lc290 Partial Defences to Murder report - Law Commission

made known its intention to introduce legislation to address the issue of domestic
violence possibly as early as Parliamentary session 2003-4. The purpose of the
project was both to assist the Government in considering its proposals and to
inform public debate. In those circumstances, we were keen to begin our public
consultation process as soon as we could. Accordingly, we did not present any
provisional proposals in Consultation Paper No 173. Instead, we set out a series
of options for consideration and comment and posed a series of questions
intended to enable consultees to provide us with a structured response, the better
to inform our consideration of this seemingly intractable issue.
1.7 In Consultation Paper No 173 we asked whether consultees favoured: (1)
abolition of the defence of provocation whether or not the mandatory sentence is
abolished; (2) abolition of the defence of provocation conditional upon abolition of
the mandatory sentence; or (3) retention of the defence of provocation, whether
or not the mandatory sentence is abolished. 7
1.8 The response to the second and third of these questions took us somewhat by
surprise. We were impressed both by the number of those who expressed the
view that there should continue to be such a partial defence, even in the event of
the abolition of the mandatory sentence, and by the arguments which they
deployed. Ultimately we have concluded that the law of provocation is capable of
reform in ways which would significantly improve it. As a result, reform rather
than abolition is our recommendation.
1.9 A number of consultees expressed concern about the limited scope of our terms
of reference. In Part 2 of this report we consider in some detail the comments,
which we received in this regard. 8
1.10 In the course of late January and February 2004 our criminal law team produced
a series of draft formulations. These were designed to encapsulate, in short form,
a series of principles. The formulae sought to differentiate between the cases in
which the culpability of the killer was sufficiently reduced so as not to merit the
description of murder and those cases where there was no such reduced
culpability. Those formulations were the subject of an intensive round of
discussions with a range of academics and members of the judiciary who were
most generous with their time and whose views were influential in assisting us to
develop and to finalise our recommendations. We are particularly grateful to
Professor David Ormerod of Leeds University, our academic consultant on this
project, and to Professor John Spencer and other members of the Law Faculty of
the University of Cambridge, Professor Andrew Ashworth, Dr Jeremy Horder and
other members of the Law Faculty of the University of Oxford, Lord Justice
Buxton, HHJ Jeremy Roberts QC, the members of the Rose Committee,
7 Consultation Paper No 173, Part XIII question 3.
8 See paras 2.12 – 2.16.
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