The Law Commission

PART I

INTRODUCTION AND OVERVIEW

Introduction

Background and Terms of Reference

1.1     The Law Commission has long considered that the law of murder is overdue for review. In this consultation paper, however, we are not attempting a wholesale review of the law of murder. Our remit, in accordance with our terms of reference, is more limited.
1.2     In June 2003 the Home Secretary requested the Law Commission to consider and report on the following matters:

(1) the law and practice of the partial defences to murder provided for by sections 2 (diminished responsibility) and 3 (provocation) of the Homicide Act 1957.^[1] In considering this, we are asked to have particular regard to the impact of the partial defences in the context of domestic violence.

(2) In the event that either or both of them are in need of reform:

(a) whether there should continue to be partial defences to murder in the circumstances provided for by them;

(b) if so, whether they should remain separate partial defences or should be subsumed within a single partial defence;

(c) if the former, how they may each be reformed;

(d) if the latter, how such a single defence may be formulated.

(3) Whether there should be a partial defence to murder in circumstances in which the defendant, though entitled to use force in self-defence, killed in circumstances in which the defence of self-defence is not available because the force used was excessive.

(4) If so, whether such a partial defence should be separately provided for and in what terms, or should be subsumed within a single partial defence such as is referred to in (2)(b) and (d) above.

1.3     We have not been requested to consider and report on section 4 of the 1957 Act (killing by survivor of a suicide pact), section 1 of the Infanticide Act 1938 or assisted suicide save as to the extent necessary to consider the law and practice of the defence of diminished responsibility. Such cases are rarely encountered.
1.4     Although this project is considerably narrower than a review of the whole law of murder, which would logically begin with consideration of the elements of murder before considering defences to murder, it is nevertheless an important project. It raises issues which have proved to be of great difficulty not only in this country but also in many others which have similar legal systems.
1.5     In our consultation papers we usually set out provisional proposals and invite comments on them. In this consultation paper we are taking a different approach. The Government has 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 this project is both to assist the Government in considering its proposals and to inform public debate. In the circumstances, we are keen to begin our public consultation process as soon as we can. The publication of this consultation paper marks an important step in that process.
1.6     We are pursuing other avenues of consultation and research in parallel with the publication of this consultation paper. We have invited the Forensic Faculty of the Royal College of Psychiatrists to submit a paper reflecting its views on: the merits of the current test of diminished responsibility; the inter-relationship between insanity, diminished responsibility and fitness to plead; whether there are particular problems in relation to defendants who have been or are the victims of abuse and whether there are perceived problems regarding the inter-relationship between diminished responsibility and provocation. We are also holding meetings with a range of psychiatrists with particular expertise in this area.
1.7     We have commissioned a public opinion research survey which is being carried out by Professor Barry Mitchell of Coventry University.^[2] We hope to have the results in early 2004. In addition, Professor Ronald Mackay of De Montfort Law School, De Montfort University, Leicester is currently undertaking a research project on behalf of the Nuffield Foundation in relation to the defences of diminished responsibility and provocation.^[3] It involves extracting data from a sample of cases over a five year period. The Nuffield Foundation and Professor Mackay have very generously agreed to make the results available to us.
1.8     We are conducting some research by way of a survey of the judges' reports which are prepared in all cases (duly anonymised) where there has been a conviction for murder.^[4] This is being complemented by a survey which, at our request, is being undertaken by the Crown Prosecution Service. The survey comprises approximately 300 cases where provocation and/or diminished responsibility was raised.^[5] We are grateful to the Home Office for making this material available and to the Crown Prosecution Service for undertaking the survey on our behalf.
1.9     After publication of this consultation paper, we are planning to participate in a number of meetings arranged under the auspices of professional, academic and other interested bodies. We are keen that such meetings should not be confined to London. We envisage that such meetings will be of particular benefit if they are held once there has been an opportunity to digest the content of this consultation paper.
1.10     The findings from the research projects and the contributions made at the meetings we plan to attend will be taken fully into account in the development of our final recommendations. They will supplement the responses we receive to this consultation paper.
1.11     The emphasis in this consultation paper is on tracing the history and background of the two existing partial defences, stating the current law with an analysis of its problems, and identifying possible options for reform together with their principal strengths and weaknesses.

The structure of this paper

1.12     In this Part we explain the background and nature of the project and we identify the main problem areas. In Part II we set out certain facts and figures about killings in England and Wales and describe the research which is being undertaken in connection with this project. In Part III we examine the history of the provocation defence and in Part IV we examine the current law and its problems. In Part V we summarise, for purposes of comparison, the law of provocation in a number of jurisdictions. In Part VI we examine the background to the introduction of the defence of diminished responsibility and in Part VII we examine the development of that defence since its introduction in 1957. In Part VIII we summarise, for purposes of comparison, the relevant law of diminished responsibility of a number of jurisdictions. In Part IX we examine the subject of excessive use of force in self-defence, which has at various times provided a partial defence to murder in certain jurisdictions but has never been a defence in England and Wales. In Part X we examine particular problems associated with abused women who kill. This Part unavoidably overlaps with others. In Part XI we identify previous recommendations, which have been made since 1957, for reforming both provocation and diminished responsibility. In Part XII we set out possible options for reform together with arguments for and against each option and invite responses. Part XIII contains a list of questions for consultees.
1.13     We have been greatly assisted by distinguished academics who have produced papers on the approach to these matters in a number of other jurisdictions. Their papers form appendices to this consultation paper.^[6] We are particularly grateful for the speed with which they all produced their major contributions. In addition, we are greatly indebted to our consultant Professor David Ormerod of Leeds University who has read and commented on draft papers prepared by members of the Criminal Law Team and the comparative law papers which we received. Again we are particularly grateful for the speed with which he produced his observations.

Overview

Partial defences to murder

1.14     Murder differs from all lesser offences against the person in that the sentence is fixed by law. It used to be capital punishment.^[7] It is now life imprisonment. Accordingly, mitigating circumstances cannot be taken into account in the formal sentence which is passed, although they are taken into account in determining the actual period of imprisonment which a person sentenced to life imprisonment should serve. (After release, such a person remains on licence and can be recalled to prison for breach of his or her licence conditions for the remainder of his or her natural life).
1.15     Because of the mandatory sentence, there are certain defences to murder which differ from defences to other offences against the person. There are three special defences which reduce murder to manslaughter:

(1) provocation;

(2) diminished responsibility; and

(3) killing pursuant to a suicide pact.

Infanticide is functionally similar, although it carries the special title of infanticide rather than manslaughter.

1.16     The major partial defences to murder are provocation and diminished responsibility. From time to time it has been argued that there should be other special defences to murder, for example the excessive use of force in self-defence. In addition, concern has been expressed that the current law is unsatisfactory in the way that it operates in relation to "mercy killings" and abused women who kill their partners. This project is not concerned with whether "mercy killing" should be a partial defence to murder.^[8] Nor do we consider the related topic of whether euthanasia should be legalised. We do note, however, that at present "mercy killings" are often treated, seemingly somewhat inappropriately, as cases of diminished responsibility.^[9]
1.17     This consultation paper does address whether the use of excessive force in self-defence should be a partial defence.^[10] We also devote particular attention^[11] to the topic of abused women who kill.
1.18     Underlying the debate about partial defences to murder are two questions:

(1) Should "mitigated murder" be a separate offence (or group of offences) from murder or should mitigating factors simply be taken into account, as in other offences, in assessing the sentence?

(2) If mitigated murders are to be classed as separate offences from murder, should there be a unified form of mitigated murder which may take into account a variety of matters or should there be separate forms of mitigated murder?

Comparative studies

1.19     We have obtained papers from distinguished jurists on the relevant law and history of law reform proposals in Australia, Canada, India, Ireland, New Zealand, Scotland and South Africa. They form appendices to this paper. We also summarise salient parts of them in this consultation paper. We are deeply indebted to the authors.

Statutory background

1.20     Murder is a common law offence. In the nineteenth century codified versions of the offence were drafted in the Law Commissioners' Digest of 1839^[12] and in the draft Criminal Code of 1879,^[13] but these were not enacted in England and Wales. The 1957 Act amended the defence of provocation (section 3) and introduced the defence of diminished responsibility (section 2). The 1957 Act was preceded and influenced by the Royal Commission on Capital Punishment 1949 – 1953 Report.^[14]

Provocation

1.21     The law of provocation presents severe problems. It is a mark of these difficulties that the subject has been considered by the House of Lords or the Privy Council on four occasions between 1978 and 2000.^[15] On recent occasions the court has been deeply divided. Similar difficulties and divisions have been experienced in other countries. In New Zealand, for example, judges variously described the New Zealand law of provocation as "all but impenetrable and incomprehensible" and as involving a definition that is "a blot on the criminal law".^[16] In Smith (Morgan)^[17] Lord Hoffmann said "it is impossible to read even a selection of the extensive modern literature on provocation without coming to the conclusion that the concept has serious logical and moral flaws".^[18]
1.22     Few would dispute that statement, although Lord Hoffmann's opinion in the case (in which he was one of a three to two majority) is a source of great controversy and will be discussed in further detail below.^[19] In this Part we identify and introduce the major problems which will be discussed in further detail below.
1.23     Study of the cases and textbooks suggests that there has never been a time when the doctrine was truly coherent, logical or consistent. In more recent times the fault lines have widened.

Historical foundations of provocation

1.24     Recognisable theoretical foundations of the doctrine of provocation can be traced back to the seventeenth century. Traditionally murder was held to require "malice aforethought" (in the sense of premeditation). The circumstance that a defendant killed the deceased under sudden provocation would negative this. However, if there was no reasonable relationship between the provocation and the response, malice would be implied. The requirement of malice aforethought and the doctrine of implied malice have long disappeared from the law. An intention to kill or to cause really serious bodily harm, even if formed on the spur of the moment, is sufficient mens rea for the offence of murder. But the notion that provocation negatived malice aforethought or mens rea continued to find expression in the cases.^[20] The ambivalence in the courts' approach to the relationship between provocation and mens rea has meant that provocation has sometimes been seen as explaining and sometimes as negating mens rea.
1.25     Professor Horder has explained the moral underpinning of the cases in the seventeenth and early eighteenth century.^[21] It was considered virtuous for a man of honour to respond with controlled violence to certain forms of offensive behaviour. If he overreacted to some degree, but not to a disproportionate extent, such overreaction was natural human frailty. If death resulted from this overreaction, it should be regarded as manslaughter rather than a hanging offence. Limits were implied by the notion itself, such that not every trifling insult would turn a retaliatory killing into a provoked killing. These limits related to the nature of the conduct of the person causing the provocation and the nature of the defendant's response.
1.26     Essentially, there were three requirements:

(1) there had to have been provocative conduct by the deceased;

(2) this had to have caused the defendant to respond in anger; and

(3) there had to have been a reasonable relationship between the provocation and the response.

1.27     As to the first requirement, in Mawgridge^[22] Lord Holt classified the types of conduct which might amount to provocation. In the nineteenth century the concept became generalised, but the conduct had to be inherently offensive. The Law Commissioners' Digest of 1839 stated that the provocative conduct must be "a wrongful act or insult".^[23] If the moral notion was that, while the defendant had gone too far, the victim was partly responsible by his conduct for causing the defendant's reaction, it would turn the notion on its head to apply it in circumstances where the victim had a right to behave as he did.^[24]
1.28     The third requirement, that there had to be a reasonable relationship between the provocation and the defendant's mode of showing resentment, was stated by Viscount Simon LC in Mancini v DPP,^[25] but the concept is much older and can be seen in Lord Holt's judgment in Mawgridge.^[26]
1.29     In Welsh^[27] Keeting J introduced the concept of the reasonable man when he referred to provocation as "something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act".^[28]
1.30     By 1957 there were signs of a tendency to run together the first and the third requirements, namely that there had been provocation and that there was a reasonable relationship between the provocation and the defendant's response. The elision is illustrated in the Report of the Royal Commission:^[29]

Two fundamental conditions must be fulfilled in order that provocation may reduce to manslaughter a homicide which would otherwise be murder. First, the provocation must be gross and must be such as might cause a reasonable man to lose his self-control and use violence with fatal results. Secondly, the accused must in fact have been deprived of his self-control under the stress of such provocation and must have committed the crime whilst still so deprived.^[30]

The first condition combines the first and the third requirements referred to above.^[31]

1.31     As to the second requirement, for the defendant to be able to avail himself of a defence of provocation his response had to have been in hot temper. Provocation was not available as a defence to a person who used the occasion of an insult to kill another in cold blood or who nursed his anger before retaliating.
1.32     Hot temper became equated with a lack of capacity to exercise self-control in the formulation that the defendant must have acted "under a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind".^[32] Although this vivid expression became a classical statement of law, it is somewhat ambiguous and apt to confuse. First, it seems to be inconsistent with a rule requiring a reasonable relationship between the victim's provocation and the defendant's response. This is because it would be illogical to require a measured response from a person in a frenzy. Second, the test hints at requiring a lack of mens rea. But provocation is not limited to cases in which the defendant has gone berserk. It applies where a killing is controlled in the sense of the defendant's actions being consciously directed by his or her mind and intended to kill or cause serious bodily harm. Without such an intention there would be no need to raise the defence.

The 1957 Act

1.33     Section 3 of the 1957 Act provides:

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question, the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

The section was intended to widen the scope of conduct which could amount to provocation. Before the 1957 Act it was a rule of law that words could not constitute provocation (other than possibly in exceptional circumstances). The opening words of the section recognise that the person might be provoked by things done or things said or both. However, the section has been interpreted as removing the first requirement altogether, that is, that there must have been conduct which was inherently provocative in its character. The Judicial Studies Board's specimen direction to the jury is that "provoked" means no more than "caused".^[33] On this view conduct may amount to provocation which is both entirely lawful and morally blameless: a planning officer enforcing an order^[34] or a baby crying.^[35] Nor need the provocation come from the deceased.^[36] Further, on this view, logically there is no reason in principle why "provocation" should be confined, as it is by the 1957 Act, to "provocation" from a human being. A dog barking can be as irritating as a baby crying. So can other things, such as a car breaking down or a bus not arriving on time.

The "reasonable person" test

1.34     The 1957 Act appeared to preserve the "reasonable man" test. Whether the law of provocation should incorporate that test had been addressed in the Report of the Royal Commission and was the subject of much debate when the Homicide Bill was passing through Parliament.^[37]
1.35     Since 1957, the application of the "reasonable man" test has caused persistent difficulties. The history and case law is examined in detail in Parts III and IV below.
1.36     The most recent decision of the House of Lords is Smith (Morgan)^[38] in which there was a 3:2 decision as to how the "reasonable man" test should be applied. The defendant became angry with the deceased when the latter denied having stolen some tools belonging to the defendant. He attacked the deceased and killed him. There was evidence that the defendant suffered from a depressive illness. The defendant advanced the defences of diminished responsibility and provocation. The trial judge ruled that medical evidence about the defendant's depression and its possible effect on his self-control was to be ignored when applying the "reasonable man" test. The speeches are analysed below,^[39] but, in summary, the majority held that the jury was entitled to take into account the effect of the defendant's depression in considering whether he had measured up to the standard of self-control required by the "reasonable man" test. The minority held that the jury should have taken the evidence of the defendant's medical condition into account in deciding whether he was provoked to lose his self-control and how grave the provocation was for a defendant in his circumstances, but that they must ignore his depressive illness when considering whether a reasonable person in the same situation would have acted as the defendant did.
1.37     The question to what extent the defendant's experiences, cultural background and personal characteristics should be taken into account in deciding whether a "reasonable person" in the defendant's position might have acted as the defendant did is highly problematical, as many cases in this country and other countries with a similar system of law have shown. Both the majority's and the minority's positions in Smith (Morgan) have their problems.
1.38     The minority's approach is problematic because of the artificiality and complexity of dividing the defendant's personality so as to separate his or her "power of self-control" from his or her susceptibility to the gravity of provocation. A person's characteristics may mould not only his or her perception of the gravity of the provocation but also his or her emotional and psychological disposition in response to such provocation.
1.39     On the other hand, the majority's position requires or enables the jury to judge the defendant by the standard of self-control of an "ordinary" person suffering from an abnormal condition that reduces his capacity for self-control. This test is not just artificial but self-contradictory and is tantamount to dispensing with the objective test.
1.40     Lord Hoffmann struggled to give some content to the "reasonable man" requirement of section 3.^[40] The jury, he suggested, should be told that the law expects people to retain control over their emotions and that a tendency to violent rages is a defect in character rather than an excuse. In deciding whether the circumstances were such as to make a loss of self-control sufficiently excusable to reduce murder to manslaughter, the jury must apply what they consider to be "appropriate standards" of behaviour. In this, they should make allowance for human nature, but not allow someone to rely on his or her own violent disposition. If the defendant, however, had a characteristic, permanent or temporary, which affected the degree of control which society could reasonably expect of him, and which the jury thought that it would be unjust not to take into account, they would be at liberty to give effect to it.
1.41     We do not believe that it is possible satisfactorily to reconcile the statutory "reasonable man" criterion set out in section 3 and a desire to allow the jury to take into account personal characteristics of the defendant which include an unusual propensity to violence.
1.42     Lord Hoffmann's approach gives the jury no clear guidance as to what, as a matter of law, reduces murder to manslaughter on grounds of provocation. In particular, it does not explain how the jury is to differentiate between a violent disposition, which is a defect of character, and a violent disposition which is the product of a characteristic properly to be taken into account. For example, is alcoholism a defect in character, a product of a defect in character, or is it a relevant characteristic? In the absence of this guidance, juries are left to judge the accused by any standard they think appropriate.
1.43     It is not a satisfactory answer to say that in the law there will always be borderline cases. Borderline cases have to be determined according to clearly understood underlying principles.
1.44     Lord Hoffmann made it clear that he was not seeking to lay down a prescriptive formula for judges directing juries. He expressed confidence that if judges were freed from having to invoke the formula of the reasonable man with an array of unreasonable characteristics, they would be able to explain the principles in simple terms. But this assumes that the principles of law are clear to the judges themselves.
1.45     The debate also raises serious moral and policy questions about the proper approach of the law to standards of self-control. We have already referred^[41] to the ambiguity of the requirement that the defendant should have acted under a sudden loss of self-control, making him or her for the moment "not master of his mind". Historically, passion was recognised as something that might temporarily deprive a person of his reasoning faculties.^[42] In modern cases a person's capacity for self-control is treated as a medical or psychological matter, but it is important to recognise the limits of medicine. In provocation, we are concerned with cases where the defendant's conduct is volitional in the sense of being rationally directed. Psychiatrists can explain whether the defendant was suffering from an abnormality of mind recognised as a mental illness or from a personality disorder. Psychiatrists may also help to explain why a particular person may respond in particular circumstances in a particular way. But a doctor cannot answer medically the question whether a person can control himself (except in cases which would be classified legally as automatism, such as sleep walking). Where conduct is volitional in the sense of being rationally directed, the law operates under a belief of free will. All sorts of events from the moment of conception may affect someone's personality and temperament, including their propensity to anger. But, subject to limited exceptions, the criminal law sets uniform standards of behaviour for public policy reasons. The principal exceptions relate to children and young persons and to mentally abnormal offenders.
1.46     The law of provocation prior to the 1957 Act reflected that general policy. It involved a concession to human frailty, but the frailty was that of mankind at large, not the frailty of an individual defendant.
1.47     The cases between 1957 and Smith (Morgan) are capable of different interpretations and show some ambivalence of approach. These cases are discussed in detail below.^[43] The decision of the majority in Smith (Morgan) unquestionably represents a major departure from the general approach of the criminal law in its interpretation of the "reasonable man" test. The departure raises important moral and policy questions. The debate is essentially the same as that which took place in Parliament during the passage of the 1957 Act.^[44] The answer given by the majority of the House of Lords is different.

Other problems with provocation

1.48     There are other major problems with the present law of provocation. We have referred to the fact that, since the 1957 Act, conduct may be "provocation" which would not be regarded as provocation in the ordinary sense of the word, still less gross provocation. So in many cases the word "provocation" has become a misnomer. An acquittal of murder on grounds of provocation can, and often does, appear to relatives of the victim to be a travesty of justice. It appears to imply a judgment by the court that the defendant's responsibility for killing the deceased was seriously lessened by the behaviour of the victim. Thus, in a case where a defendant has killed through sexual jealousy because the victim has formed an association with someone else, a verdict of manslaughter by reason of provocation often understandably appears to the victim's relatives to be an insult added to injury.
1.49     Such cases could not generally qualify as provocation before 1957. The defence was available if a husband found his wife in the act of adultery, as Lord Holt held in Mawgridge.^[45] But by the twentieth century that rule was regarded as an anachronism not to be extended.^[46]
1.50     It has also to be recognised that the law of provocation has reflected an essentially male view of society. Many killings by men of their partners are because of sexual jealousy. Killings by women of their partners are more likely to be because of abuse. In the former category, provocation is often available because the man acts in a sudden temper. In the latter, provocation was traditionally not available in many cases, because there was often a time interval between the abuse and the killing. The direction in Duffy,^[47] treated as a classical statement of the law, was given in just such a case.
1.51     In a series of cases examined below,^[48] the courts have sought to address this problem by relaxing the Duffy requirement of an immediate response, but in so doing have created further problems. This is because the relaxation has also affected other types of cases in which the facts have been very different. So, where a defendant fetched a gun from his attic, set off in pursuit of a man who had supplied drugs to the defendant's son, parked his car, walked to the man's house and shot him dead, the defendant's conviction for murder was quashed because the judge failed to leave provocation to the jury.^[49] As a result of this development, there is now no clear test for differentiating between a "provoked killing" and a "revenge killing".

Avenues for reform

1.52     In summary, the boundaries of the defence of provocation have expanded greatly since the 1957 Act. It no longer has (if it ever did have) clear boundaries or a clear moral basis. The act no longer has to be provocative in the ordinary sense; the response no longer has to be on the spur of the moment; and the response no longer needs to be that which would be expected of an ordinary person.
1.53     There is widespread agreement that there is a need for reform, but radically different views about what direction such reform should take. There are many variants but the three main possible avenues for reform would be:

(1) to abolish both the defence and the mandatory sentence;

(2) to retain the defence in a more restricted form (with the argument for abolition of the mandatory sentence varying in strength according to the extent of the restriction); or

(3) to retain the defence where it is presently available, to abolish the "reasonable man" test and, possibly, to fuse or amalgamate the defences of provocation and diminished responsibility (which have been growing closer together through the expansion of provocation).

These options and others are explored in this consultation paper.

Diminished responsibility

1.54     The Report of the Royal Commission^[50] considered the introduction of a partial defence of diminished responsibility but did not recommend it. It was acknowledged that the test of criminal responsibility for the defence of insanity under the M'Naghten Rules^[51] was inadequate and in need of reform. It concluded, however, that that it would be inappropriate to introduce piecemeal reform by way of establishing a defence of diminished responsibility in the case of murder alone. Parliament disagreed, however, and introduced section 2 of the 1957 Act. Subsection (1) provides:

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.

1.55     The language of the subsection has attracted strong academic criticism. Despite its theoretical difficulties (which are discussed below),^[52] it has in practice generally served the purpose for which it was introduced. However, the requirement that the "abnormality of mind" shall have "substantially impaired his mental responsibility" has caused some problems which we discuss (particularly as to the proper role of psychiatrists). The subsection has, nevertheless, provided a practically convenient method for the prosecution, defence and the court, by agreement, to dispose of cases where nobody would wish to see the imposition of a mandatory life sentence. This has been achieved by a sometimes strained and sympathetic approach to the medical evidence and the language of the statute. We are seeking to explore with a number of distinguished forensic psychiatrists their experience of the workings of the defence.
1.56     If the mandatory sentence were abolished, there would be an argument for abolishing diminished responsibility, which was only introduced because of the mandatory penalty. That would, however, mean that the only defence of mental abnormality available to a defendant facing a charge of murder would be a defence under the M'Naghten Rules. These are limited in scope. The Report of the Royal Commission concluded that it would be preferable to reform the law regarding mental abnormality in crime generally, rather than introduce a piecemeal reform of the law of murder. It might seem perverse fifty years later to abolish the defence of diminished responsibility without a comprehensive review of the M'Naghten Rules.^[53]
1.57     There is some controversy over the proper roles of the defences of provocation and diminished responsibility. As mentioned, there is a school of thought that diminished responsibility and provocation should be brought together.
1.58     There is also a body of opinion that provocation has been wrongly stretched to accommodate cases which should, if anything, be treated as diminished responsibility. If provocation is abolished and diminished responsibility retained, it is predictable that some cases, which are presently defended on grounds of provocation, will be sought to be defended on grounds of diminished responsibility.

Excessive self-defence

1.59     At times there have been flickerings in English law of a partial defence of excessive self-defence, but the law did not develop in that direction.^[54] In the nineteenth century there were cases which can be read as giving recognition to such a doctrine.^[55] However, in Palmer,^[56] after an extensive review of the authorities, the Privy Council rejected the argument that at common law excessive force in self-defence was a partial defence to murder. In Clegg,^[57] the House of Lords held that it would not be appropriate for the courts to create such a defence and that the matter was one for decision by the legislature.
1.60     There have been a number of recommendations that there should be such a defence: the Fourteenth Report of the Criminal Law Revision Committee,^[58] the Law Commission Report on Codification of the Criminal Law (1985),^[59] the draft Criminal Code Bill, clause 59^[60] and the Report of the House of Lords Select Committee on Murder and Life Imprisonment.^[61]
1.61     The central argument for a change is this. If a person, confronted with violence or threatened violence to himself or herself or another, responds with force and does no more than he or she believes to be necessary in the circumstances, it is harsh that he or she should be convicted of murder and sentenced to life imprisonment because on an objective view the degree of force used is judged to have been excessive.
1.62     The argument for not changing the law is that to do so would be unnecessary and overcomplicated. It would be unnecessary because a jury is directed that if a person in the heat of the moment does no more than he or she instinctively believes to be necessary in self-defence, that is very strong evidence that their conduct was reasonable and therefore lawful. If a defendant does overreact angrily there is also the partial defence of provocation.
1.63     The argument has been advanced that provocation should be abolished and a partial defence of excessive self-defence introduced on the ground that the law should look more sympathetically towards someone who uses excessive force in fear than in angry retaliation. On the other hand it is also argued that a new partial defence would be unnecessary if provocation and the mandatory sentence were abolished, because overreaction in self-defence would be taken into account in assessing sentence as in the case of non-fatal offences of violence.
1.64     If a partial defence of excessive self-defence were to be introduced, further questions would arise whether it should extend to force used in the protection of a person's home or business and also whether it should extend to the use of force against a threat by the deceased which is not immediate.
1.65     The Indian Penal Code 1860 has from its inception contained a partial defence of excessive use of force in self-defence.^[62] At times it has also been a defence in certain of the Australian states.^[63] In Canada, the majority of the provinces recognised the defence prior to the decision in Faid.^[64] In that case the Supreme Court of Canada held that the defence formed no part of Canadian law. In Scotland, there are suggestions in the works of the institutional writers that the excessive use of force in self-defence could found a partial defence.^[65] In Crawford v HM Advocate^[66] and Fenning v HM Advocate^[67] it has been held, however, that the use of excessive force in self-defence does not operate as a partial defence to murder.^[68] A partial defence of excessive force in self-defence has never been recognised under New Zealand law.

Abused women who kill

1.66     It is obvious that the criminal law ought not to have a gender bias.
1.67     Our reference asks us to examine particularly the law relating to partial defences to murder in the context of domestic violence. Domestic violence is an extremely worrying problem. The law must deal with it in a way which is fair and shows proper respect for human life. At the same time it would be wrong to introduce special rules relating to domestic killings unless there is medical or other evidence which demonstrates a need and a proper basis on which to do so.
1.68     In this context we are seeking the assistance of psychiatrists, in particular about the current state of medical opinion concerning battered woman syndrome (BWS). This consultation paper includes a Part in which that topic is discussed,^[69] but the issues discussed in it overlap with the issues discussed in the other Parts.

Note 1    In this Part referred to as “the 1957 Act”.    [Back]

Note 2    See Part II, paras 2.25 – 2.27. For details of previous research conducted by Professor Mitchell see Part II, paras 2.17 – 2.24.    [Back]

Note 3    See Part II, paras 2.10.    [Back]

Note 4    See Part II, paras 2.11 – 2.13.    [Back]

Note 5    See Part II, paras 2.14 – 2.15.    [Back]

Note 6    Available on our website at www.lawcom.gov.uk, via the link to publications.    [Back]

Note 7    Until the 1957 Act capital punishment was the sentence for all murders. The 1957 Act introduced separate categories of capital and non-capital murder. Capital punishment was abolished by the Murder (Abolition of Death Penalty) Act 1965.    [Back]

Note 8    The Criminal Law Revision Committee, Fourteenth Report, Offences against the Person (1980) Cmnd 7844, contrary to the view it had previously expressed in its Working Paper on Offences against the Person (1976), decided (para 115) against recommending that there should be a specific offence of “mercy killing”. The Law Commission’s Memorandum (1988-89) HL 20, which was submitted to the House of Lords Select Committee on Murder and Life Imprisonment, agreed with the Criminal Law Revision Committee but suggested (para 8.2) that there was a “strong case for treating some cases of mercy killing like cases of provocation and diminished responsibility, by a special defence”.    [Back]

Note 9    Professor R D Mackay, in an essay entitled “Diminished Responsibility and Mentally Disordered Killers” in A Ashworth and B Mitchell (eds) Rethinking English Homicide Law (2000) 55 at p 79 quotes Home Office figures as showing that between 1982 and 1991 there were twenty two homicides described as “mercy killings” of which one resulted in conviction for murder and the remainder in convictions for manslaughter. We hope during the course of this project to obtain more recent figures.    [Back]

Note 10    See Part IX.    [Back]

Note 11    See Part X.     [Back]

Note 12    Fourth Report of Her Majesty’s Commissioners on Criminal Law (1839) [168].    [Back]

Note 13    Report of the Royal Commission Appointed to Consider the Law Relating to Indictable Offences (1879) C 2345.    [Back]

Note 14    (1953) Cmd 8932; in this Part referred to as the “Report of the Royal Commission”.     [Back]

Note 15    Camplin [1978] AC 705; Morhall [1996] AC 90; Luc Thiet Thuan [1997] AC 131; Smith (Morgan) [2001] 1 AC 146.    [Back]

Note 16    The comments were made in response to the New Zealand Law Commission’s Preliminary Paper: Battered Defendants: Victims of Domestic Violence who Offend: New Zealand Law Commission Preliminary Paper 41 (2000).    [Back]

Note 17    [2001] 1 AC 146.    [Back]

Note 18    Ibid, at p 159.    [Back]

Note 19    Paras 1.40 – 1.44 and Part IV paras 4.72 – 4.93.    [Back]

Note 20    Welsh (1869) 11 Cox CC 336, 338; Holmes v DPP [1946] AC 588, 598.    [Back]

Note 21    J Horder, Provocation and Responsibility (1992). See in particular ch 2.    [Back]

Note 22    (1707) Kel J 119, 135-137; 84 ER 1107, 1114-5.    [Back]

Note 23    Fourth Report of Her Majesty’s Commissioners on Criminal Law (1839) [168].    [Back]

Note 24    See also s 176 of the draft Criminal Code of 1879: “no-one shall be deemed to give provocation to another by doing that which he had a legal right to do”.    [Back]

Note 25    [1942] AC 1, 9.    [Back]

Note 26    (1707) Kel J 119; 84 ER 1107.    [Back]

Note 27    (1869) 11 Cox CC 336.    [Back]

Note 28    Ibid, at p 339.    [Back]

Note 29    (1953) Cmd 8932.    [Back]

Note 30    Ibid, at para 126. (emphasis added)    [Back]

Note 31    Para 1.26.    [Back]

Note 32    Duffy [1949] 1 All ER 932, 932.    [Back]

Note 33    See Part IV, para 4.8.    [Back]

Note 34    Dryden [1995] 4 All ER 987.    [Back]

Note 35    Doughty (1986) 83 Cr App R 319.    [Back]

Note 36    Davies [1975] QB 691.    [Back]

Note 37    See Part XI, paras 11.23 – 11.28.     [Back]

Note 38    [2001] 1 AC 146.    [Back]

Note 39    Part IV, paras 4.69 – 4.140.    [Back]

Note 40    [2001] 1 AC 146, 173.    [Back]

Note 41    Para 1.32.    [Back]

Note 42    See, for example, Oneby (1727) 2 Ld Raym 1485; 92 ER 465.    [Back]

Note 43    Part IV, paras 4.29 – 4.68.    [Back]

Note 44    See Part XI, paras 11.23 – 11.28.    [Back]

Note 45    (1707) Kel J 119, 137; 84 ER 1107, 1115.    [Back]

Note 46    See Holmes v DPP [1946] AC 588, 598 per Viscount Simon.    [Back]

Note 47    [1949] 1 All ER 932.    [Back]

Note 48    In Part IV, paras 4.18 – 4.28.     [Back]

Note 49    Baillie [1995] 2 Cr App R 31.    [Back]

Note 50    (1953) Cmd 8932.    [Back]

Note 51    M’Naghten’s Case (1843) 10 Cl & Fin 200; 8 ER 718.    [Back]

Note 52    In Part VII.    [Back]

Note 53    A matter which is the subject of other work which we are currently undertaking as part of our project of codification of the criminal law of England and Wales in which we are revisiting Part I of the draft Criminal Law Code 1989.    [Back]

Note 54    Such a doctrine could have developed from Lord Holt’s judgment in Mawgridge (1707) Kel J 119; 84 ER 1107.    [Back]

Note 55    Whalley (1835) 7 Car & P 245; 173 ER 108, 110; Patients (1837) 7 Car & P 775; 173 ER 338, 338.    [Back]

Note 56    [1971] AC 814, 831.    [Back]

Note 57    [1995] 1 AC 482, 500.    [Back]

Note 58    Offences against the Person (1980) Cmnd 7844, para 288.    [Back]

Note 59    Criminal Law: Codification of the Criminal Law: A Report to the Law Commission (1985) Law Com No 143.    [Back]

Note 60    Criminal Law: A Criminal Code for England and Wales (1989) Law Com No 177.    [Back]

Note 61    (1988-89) HL 78-1, paras 86–89.    [Back]

Note 62    Section 300, exception 2.    [Back]

Note 63    The jurisdictions of Northern Territory, Queensland and Western Australia have criminal codes, none of which recognises the use of excessive force in self-defence as a partial defence to murder. The defence was first recognised at common law in 1957 (McKay [1957] VR 560) and subsequently abolished by the courts themselves in 1987 (Zecevic v DPP (Vic) (1987) 162 CLR 645). The defence was re-introduced in statutory form in South Australia in 1991 (Criminal Law Consolidation (Self-Defence) Amendment Act 1991) and in New South Wales in 2002 (Crimes Amendment (Self-Defence) Act 2001.    [Back]

Note 64    [1983] 1 SCR 265.    [Back]

Note 65    D Hume, Commentaries on the Law of Scotland, Respecting Crimes (4th ed 1844) vol 1, p 223 & p 227; A Alison, Principles of the Criminal Law of Scotland (1832) p 102; J Walker and D J Stevenson, Macdonald, A Practical Treatise on the Criminal Law of Scotland (5th ed 1948) p 131.    [Back]

Note 66    1950 JC 67.    [Back]

Note 67    1985 JC 76.    [Back]

Note 68    Interestingly, the Report of the House of Lords Select Committee on Murder and Life Imprisonment (1988-89) HL 78-1 concluded (para 89) that Scots law did recognise a partial defence of the use of excessive force in self-defence.    [Back]

Note 69    Part X.    [Back]