lc290 Partial Defences to Murder report - Law Commission

DURESS
3.161 The Law Commission has in the past considered and made recommendations
about duress as a defence to murder, 98 but these have not yet been accepted.
We have not consulted again on duress as part of this project.
3.162 We therefore exclude from our proposals a defendant who kills or takes part in
the killing of another person under duress of threats by a third person. We wish to
make it clear that this does not represent a policy judgement that such a person
should not be entitled to a defence or partial defence to murder. On the contrary,
we have in the past advocated that duress should be available as a defence to
murder. If, for example, a terrorist hijacks a motorcar and forces the driver to
drive at gunpoint to a place where the driver knows that the terrorist intends to
carry out a murder, and the terrorist does so, under English law both the terrorist
and the driver are guilty of murder. 99 There is a strong case for arguing that this is
unjust and that the driver should either have a complete defence or be guilty of a
lesser offence. We believe that the matter needs to be considered, but any
further consideration of the subject would fall within a wider review of murder.
EXCESSIVE FORCE IN SELF-DEFENCE
3.163 Since our proposal for provocation is that it should be recast in a way which
would include (subject to safeguards) excessive force in self-defence, we do not
propose a separate partial defence of that kind. This subject is discussed more
fully in Part 4.
MERGER OF PROVOCATION AND DIMINISHED RESPONSIBILITY INTO A SINGLE DEFENCE
3.164 The proposal by Professors Mitchell and Mackay for a merger of these defences
(discussed in Consultation Paper No 173 at paras. 12.77-12.81) has stimulated a
lively debate in recent issues of the Criminal Law Review. 100
3.165 It attracted a small amount of support from consultees, but a far greater number
were opposed to it. These included the Royal College of Psychiatrists who wrote
that:
[W]e … agree emphatically with your conclusion in your paragraph
61 [of your provisional conclusions paper], that the defences of
provocation and diminished responsibility should not be merged into
a single defence. Diminished responsibility and its underlying
concepts of mental abnormality are complex enough already. We
98 Most recently in Consultation Paper No 218 (1993) Offences Against the Person and
General Principles, pp 48-64 and 104 –107 (clauses 25 and 26 of the draft Bill).
99 This is the effect of R v Howe [1987] 1 AC 417.
100 Mackay and Mitchell “Provoking Diminished Responsibility: Two Pleas Merging into One?”
[2003] Crim LR 745; Chalmers “Merging Provocation and Diminished Responsibility: Some
Reasons for Scepticism” [2004] Crim LR 198; Gardner and Macklem “No Provocation
Without Responsibility: A Reply to Mackay and Mitchell” [2004] Crim LR 213; Mackay and
Mitchell “Replacing Provocation: More on a Combined Plea” [2004] Crim LR 219, and
Susan Edwards “Abolishing Provocation and Reforming Self-Defence – the Law
Commission’s Options for Reform” [2004] Crim LR 181.
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