lc290 Partial Defences to Murder report - Law Commission

Reduced culpability should be reflected in “fair and just labelling” and not just by
mitigation of sentence. 23
5.19 This rationale merits two comments. First, the frequent reference to culpability is
problematic because, traditionally, English law has employed the concept of
mens rea (in conjunction with actus reus), and in particular the distinction
between intention and subjective recklessness, as a means of assessing
culpability and labelling conduct. 24 Murder stands at the apex of offences of
physical violence because of the requirement of intent attached to the actus reus
of unlawful killing. The partial defences represent an exception to the general
approach precisely because they only come into play if the jury is satisfied
beyond reasonable doubt that the defendant committed the conduct element and
had the mens rea of murder. Further, they are not a complete defence
exculpating the defendant from all liability. 25 Some would maintain that, for this
reason, these partial defences are anomalous and owe their existence solely to
the respective mandatory sentencing regimes, which have always existed for
murder.
5.20 Professor Ronnie Mackay recognised the contradiction, namely that diminished
responsibility allows a defendant to be convicted of one offence when he has the
mens rea, and, on the traditional analysis, the culpability of another and more
serious offence but stated:
There is, in my view, a clear moral distinction between murder and a
diminished responsibility killing despite the presence of the mens
rea of the former offence … what is needed is a newly crafted plea
which more appropriately reflects this moral distinction. 26
23 A view strongly held by the New South Wales Law Reform Commission: “people who kill
while in a state of substantially impaired responsibility should not be treated as ‘murderers’”
(Report on Partial Defences to Murder: Diminished Responsibility Report 82 (1997) para
3.18). Mr Justice Stanley Burnton agreed that “the culpability of someone with reduced or
damaged mental functioning is not the same as that of a normal and healthy person”. He,
however, favoured the abolition of the defence provided the mandatory life sentence is
abolished.
24 Examples are the offences contained in the Public Order Act 1986. At the meeting with
JUSTICE, Anthony Edwards, solicitor, cited these as an illustration of “fair and just
labelling”. He argued that by analogy the partial defences should be retained regardless of
the fate of the mandatory life sentence.
25 Such as self-defence.
26 This raises an important point and one which is not confined to the present context. Do we
need to acknowledge that gradations of culpability are not always properly reflected by the
intent/recklessness divide? Professor Sullivan – one of our consultees – has elsewhere
written that “if particular incidents are appraised in terms of substantive (our emphasis)
values we may be confronted with legal classifications which appear counter-indicated in
moral terms” (“Intent, Subjective Recklessness and Culpability” (1992) 12 Oxford Journal
of Legal Studies 380, 380). We may believe that the way we legally classify conduct should
not be affected by either honourable or dishonourable motives but still maintain that mental
disorder, although not negating mens rea, should be capable, if sufficiently serious and
relevant, of impacting on traditional legal classifications. If, however, the reason for
allowing mental abnormality to impact on legal classification is in order to reflect a moral
distinction, those who advocate such an approach need to explain why other conduct
resulting from honourable motives should not be afforded the same treatment. Some, of
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