lc290 Partial Defences to Murder report - Law Commission

need to be able to demonstrate that the killing was necessary to resist actual or
imminent violence. Accordingly, the view has been expressed that reform should
“contemplate a re-thinking of self-defence, and a radical shift in some of the ideas
that underlie it.” 26
4.22 Some consultees 27 have said that the absence of a partial defence of excessive
force in self-defence means that abused people who kill often feel constrained to
accept a plea to manslaughter on the basis of provocation or diminished
responsibility rather than contest a trial on the basis of self-defence. This is for
several reasons. First, the risk of conviction is high when the proportionality
requirements of self-defence are juxtaposed with the, apparently inconsistent,
requirement of loss of control necessary for provocation. Second, the “all or
nothing” nature of the complete defence of self-defence 28 is too risky an option for
a defendant when there is no partial defence available as an alternative.
4.23 We recognise that there may be cases in which a defendant’s conduct is unlawful
because there is no immediate risk to the defendant (or another), or no
sufficiently serious immediate risk to justify the defendant’s conduct, and yet the
defendant has acted in genuine fear. One obvious example is the abused woman
who kills her violent partner though not subject to an actual or imminent threat of
serious violence. Provided the defendant was genuinely in fear of such serious
violence and a person of ordinary tolerance and self-restraint might have
responded in the same or a similar way, the partial defence of provocation we
recommend in Part 3 would be available. It would be open for the jury to convict
of manslaughter if they thought that the killing was the type of response which a
person of ordinary tolerance and self-restraint might make in the circumstances
notwithstanding that the force used was unreasonable so as to deny the
defendant the complete defence of self-defence.
4.24 The availability of the partial defence recommended in Part 3 based in part on a
response to fear would, in our view, make it easier than it is at present for
defendants to run self-defence where that was the true nature of their case.
Whilst we accept that there is a risk that in some cases juries might “compromise”
and return a manslaughter verdict, whereas presently they would acquit on
grounds of self-defence, we accept the views of our practitioner consultees who
are more concerned that self-defence is simply not being run when it might be.
Conclusion
4.25 We believe that the reformulation of the partial defence of provocation that we
recommend in Part 3 is a principled approach. It accommodates the legitimate
concerns about specific categories of defendant, namely: the householder who
responds to an intruder by the use of lethal violence and the person who has
26 C Wells, “Battered Woman Syndrome and defences to homicide: where now?” (1994) 14
Legal Studies 266 at p 272.
27 Justice for Women, Vera Baird QC MP, Jane Miller QC.
28 Consultation Paper No 173 para 9.4.
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