lc290 Partial Defences to Murder report - Law Commission

chooses an advantageous moment to strike, is unassisted by the law of
self-defence and may only obtain the benefit of a partial defence by
distorting their true case, including, sometimes, their mental state, or by
the willingness of the courts to distort the law in order to do justice.
The substance of these concerns
The threatened householder
4.19 As we have indicated in Part 3, there is a strongly held view among many
members of the public that the law is wrongly balanced as between householders
and intruders. We think that much of that public anxiety is based on a
misunderstanding of the present state of the law, contributed to by incomplete
understanding of certain notorious cases. We accept, however, that the law
should provide explicitly for a partial defence to a charge to murder where a
person of ordinary tolerance and self-restraint acts in fear of serious physical
violence to himself or another. We acknowledge that such a person, though
genuinely acting in fear, might not always act “reasonably” so as to attract the full
defence of self-defence. In such a case, we conclude, he or she should not be
convicted of murder but should receive a conviction which reflects his or her
lesser degree of culpability. The law of self-defence should not be a case of “all or
nothing”.
The abused person who kills
4.20 Criticism of the law of self-defence by those commentators concerned about
abused people who kill tends to be focussed on what are perceived to be two
separate limitations of the common law. First, it is said that the objective
requirement of reasonableness applied to the amount of force used in response
to the attack, or threat of attack, does not operate in a way that is realistic. 23 The
requirement of proportionality as between attack and defence, which informs the
decision whether the force deployed by the defendant was reasonable, is
criticised as reflecting only cases where adversaries are of comparable strength.
It is said that it fails adequately to reflect cases where there is a gross
discrepancy in the strength of the protagonists, typically where the assailant is an
adult male and the defender a child or a female. In such cases 24 the discrepancy
in physical strength may force the person being abused to defend him or herself
with an instrument, such as a knife, the use of which may result in the force being
considered excessive. 25
4.21 Second, it is said that the common law fails to assist those abused people who
kill their abusers when they are asleep or otherwise defenceless. They are
precluded from being able to rely on self-defence because, in order to do so, they
23 A McColgan, “In defence of battered women who kill” (1993) 13 Oxford Journal of Legal
Studies 508 at p 515.
24 Ibid, at p 520.
25 S Edwards, “Injustice that puts a low price on a woman’s life” The Times, 2 September
2003 Law Supplement, at p 5. See also S Edwards, “Abolishing Provocation and
Reframing Self-Defence-the Law Commission’s Options for Reform” Crim LR [2004] 181.
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