lc290 Partial Defences to Murder report - Law Commission

1.3 We have not been requested to consider and report on section 4 of the 1957 Act
(killing by survivor of a suicide pact), section 1 of the Infanticide Act 1938 or
assisted suicide save as to the extent necessary to consider the law and practice
of the defence of diminished responsibility. Such cases are rarely encountered.
1.4 Although this project is considerably narrower than a review of the whole law of
murder, which logically would begin with consideration of the elements of murder
before considering defences to murder, it is nevertheless important. It raises
issues which have proved to be of great difficulty not only in this country but also
in many others with similar legal systems.
1.5 We published Consultation Paper No 173 on 31 October 2003. 2 As part of our
review of the law we commissioned studies of the law and law reform proposals
in a number of common law jurisdictions. 3 Our Consultation Paper gave rise to
146 written responses from a wide range of consultees comprising lay persons,
non-governmental organisations (NGOs), professional bodies, academics,
members of the legal profession and members of the judiciary. 4 In addition,
members of the criminal law team attended meetings with or arranged by: Rights
of Women, Justice for Women, JUSTICE, Victim Support, Support after Murder
and Manslaughter (SAMM), the Judicial Studies Board, the Judges at the Central
Criminal Court, the Rose Committee, the Wales and Chester Circuit, the Western
Circuit, the North Eastern Circuit, the Midland Circuit, the Society of Legal
Scholars, the Institute of Advanced Legal Studies and a number of forensic
psychiatrists. We are grateful to each of these individual consultees and to each
of these bodies for taking the time and trouble to contribute to the consultation. In
formulating the recommendations which are contained in this report we have
considered all of their responses, as well as the views expressed at meetings. In
addition, as part of our consultation process we obtained accounts of the relevant
law of the United States of America, France and Germany. We are most grateful
to Professor Sanford Kadish, 5 Professor John Spencer QC and Antje Pedain 6
respectively, for helping us in this respect.
1.6 Provocation has always been at the heart of this project. For a long time, both
during the writing of Consultation Paper No 173 and thereafter, we were
pessimistic about the possibility of devising a formulation for the reform of
provocation, which would significantly improve the law. In addition, we were
unconvinced that there was any need for such a partial defence other than as a
buffer against the harsh effect of the mandatory life sentence for all cases of
murder. Indeed our pessimism on this issue was one of the influences which
implicitly informed our approach in that document. As we explained, Law
Commission consultation papers usually contain provisional proposals and invite
comments on them. Consultation Paper No 173 did not. The Government had
2 Partial Defences to Murder (in this Part referred to as Consultation Paper No 173).
3 These studies formed Appendices A to F to Consultation Paper No 173.
4 See Annexe H for the full list.
5 School of Law, University of California, Berkeley.
6 Members of the Faculty of Law, University of Cambridge.
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