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URL: http://www.bailii.org/ew/other/EWLC/2003/173(11).html
Cite as: [2003] EWLC 173(11)
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PART XI
PREVIOUS RECOMMENDATIONS FOR REFORM OF DIMINISHED RESPONSIBILITY AND PROVOCATION11.1 In this Part we identify previous proposals which have been made, since the enactment of the Homicide Act 1957,[1] for reforming the two partial defences to murder. In doing this we have adopted for the most part a thematic approach. In addition, in relation to provocation, we refer briefly to the Parliamentary debate on clause 3 of the Homicide Bill as we believe that the content of the debate is helpful background in understanding why subsequent recommendations for reforming the law of provocation have been promulgated. The Parliamentary debate was in turn informed by the Royal Commission on Capital Punishment 1949 – 1953 Report.[2]
Diminished responsibility
The Report[3] of the Committee[4] on Mentally Abnormal Offenders
11.2 The Butler Report, having considered the operation of section 2 of the 1957 Act, addressed the issue of whether the defence of diminished responsibility should be abolished.[5] The issue was not, however, considered in isolation. The relevant section is entitled "The case for abolition of diminished responsibility and of the mandatory life sentence".[6] The justification for linking abolition of the defence with abolition of the mandatory life-sentence was:
11.3 The Butler Report was expressing the view, therefore, that the continued existence of the diminished responsibility defence could be justified only if the mandatory life sentence were retained. As a logical aside, the Report rejected the suggestion that the defence should be extended to other offences, despite the fact that some witnesses who appeared before the Committee had urged that it should.[8]Diminished responsibility is a special device for, as it were, untying the hands of the judge in murder cases. Although it has the subsidiary advantage of avoiding stigmatising as murderers certain individuals who may not be fully responsible for their actions, we think that the need for its continuance depends essentially on whether the fixed sentence of life imprisonment for murder is itself to remain.[7]
11.4 The Butler Report concluded[9] that in principle the continuance of the mandatory life sentence was unwarranted. Accordingly, the preferred avenue of reform involved the abolition of both the mandatory life sentence and the defence of diminished responsibility. Mindful of the fact, however, that it had previously referred to the "subsidiary advantage" of the defence, the Butler Committee recommended that:
11.5 The Butler Report did however acknowledge the possibility that, contrary to its wishes, the mandatory life sentence might be retained. In those circumstances, it proposed that:the jury [should be] … empowered to return a verdict of murder (or manslaughter) by reason of extenuating circumstances, the extenuation being left undefined by law.[10]
Section 2 of the Homicide Act [should be retained] in its essentials but [with] … an improvement in the wording.[11]
The recommendation as to "improvement in the wording" consisted of a proposal that the section should be reformulated in the following terms:
11.6 The implications of the reformulation were described in the following terms:Where a person kills or is a party to the killing of another, he shall not be convicted of murder if there is medical or other evidence that he was suffering from a form of mental disorder as defined in section 4 of the Mental Health Act 1959 and if, in the opinion of the jury, the mental disorder was such as to be an extenuating circumstance which ought to reduce the offence to manslaughter.[12]
11.7 In addition to proposing, should the mandatory life sentence be retained, that there be a reformulation of section 2 the Butler Report also proposed that:By tying the section to the definition of mental disorder in the Mental Health Act the formula provides a firm base for the testifying psychiatrists to diagnose and comment on the defendant's mental state, whilst it leaves the jury to decide the degree of extenuation that the mental disorder merits. In theory the omission of the reference to the impairment of mental responsibility would slightly widen the defence but that would not … matter because if the judge thought that the disorder was not such as would justify either a medical disposal or a mitigated penalty disposal, it would still be open to him to give the life sentence.[13]
(1) the legal burden of proof should no longer be on the accused. Instead the burden should be no more than one of adducing evidence to raise the issue,[14] and
11.8 The Butler Report's least favoured option for reform involved retaining the mandatory life sentence but abolishing the defence of diminished responsibility. The judge on a conviction of murder should have the discretion, where appropriate medical evidence was forthcoming, to make a hospital order or a probation order with a condition of psychiatric treatment in place of imposing the life sentence. He would still be able to impose a determinate sentence or to give a discharge.[16](2) it should be regarded as a proper practice for the prosecution, where it was in possession of evidence indicating that the defence could be made out, to charge manslaughter in the first instance rather than murder. If the defence, however, wished to resist evidence of mental disorder, the charge should be murder.[15]
11.9 This option was articulated without enthusiasm:
However, once the principle of a mandatory sentence is breached there is then no reason for preventing the full exercise of judicial discretion. Also the defendant, who may have been severely disordered at the time of the offence, may have recovered by the time of the trial, in which case a hospital order could not be made and a psychiatric probation order would be inappropriate.[17]
The Criminal Law Revision Committee[18]
11.10 In 1980 the CLRC published its Fourteenth Report.[19] The CLRC was divided as to whether the mandatory life sentence should be abolished. It concluded that it was not in a position to recommend any change.[20] It was not persuaded, therefore, that the option favoured by the Butler Report – abolition of both the mandatory life sentence and the defence of diminished responsibility – was the best way forward. It favoured[21] retention of both the mandatory life sentence and the defence of diminished responsibility.[22] It did agree, however, with the Butler Report that the wording of section 2 was unsatisfactory and in need of rewording.[23]11.11 The CLRC differed from the Butler Report, however, as to the form the rewording should take. After some hesitation it was persuaded that the definition of "mental disorder" in section 4 of the Mental Health Act 1959 was appropriate for the purposes of reformulating the wording of section 2.[24] The CLRC, however, preferred a formula which, instead of referring to mental disorder such as "to be an extenuating circumstance which ought to reduce the offence to manslaughter" required that it be:
11.12 The reason for this proposed departure from the recommendation of the Butler Committee was that it was felt that the latter's proposed reformulation on this point was too lax.[26] It would necessarily involve the judge giving:such as to be a substantial enough reason to reduce the offence to manslaughter.[25]
11.13 The CLRC also considered whether the defence should be available to a charge of attempted murder. It concluded that it should and if successfully pleaded should result in a conviction for attempted manslaughter.[28] At the same time, it recommended that diminished responsibility should not be extended to offences other than murder and attempted murder.[29]some guidance to the jury as to what extenuating circumstances ought to reduce the offence, and in practice that means that the mental disorder has to be substantial enough to reduce the offence to manslaughter … [T]he definition should be tightened up so as to include that ingredient upon which the jury will have to be directed …[27]
11.14 The CLRC agreed with the Butler Committee that the defendant should bear no more than an evidential burden.[30] The CLRC pointed out that it was unusual for the burden of proof to be placed on the defendant in serious charges. In addition, the CLRC felt that juries were likely to be confused both by the difference between being sure and satisfied on a balance of probabilities and by "the different placings of the burden of proof for different offences".[31] The CLRC agreed with the Butler Committee that the burden of proof lies on the prosecution in relation to both insanity and diminished responsibility.
The Law Commission
11.15 Although the Law Commission had originally adhered to the view that if the mandatory life sentence was abolished[32] so too should the defence of diminished responsibility, by 1989 it was of the opinion that the defence (and also provocation) should be retained regardless of whether the mandatory sentence was retained.[33] The Commission had been persuaded that it would be wrong to treat diminished responsibility (and provocation) as simply questions of judicial sentencing discretion.[34]11.16 In 1989 the Law Commission published a draft Criminal Code Bill together with Report and Commentary.[35] Clause 56 of the draft Bill adopted the CLRC's definition of diminished responsibility with one qualification which consisted of the substitution of "mental abnormality" for "mental disorder".
11.17 The Law Commission did not include any provision in the draft Criminal Code Bill in relation to incidence of the burden of proof. In its Memorandum to the House of Lords Select Committee on Murder and Life Imprisonment it did, however, state:
11.18 In its Memorandum the Law Commission did not address the issue of whether the defence (or provocation) should be extended to attempted murder.We agree with the CLRC's recommendation that, as in the case of provocation, a defendant pleading diminished responsibility should only have to adduce enough evidence to raise the issue.[36]
The House of Lords Select Committee on Murder and Life Imprisonment[37]
11.19 In its Report[38] the Select Committee, unlike the CLRC, recommended that the mandatory life sentence should be abolished. In agreement with the reasoning of the majority of the CLRC, however, it recommended that the defence of diminished responsibility should be retained regardless of whether or not the mandatory life sentence was retained.[39]11.20 The Select Committee, acknowledging that "weighty criticism" had been made of the substance of the defence, stressed that consideration of the "technical problems" associated with the defence was outside its terms of reference. Accordingly, it confined itself to noting that the issues had been considered by the CLRC and that the recommendations of the CLRC had been incorporated by the Law Commission into the draft Criminal Code.[40]
Criticism of previous approaches to reform
11.21 Professor Mackay maintains that the approach adopted by all law reform bodies has failed to pose a fundamental question:
what reform bodies have failed to address is whether it is desirable to retain a diminished responsibility plea in any form irrespective of whether the mandatory penalty for murder is retained or abolished. In this context, it is noteworthy that, while different jurisdictions rarely dispute the need for some form of insanity defence within the structure of criminal law excuses, there is not the same degree of consensus in relation to diminished responsibility.[41]
It should be pointed out that Professor Mackay's criticism overlooks the deliberations of both the CLRC and the Select Committee. Both bodies did consider whether the defence should be retained even if the mandatory life sentence was abolished. What is apparent, however, is that previous discussion has tended to assume that the case for the existence of a defence of diminished responsibility, whatever its form, is self-evident so long as there is the mandatory life sentence. It is because of this that discussion has focused on reforming the defence. In this sense, Professor Mackay is correct in suggesting that a fundamental question has been ignored.
Provocation
The Homicide Bill 1957 – the Parliamentary debate
11.22 Clause 3 of the Bill was the subject of extensive debate in the course of its passage through Parliament. The focus of the debate centred on whether the "reasonable man" test should be incorporated into the statute. The appropriateness of the "reasonable man" test had previously been addressed in the Royal Commission's Report[42] which, after noting conflicting tendencies in the evolution of the law, stated:
It is a fundamental principle of the criminal law that it should be based on a generally accepted standard of conduct applicable to all citizens alike, and it is important that this principle should not be infringed. Any departure from it might introduce a dangerous latitude into the law. Those idiosyncrasies of individual temperament or mentality that may make a man more easily provoked, or more violent to his response to provocation, ought not, therefore, to affect his liability to conviction, although they may justify mitigation of sentence. We think that this argument is in principle sound, at least so far as minor abnormalities of character are concerned. …
Nevertheless we feel sympathy with the view which prompted the proposal that provocation should be judged by the standard of the accused. … The jury might fairly be required to apply the test of the "reasonable man" in assessing provocation if the judge were afterwards free to exercise his ordinary discretion and to consider whether the peculiar temperament or mentality of the accused justified mitigation of sentence. It is less easy to defend the application of a test in murder cases where the judge has no such discretion.
11.23 In the debate on the second reading of the Homicide Bill[44] and at the Committee stage[45] in the House of Commons and to a lesser extent on the second reading[46]and at the Committee stage[47] in the House of Lords, there was argument over the "reasonable man" test. In the House of Commons the opposition spokesman, Mr Greenwood MP, cited the case of a defendant who had fought as a partisan in Yugoslavia during World War II. After the war he came to England and killed a fellow countryman, a quisling, who had jeered at the fact that the defendant's family had been killed by the Germans. Mr Greenwood said:We have no doubt that if the criterion of the "reasonable man" were strictly applied by the courts and the sentence of death was carried out in cases where it was so applied, it would be too harsh in its operation. In practice, however, the courts not infrequently give weight to factors personal to the prisoner in considering a plea of provocation and where there is a conviction of murder such factors were often taken into account by the Home Secretary and may often lead to commutation of the sentence. The application of this test does not therefore lead to any eventual miscarriage of justice. … In these circumstances we do not feel justified in recommending any change in the existing law".[43]
11.24 He was supported by other MPs, including Mr Paget, who said that he hoped the clause would be amended so as "to provide that a man should be judged on the basis of who he is instead of on a fiction that he is somebody else."[49][The defendant] was hanged, the plea of provocation not being accepted. I should have thought that in such a case the test should not have been the affect of the jeers on a reasonable man but the effect of the jeers on a man in [the defendant's] tragic circumstances".[48]
11.25 In Committee, Mr Greenwood moved to amend the clause to delete the word "reasonable". He argued that:
11.26 He added:Our contention is that it is quite arbitrary and unfair to take as the test the effect the provocation would have on a reasonable man. We say that the test ought to be the effect of the provocation upon that man, in those circumstances, and in the light of all the evidence which is available to the court.
11.27 The amendment, opposed by the Government, was defeated. The Attorney General, Sir Reginald Manningham-Buller, argued that the test of the "reasonable man" was essential and that to allow the jury to consider the effect of provocation on the individual concerned would be detrimental as it would enable the jury to take into account such factors as bad temper.[51] The Lord Chancellor subsequently stated, in the House of Lords, that the "reasonable man" test was necessary in order to hold all citizens to a "generally accepted standard of conduct".[52]I think it is really monstrous that we should seek to apply to anybody in the position and condition of Ruth Ellis or the Yugoslav to whom I have referred a test which may be perfectly proper in the case of a reasonable man.[50]
11.28 A significant feature of the debate in both Houses was a lack of any awareness that there might be a meaningful distinction between taking account of a defendant's characteristics for the purpose of assessing the gravity of the provocation as opposed to taking account of them for the purpose of determining the standard of self-control.
The Criminal Law Revision Committee
11.29 In 1976 the CLRC published a Working Paper on Offences against the Person. It contained provisional proposals for reforming the defence of provocation. Having considered responses, it published in 1980 its Fourteenth Report,[53] by which time the House of Lords had delivered judgment in Camplin.[54]11.30 The CLRC, having referred to the passage in Camplin in which Lord Diplock stated how the jury should be directed, commented:
The decision in Camplin represents a substantial step in the direction of the reform which we proposed in our Working Paper. It does not go the whole way.[55]
The concluding enigmatic remark is best explained by the fact that the decision in Camplin reflected the statutory language (the "reasonable man") whereas what the CLRC had provisionally proposed was a test which discarded the concept. There is, however, another possible interpretation. In saying that Camplin "does not go the whole way" it is possible that the CLRC was interpreting the decision, and in particular the judgment of Lord Diplock, in the same way as the minority in Smith (Morgan).[56] In other words the CLRC interpreted Lord Diplock as drawing a distinction between characteristics of the defendant which go to the gravity of the provocation and characteristics impacting on the standard of self-control to be expected. If that is correct Camplin "does not go the whole way" because in the opinion of the CLRC, in contrast to the opinion of the minority in Smith (Morgan), characteristics of the defendant should impact on the standard of self-control.
11.31 The principal recommendation of the CLRC, confirming what it had provisionally proposed in the Working Paper, was that:
11.32 The CLRC further recommended that the defendant should be judged with due regard to all the circumstances, including any disability, physical or mental, from which he suffered.[58] It was of the view that, if its recommendations were accepted, there might be many more cases where a jury would return a verdict based on both provocation and diminished responsibility.[59]in place of the reasonable man test the test should be that provocation is a defence to murder if, on the facts as they appeared to the defendant, it can reasonably be regarded as a sufficient ground for the loss of self control leading the defendant to react against the victim with a murderous intent. This formulation has some advantage over the present law in that it avoids reference to the entirely notional "reasonable man", directing the jury's attention to what they themselves consider reasonable – which has always been the real question.[57]
11.33 Although, it is not free from doubt, the better view is that the CLRC, while wishing to discard the "reasonable man" test, was not advocating that in determining whether the defendant's loss of self-control was reasonable, the jury was entitled to take into account all the characteristics which were peculiar to the defendant. It is suggested that the phrase "on the facts as they appeared to the defendant" was intended to refer to the gravity of the provocation. This interpretation is supported by the wording of the relevant provision in the draft Criminal Law Code.[60]
11.34 The CLRC did not want to change the perceived rule that there can be no defence of provocation where the defendant's reaction is delayed, but it was of the view that previous provocations should be capable of being taken into account when assessing the gravity of the final provoking act or word.[61] It also recommended retention of the rule[62] that the provoker need not be the victim.[63]
11.35 The CLRC also recommended that the defence should be available where the charge was attempted murder.[64] In support of its recommendation it stated:
if killing under provocation is a crime less than murder, it would look unjust to convict the unsuccessful attempter of an attempt to commit a greater crime. Suppose that a man finds his wife in bed with her lover and stabs both of them: the lover dies, but the wife survives. The verdict is guilty of the manslaughter of the lover (by reason of provocation). It would be strange if the verdict in respect of the wife had to be one of attempted murder.[65]
The CLRC concluded, however, that the defence should be confined to murder and attempted murder.
The Law Commission
11.36 The purpose of Clause 58 of the draft Criminal Code Bill was described in the Commentary as being to "give effect" to recommendations of the CLRC.[66] The Clause is illuminating, therefore, in so far as it sheds light on what the Law Commission understood the CLRC's recommendations to be. Clause 58 states that a person, who would be guilty of murder, is not guilty of murder if:
(a) he acts when provoked (whether by things done or by things said or by both and whether by the deceased person or by another) to lose his self-control; and
11.37 The implication is clear. The Law Commission understood the CLRC to have recommended that the concept of the "reasonable man" be discarded and for personal characteristics of the defendant to be taken into account but only for the purpose of assessing the gravity of the provocation.(b) the provocation is, in all the circumstances (including any of his personal characteristics that affect its gravity) sufficient ground for the loss of self-control.[67]
The Select Committee on Murder and Life Imprisonment
11.38 In its Report,[68] the Select Committee, as with diminished responsibility, recommended for the same reasons that the defence should be retained regardless of whether or not the mandatory life sentence was abolished. It noted that the "technical problems" relating to the defence had been considered by the CLRC and that its recommendations (including eliminating the concept of the reasonable man) had been incorporated by the Law Commission into the draft Criminal Code.[69]
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Note 1 In this Part referred to as “the 1957 Act”. [Back] Note 2 (1953) Cmd 8932; in this Part referred to as “The Royal Commission’s Report”. [Back] Note 3 (1975) Cmnd 6244; in this Part referred to as “the Butler Report”. [Back] Note 4 In this Part referred to as “the Butler Committee”. [Back] Note 5 The Butler Report, at paras 19.8 - 19.13. [Back] Note 7 Ibid, at para 19.8. (emphasis added) [Back] Note 8 The Butler Report, at para 19.9. The Royal Commission’s Report had contemplated such a possibility – see para 413 of that Report. [Back] Note 9 The Butler Report, at paras 19.12 - 19.13. [Back] Note 10 Ibid, at para 19.16. [Back] Note 11 Ibid, at para 19.17. [Back] Note 14 Para 19.18. The Butler Report proposed that where a defendant pleaded insanity he should no longer have to bear the legal burden and it was thought that the position should be the same for diminished responsibility. [Back] Note 16 The Butler Report, at para 19.20. [Back] Note 18 In this Part referred to as “the CLRC”. The recommendations of the CLRC in relation to both diminished responsibility and provocation were made alongside a recommended change to the mens rea requirements of murder. The CLRC recommended (para 31) that the mens rea should consist either of an intention to kill or, where death was caused by an unlawful act, an intention to cause serious injury knowing that the act involved a risk of causing death. [Back] Note 19 Offences against the Person (1980) Cmnd 7844. [Back] Note 20 Ibid, at para 61. [Back] Note 21 In the negative sense that, because it was divided, it felt unable to recommend any change. [Back] Note 22 The CLRC did in fact consider whether the defence of diminished responsibility should be retained even if the mandatory life sentence was abolished. Again the Committee was divided. The majority were of the view (Cmnd 7844, at para 76) that the defence should be retained, the reason being that the jury’s verdict, accepting or rejecting the defence, would assist the judge in sentencing. Further, if the defence was abolished there was a risk that the jury might be reluctant to convict of murder in a clear case of diminished responsibility. Rather than leaving the jury with a choice of convicting of murder or acquitting, it was to the public advantage to give them the choice of an intermediate verdict. Finally, a verdict of manslaughter on the ground of diminished responsibility, as opposed to murder, would better enable the public to understand and accept why a seemingly light sentence had been passed in a case where a human life had been taken. [Back] Note 23 Offences against the Person (1980) Cmnd 7844, at para 92. [Back] Note 24 Ibid. Initially, on this particular issue, the CLRC had expressed concern that the Butler Committee’s rewording was too restrictive in that some offenders who would come within section 2 as originally enacted would fall outside the terms of the proposed reformulation, for example a depressed father who killed his severely handicapped subnormal child or a morbidly jealous person who killed his or her spouse. The concern of the CLRC was that such persons might not be considered to be suffering from a “mental disorder” for the purpose of the reformulated section. [Back] Note 25 Ibid, para 93. (emphasis added) [Back] Note 27 Ibid. The CLRC also contemplated the formulation “the mental disorder was of such a degree as to be a substantial reason to reduce murder to manslaughter”. This and a similar formulation, while not completely rejected, were considered to be less satisfactory formulations on the ground that it is not possible to measure degrees of mental disorder. [Back] Note 28 Ibid, at para 98. Its reasons will be referred to when we consider its proposals in relation to the defence of provocation - see para 11.35. [Back] Note 30 Ibid, at para 94. [Back] Note 32 The Law Commission favoured the abolition of the mandatory life sentence – see Minutes of Evidence taken before the Select Committee on Murder and Life Imprisonment (HL Paper 20-vi), Session 1988-89, Memorandum by the Law Commission, para 9.16. [Back] Note 33 Ibid, at para 7.3. [Back] Note 34 I> Ibid. The stigmatisation argument was emphasised. [Back] Note 35 Criminal Law: A Criminal Code for England and Wales, Volumes 1 and 2 (1989) Law Com No 177. [Back] Note 36 Minutes of Evidence taken before the Select Committee on Murder and Life Imprisonment (HL Paper 20-vi), Session 1988-89, Memorandum by the Law Commission, para 7.6. Although the Law Commission was favouring a change in the law, the nature of the codification exercise did not permit it to include a clause to that effect in the draft Criminal Law Code. [Back] Note 37 In this Part referred to as “the Select Committee”. [Back] Note 38 Report of the Select Committee on Murder and Life Imprisonment (HL Paper 78—1). [Back] Note 39 Ibid, at para 83. [Back] Note 40 Ibid, at para 85. [Back] Note 41 R D Mackay, Mental Condition Defences in the Criminal Law (1995) p 204. (emphasis added) [Back] Note 42 (1953) Cmd 8932. [Back] Note 43 Ibid, at paras 143-145. [Back] Note 44 Hansard (HC) 15 November 1956, vol 560, col 1164. [Back] Note 45 Hansard (HC) 28 November 1956, vol 561, col 501. [Back] Note 46 Hansard (HL) 21 February 1957, vol 201, col 1180. [Back] Note 47 Hansard (HL) 7 March 1957, vol 202, col 372. [Back] Note 48 Hansard (HC) 15 November 1956, vol 560, col 1164. [Back] Note 49 Hansard (HC) 15 November 1956, vol 560, col 1240. [Back] Note 50 Hansard (HC) 28 November 1956, vol 561, cols 501 – 502. The implication being that he thought that the Royal Commission’s report had been too sanguine in its assessment that the application of the “reasonable man” test did not lead to miscarriages of justice. [Back] Note 51 Hansard (HC) 28 November 1956, vol 561, col 504. [Back] Note 52 Hansard (HL) 7 March 1957, vol 202, col 374. [Back] Note 53 Offences against the Person (1980) Cmnd 7844. [Back] Note 55 Offences against the Person (1980) Cmnd 7844, at para 78. [Back] Note 56 [2001] 1 AC 146. [Back] Note 57 Offences against the Person (1980) Cmnd 7844, at para 81 (emphasis added). As to the mens rea for murder which was recommended by the CLRC, see n 18. [Back] Note 58 Ibid, at para 83. [Back] Note 60 See para 11.36. [Back] Note 61 Offences against the Person (1980) Cmnd 7844, at para 84. [Back] Note 62 Davies [1975] QB 691. [Back] Note 63 Offences against the Person (1980) Cmnd 7844, at para 85. [Back] Note 64 Ibid, at para 98. [Back] Note 66 Criminal Law: A Criminal Code for England and Wales (1989) Law Com No 177, vol 2, para 14.18. More precisely, to give effect to particular recommendations. Thus, the draft Criminal Code does not reflect the CLRC’s recommendation in relation to extending the defence to attempted murder. [Back] Note 67 Ibid, vol 1, at p 68. (emphasis added) [Back] Note 68 Report of the Select Committee on Murder and Life Imprisonment (HL Paper 78—1). [Back]
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