lc290 Partial Defences to Murder report - Law Commission

diminished responsibility as a defence (partial or otherwise) to murder. The
reason was that it was felt that forms of mental abnormality, which resulted in a
diminution of responsibility, were of frequent occurrence and potentially of
importance to a wide range of offences. The Commission was of the view that its
terms of reference did not allow it to consider offences other than murder.
Further, as far as murder was concerned, it believed that a “radical” amendment
to the existing law would not be justified for the “limited” purpose of enabling the
court to take account of a special category of “mitigating” circumstances in cases
of murder so as to avoid passing the death sentence.
5.16 Views expressed over fifty years ago, even those of a Royal Commission, need
to be carefully scrutinised and considered, particularly when it is remembered
that Parliament, in 1957, did not accept the Royal Commission’s advice but
instead opted for what the Royal Commission had rejected. Nevertheless, the
views expressed by the Royal Commission are of interest. The Royal
Commission, referring to diminished responsibility as developed by Scots law,
referred to it as “a device to enable the courts to take account of a special
category of mitigating circumstances in cases of murder”. 18
5.17 This is of interest because most of the consultees who supported abolition of
diminished responsibility, provided the mandatory sentence were to be abolished,
were of the view that the issues raised by the defence are no more than issues of
mitigation which go to sentence. 19 Adherents to this view emphasised that, in any
other context, the issues raised by mental abnormality short of insanity are
considered in the course of a “rational sentencing exercise”. 20
Arguments in favour of retention of the defence of diminished
responsibility
5.18 The main rationale which underlies the body of opinion favouring retention of
diminished responsibility, even if the mandatory life sentence were to be
abolished, can be summed up in the phrase “fair and just labelling”. Consultees
frequently expressed the view that it is unjust to label as murderers those not fully
responsible for their actions. Some consultees 21 referred to the stigma which
attaches to a conviction for murder, the most serious of all crimes. 22 According to
those consultees, the reason why it is unjust is that their culpability is diminished.
18 Ibid, at para 413.
19 A view very forcibly expressed by Buxton LJ.
20 Per Buxton LJ.
21 Mr Justice Richards; Mr Justice Poole.
22 As, indeed, the Law Commission did in 1989 in its Memorandum to the Select Committee
on Murder and Life Imprisonment, in which it favoured abolition of the mandatory sentence
but retention of diminished responsibility as a partial defence to murder (Minutes of
Evidence taken before the Select Committee on Murder and Life Imprisonment (1988-89)
HL Paper 20-vi, Memorandum by the Law Commission para 9.16).
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