lc290 Partial Defences to Murder report - Law Commission

4.10 The apparent harshness of the conclusion that, in cases of murder, self-defence
is an “all or nothing” defence and that there is no partial defence was, however,
mitigated by two important elements in the exposition of the defence in that case.
The first is expressed in the passage set out below. This passage has invariably
provided the basis of guidance given by trial judges to the jury on the approach to
take where the circumstances, or the inability of defendant to explain himself,
deny the jury a fully reasoned account for what happened.
If there had been attack so that defence is reasonably necessary it
will be recognised that a person defending himself cannot weigh to
a nicety the exact measure of his necessary defensive action. If a
jury thought that in a moment of unexpected anguish a person
attacked had only done what he honestly and instinctively thought
was necessary that would be the most potent evidence that only
reasonable defensive action had been taken. 17
The second demonstrates how, notwithstanding the complete nature of the
defence, the facts which fall short of substantiating self-defence may,
nonetheless, form the basis for a conviction for manslaughter:
The defence of self-defence either succeeds so as to result in an acquittal or it
is disproved in which case as a defence it is rejected. In a homicide case the
circumstances may be such that it will become an issue as to whether there
was provocation so that the verdict might be one of manslaughter. Any other
possible issues will remain. If in any case the view is possible that the intent
necessary to constitute the crime of murder was lacking then that matter
would be left to the jury. 18
This decision was followed in McInnes 19 where the Court of Appeal expressed
itself in the following terms:
[I]f [a plea] of self-defence fails for the reason stated, it affords the
accused no protection at all. But it is important to stress that the
facts upon which the plea of self-defence is unsuccessfully sought to
be based may nevertheless serve the accused in good stead. They
may, for example, go to show that he may have acted under
provocation or that, although acting unlawfully, he may have lacked
the intent to kill or cause serious bodily harm, and in that way render
the proper verdict one of manslaughter. 20
4.11 Palmer was followed by the House of Lords in Clegg. 21
4.12 Some consultees have suggested that although the Palmer direction is
theoretically generous to the defendant, it does not always work justly where a
17 Palmer [1971] AC 814, 832.
18 Ibid, at p 832.
19 McInnes [1971] 1 WLR 1600.
20 Ibid, at p 1608, per Edmund Davies LJ.
21 [1995] 1 AC 482. See paras 9.10 – 9.11 of Consultation Paper No 173.
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