lc290 Partial Defences to Murder report - Law Commission

also think that provocation is probably a concept that the jury can
understand relatively easily but we are not impressed that the
complexities of mental abnormality are easily understood by jurors.
3.166 A merger of the two defences would not be compatible with our present thinking
about the way in which the defence of provocation should be reshaped, and we
do not recommend it.
BURDEN OF PROOF
3.167 In Consultation Paper No 173 we raised the question whether the prosecution
should continue to bear the legal burden of disproving the defence of
provocation. Of those respondents who addressed this issue, the majority
thought that the burden should remain on the prosecution. We agree with this
view, particularly in the light of two changes which we are recommending. One is
that the judge should not leave the issue to the jury unless there is material on
which a properly directed jury could reasonably conclude that the defence was
available. The other is the extension of provocation to include cases where a
defendant acts in fear of serious violence. If the burden is on the prosecution to
disprove a full defence of self-defence, it seems fair in principle that the same
should apply to the partial defence. Moreover, since the jury will in many cases
have to consider both the full defence and the partial defence, we think that it
would make for unnecessary complexity, as well as possible unfairness, if the jury
were to be given different directions on the burden of proof in relation to the two
defences.
RECOMMENDATIONS
3.168 We recommend that the defence of provocation should be reformed in
accordance with the following principles:
1) Unlawful homicide that would otherwise be murder should
instead be manslaughter if
the defendant acted in response to
(a) gross provocation (meaning words or conduct or a
combination of words and conduct which caused the
defendant to have a justifiable sense of being seriously
wronged); or
(b) fear of serious violence towards the defendant or
another; or
(c) a combination of (a) and (b); and
a person of the defendant’s age and of ordinary temperament,
i.e. ordinary tolerance and self-restraint, in the circumstances
of the defendant might have reacted in the same or a similar
way.
2) In deciding whether a person of ordinary temperament in the
circumstances of the defendant might have acted in the same
or a similar way, the court should take into account the
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