to self-induced intoxication as applied to defences to crimes of specific
intent is controversial. See O’Grady [1987] QB 995; O’Connor [1991] Crim LR 135;
McAuley, “The Intoxication Defence in Criminal Law” (1997) 32 Irish Jurist 243; Simester
and Sullivan, Criminal Law Theory and Doctrine (2000) p 561; Smith and Hogan, Criminal
Law (10 th ed 2002) pp 246-247. The Law Commission is reviewing the general principles of
criminal law in relation to intoxication and its bearing on criminal liability as part of its work
on a criminal code and will be publishing a consultation paper in 2005.
97 Gross (1913) 23 Cox CC 455; Porritt [1961] 1 WLR 1372.
68