lc290 Partial Defences to Murder report - Law Commission

“a person may use such force as is [objectively] reasonable in the circumstances
as he [subjectively] believes them to be.” 11
4.7 If the force used is more than is objectively reasonable in the circumstances as D
believed them to be, then D will not be able to successfully use the defence of
self-defence. This is so even if D believed that the force deployed was
reasonable. In this sense, the defence is “all or nothing”. If successful the verdict
will be an acquittal but if not it must be a conviction. This obvious result is
unproblematic where the offence charged is non-fatal violence; the court has
discretion in its powers of sentencing to reflect the facts of the case. The position
is different where the offence charged is murder due to the existence of the
mandatory life sentence. Whilst the alternative offence of manslaughter is
available where the “partial defences” of provocation and diminished
responsibility succeed, the law does not presently allow for a partial defence
where excessive force in self-defence has been used. It is the possibility of
developing such a partial defence that we examine in this chapter.
4.8 That self-defence operates in the same “all or nothing” manner for murder, as it
does for other offences, has indisputably been the position since the decision of
the Privy Council in Palmer. 12 In that case the issue for the court was whether, on
a charge of murder, there was a rule of law which required the jury to be directed
that D should be found guilty of manslaughter if they concluded that D may have
acted in self-defence but were sure that he used more than reasonable force.
The Privy Council concluded that there was no such rule. 13 The speech of Lord
Morris of Borth-y-Gest set out what has come to be regarded as the classic
exposition of the law of self-defence; a person who is attacked may defend him or
herself but may only do what is reasonably necessary, which is a matter for the
jury to decide. 14
4.9 This decision of the Privy Council was reached after a detailed consideration of
English authority. It included consideration of a number of nineteenth century
cases which were cited as support for the contention that there was such a rule. 15
In addition, detailed consideration was given to the judgment of the High Court of
Australia in Howe 16 which was cited by the appellant in support of the proposition
that there was a partial defence of excessive use of force in self-defence. Thus,
the decision in Palmer was based on a full consideration of domestic and
comparative authority.
11 Owino [1996] 2 Cr App R 128, 134, citing Criminal Law Revision Committee, Fourteenth
Report: Offences Against the Person (1980) Cmnd 7844.
12 [1971] AC 814.
13 Ibid, at p 824.
14 Ibid, at pp 831-832.
15 Ibid, at pp 824-826. It is worthy of note that a number of these authorities predated the
drafting of the Indian Penal Code which provides for a partial defence to murder of
excessive use of force in self-defence. We consider this below. It may be that the author of
the Code believed that such a provision reflected the then state of the common law. If so,
the Privy Council, after detailed examination, does not appear to have shared that view.
16 (1958) 100 CLR 448.
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