lc290 Partial Defences to Murder report - Law Commission

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een the subject of abuse and who, in extremis, responds lethally out of fear of serious violence, whether or not actual or imminent. 4.26 Furthermore, by introducing a robust, objective test based on the person of ordinary tolerance and self-restraint as a controlling mechanism, we believe that we have reduced to a minimum the possibility of the reformulation being used to extend the partial defence beyond its proper boundaries. This is, we believe, enhanced by giving the trial judge the power to remove the issue from the jury. THE REASONS FOR NOT RECOMMENDING A SEPARATE PARTIAL DEFENCE OF EXCESSIVE USE OF FORCE IN SELF-DEFENCE 4.27 In Part 3 we have identified the concerns, which were expressed to us in the course of the consultation, that it was unwise to combine a fear and anger based defence within the single rubric of “provocation”. We explained in that part why we disagree with that view and that, in our view, nothing is lost but much gained in doing so. It would be possible, however, for us to respond to this concern by providing, in addition to our recommended reformulation of provocation, a separate partial defence of excessive use of force in self-defence. 4.28 One way of achieving this would be to have a defence which replicated the features of our reformulation but placed the “fear” based partial defence in a separate section. In our view this would be undesirable. As we have indicated, one of the strengths of having a single partial defence which potentially combines both emotions is that it accurately reflects reality, as perceived by the psychiatric community, and it reflects everyday experience. Having a separate defence would deny us this benefit. 4.29 Our reformulated provocation defence would be available to the defendant who acted through fear of serious violence to himself or another. That is a partially subjective requirement and, as such, it reflects the present state of the law of self-defence. The potential width of application of our recommended provocation partial defence is kept strictly in bounds by the further, objective, requirement that, “a person of ordinary tolerance and self-restraint might have acted in the same way as the defendant”. We do not think that this is an undue limit on the availability of such a defence. The defence works through the acknowledgement that even a person of ordinary tolerance and self-restraint might, on occasion, respond in fear by using an unreasonable amount of force. Without such a limitation the defence would be open, for example, to any professional criminal who decided that it was necessary to respond to threats of violence from a rival gang by a private execution. 4.30 In summary, in our view, our proposed reformulation set out in Part 3 will be the simplest and most effective way of ameliorating the deficiencies of the present law. 4.31 We do not, therefore, recommend a specific separate partial defence to murder based on the excessive use of force in self-defence. 80
PART 5 DIMINISHED RESPONSIBILITY INTRODUCTION 5.1 Section 2 of the Homicide Act 1957 provides: (1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing; (2) On a charge of murder, it shall be for the defence to prove that the person charged is by virtue of this section not liable to be convicted of murder; (3) A person who but for this section would be liable, whether as principal or accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter. 5.2 In Consultation Paper No 173 1 we asked whether consultees favoured: (1) abolition of diminished responsibility, whether or not the mandatory sentence is abolished; (2) abolition of diminished responsibility, conditional upon abolition of the mandatory sentence; (3) retention of diminished responsibility, whether or not the mandatory sentence is abolished? What are their principal reasons? 5.3 Only about half of those who have commented on our Consultation Paper addressed the partial defence of diminished responsibility. What conclusion, if any, should be drawn from this? One is that there is a considerable body of opinion which believes that the partial defence is, in principle, justified, that it should continue to exist and that it is not in need of any significant reform. We should, however, be cautious about drawing such a conclusion from mere silence. Those who did not address the defence included mainly lay persons, whose responses were, mainly, brief and were directed to supporting the position 1 Para 12.72. 81
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6 August 2004 Law Commission Partia
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THE LAW COMMISSION PARTIAL DEFENCES
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v Paragraph Page The substance of t
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THE LAW COMMISSION Report on a refe
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made known its intention to introdu
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i. gross provocation (meaning words
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(c) control himself, was substantia
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PART 2 THE SCOPE OF OUR CURRENT TER
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each of their Lordships cast doubt
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2.16 A point emphasised by some con
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“the taunted husband” respectiv
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Can we discern anything about the p
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the law of homicide is permeated by
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grievous bodily harm when it is his
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In Canada a person commits murder i
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premeditation, (5) by aggravated br
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that it is safe to release him agai
Page 35 and 36: professions: Professor Susan Bailey
Page 37 and 38: 3.9 In para 3.163 we refer to the q
Page 39 and 40: cannot be satisfactorily tackled in
Page 41 and 42: The provoking conduct 3.25 In Consu
Page 43 and 44: had any alternative suggestion. Vie
Page 45 and 46: there is a distinction in moral bla
Page 47 and 48: EXTREME MENTAL OR EMOTIONAL DISTURB
Page 49 and 50: psychologists, by rhetoricians and
Page 51 and 52: OUR APPROACH TO REFORM OF PROVOCATI
Page 53 and 54: provocation, and that to be gross p
Page 55 and 56: of domestic violence based on the d
Page 57 and 58: (Morgan) 55 suggested that provocat
Page 59 and 60: than merely react to the external s
Page 61 and 62: 3.108 HHJ Stewart QC has commented
Page 63 and 64: practice. Some have said that jurie
Page 65 and 66: etween mere bad temper or excitabil
Page 67 and 68: murder are, by any standards ‘unr
Page 69 and 70: the hardship by stretching the requ
Page 71 and 72: Court upheld his decision. In Smith
Page 73 and 74: 3.152 Nobody pretends that this is
Page 75 and 76: DURESS 3.161 The Law Commission has
Page 77 and 78: defendant’s age and all the circu
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Page 81 and 82: 4.10 The apparent harshness of the
Page 83 and 84: is an awareness of the possibility
Page 85: need to be able to demonstrate that
Page 89 and 90: either Canada or New Zealand. 10 In
Page 91 and 92: diminished responsibility as a defe
Page 93 and 94: 5.21 Second, if the defence is nece
Page 95 and 96: sentence, partly because it was fel
Page 97 and 98: was convicted of manslaughter pursu
Page 99 and 100: victim which does not fit neatly wi
Page 101 and 102: circumstance which ought to reduce
Page 103 and 104: 5.55 Conversely, others objected to
Page 105 and 106: A person who would otherwise be con
Page 107 and 108: the Mental Health Act 1983 (and wou
Page 109 and 110: 5.79 The Commission also recommende
Page 111 and 112: Our recommendation 5.86 Our view is
Page 113 and 114: that it need not be the sole cause
Page 115: and young people. This could form a
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