lc290 Partial Defences to Murder report - Law Commission

principally articulated by Justice for Women, which focused on provocation and
the pre-emptive use of force in self-defence. 2
5.4 Before setting out our recommendations, we wish to make certain preliminary
observations.
5.5 First, as we have indicated in Part 2, 3 some consultees made it clear that they
wished to see a wider review of the current law of homicide. Many of them did not
focus on whether, in the meantime, the defence of diminished responsibility
should be retained and, if so, in what form.
5.6 Second, a small number of consultees either expressed the view that it made
“little sense” to review the law of diminished responsibility in isolation, 4 or
expressed regret that our terms of reference did not permit or require us to
examine the whole area of mental abnormality, including the defence of insanity. 5
In one response the authors prefaced their answers by saying that they favoured
“a general review of the law relating to the effect of mental impairment on criminal
liability”. 6
5.7 Third, the most recent statistics contained in Crime in England and Wales
2002/2003: Supplementary Volume 1: Homicide and Gun Crime (01/04, January
2004) reveal that in 2001/2002 for the first time the total number of successful
diminished responsibility pleas fell below 20 (the figure for 2000/2001). In
2001/2002 there were 15 successful pleas. The same table also shows that for
2002/2003 the number of convictions for manslaughter under section 2 was as
few as five. 7
5.8 Finally, we should bear in mind that, whereas all the other common law
jurisdictions 8 have a partial defence of provocation, though in various terms, the
same is not true of diminished responsibility. 9 The defence is not recognised in
2 Justice for Women does, in fact, support the retention of diminished responsibility as a
partial defence even if the mandatory sentence is abolished. It also supports the retention
of the current formulation of the defence although, arguably, without a great deal of
enthusiasm. Its support of the current formulation appears to be founded on the belief that
it is better than the other alternatives posited in that it is the least “narrowly medically
defined version”.
3 Paras 2.12 – 2.16 above.
4 Nicky Padfield.
5 JUSTICE.
6 The joint response of HHJ Clement Goldstone QC, HHJ Maddison, Honorary Recorder of
Manchester and HHJ Geake.
7 Home Office Statistical Bulletin 01/04, cited in the Sentencing Advisory Panel Consultation
Paper, Sentencing of manslaughter by reason of provocation, 11 March 2004. The
2002/2003 figures are, of course, not full year statistics. They appear, nonetheless, to be
consistent with the trend observed. The next set of statistics, which will provide the full year
statistics for 2002/2003, will be available in January 2005.
8 With the singular exception of Tasmania.
9 For a more detailed summary see Part VIII of Consultation Paper No 173.
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