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You are here: BAILII >> Databases >> The Law Commission >> Partial Defences to Murder (Consultation Paper) [2003] EWLC 173(12) (15 October 2003)
URL: http://www.bailii.org/ew/other/EWLC/2003/173(12).html
Cite as: [2003] EWLC 173(12)
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PART XII
OPTIONS FOR REFORM
12.1 In Part I[1] we stated that we are not adopting our usual practice of setting out provisional proposals. Instead, in this Part we confine ourselves to identifying and considering various options for reform. We do, however, indicate those options which at the moment we believe are untenable. Otherwise, we endeavour to identify arguments for and against each option which are not necessarily mutually exclusive. Our terms of reference do not permit us to consider the option of extending the partial defences to offences other than murder. Accordingly we do not consider reforming attempted murder.Introduction
12.2 We do not believe that the law of provocation should remain as it is. We have examined the problems of the present law in detail in Part IV. They are deep and wide. The moral, theoretical and practical difficulties go beyond the "reasonable man" test. They begin with the meaning of provocation. There are also severe difficulties associated with the requirement that there must be a sudden and temporary loss of self-control.Provocation
12.3 As we said in Part I,[2] whatever view is taken about the merits of the decision of the majority in Smith (Morgan),[3] few would dispute Lord Hoffmann's statement that the law of provocation in its present form has "serious logical and moral flaws".[4] Nobody could study the recent decisions of the House of Lords, the Privy Council and the Court of Appeal, to which we have already referred,[5] without an increasing sense of confusion. The late Professor Sir John Smith concluded a penetrating commentary on Smith (Morgan) with the words "What a muddle!"[6]
12.4 The moral and theoretical difficulties might not be thought to matter if in practice the defence was functioning in a reasonably clear and satisfactory way, but it is not. The decisions of appellate courts, not only in this jurisdiction but in other common law countries, have shown how difficult courts have found it to make the law of provocation work satisfactorily in modern societies which are very different from those in which the defence first developed. In the light of that experience we are of the view that its defects are not curable by judicial development of the law.
12.5
12.6
12.7 Do consultees agree:
(1) that the law of provocation is unsatisfactory; and
12.8 If so, the options are to abolish the defence or to retain it in a modified form. This involves moral considerations. It also involves practical and definitional issues. We consider whether a defence of provocation is not only morally sound but capable of satisfactory formulation. The Royal Commission on Capital Punishment described the defence as an attempt to reconcile the preservation of the fixed penalty for murder with a limited concession to human weakness, which suffered from the defects of a compromise.[7] Since then the defence has been the subject of repeated examination and continuous development, but, as we have observed, its present state is both unclear and unsatisfactory. The study of the subject in this and other common law jurisdictions causes us to have great doubt whether a satisfactory version of the defence can be devised. The New Zealand Law Commission recently concluded that it could not and therefore recommended its abolition as a defence.[8](2) that its defects are beyond cure by judicial development of the law?
12.9 In the paragraphs which follow we begin by inviting consultees to consider the matter from a moral viewpoint. We then examine the alternatives of abolition and retention in a modified form, setting out arguments (moral and practical) for and against them. In discussing retention in a modified form, we look separately at the different elements or possible elements of the defence and consider various options. The object of the exercise is to see whether a version can be found which is coherent, sound in principle, workable in practice and would command public support. To this end we ask consultees a number of questions. We hope they will not feel unduly constrained by the form of those questions. What we want to know overall is whether consultees favour abolition or retention and, if the latter, in what form.
12.10 The arguments about the defence of provocation inevitably involve consideration of the mandatory sentence. We do not address wider arguments about the mandatory sentence, which would be outside our terms of reference, but it is impossible to consider the question (which is within our terms of reference) whether the defence of provocation should be abolished, without considering the mandatory sentence in that context. The same comment applies to the other partial defences or possible defences to murder which we have been asked to examine as part of this project.
12.11 We begin by inviting consultees to consider the matter from a moral viewpoint.
12.12 Most legal systems grade homicide according to culpability. It is beyond our terms of reference to consider general questions about the definition of murder in English law and the boundary between murder and manslaughter. Here, we consider whether certain instances where a defendant kills with the intention required for murder should be regarded as having features which so reduce the defendant's moral culpability as to justify classifying the killing as a lesser offence than murder.The moral viewpoint
12.13 Two possible bases have been advanced for treating a killing under provocation as morally less reprehensible than murder. They have been referred to as justificatory and excusatory bases, and we adopt these terms for convenience.
12.14 The essence of the justificatory basis is that a killing should be regarded as morally less reprehensible than murder where the victim carries responsibility for making the defendant lose his or her temper. The essence of the excusatory basis is that the killing should be regarded as morally less reprehensible than murder where (with or without any blameworthiness on the part of the victim) the defendant was in such a state as not to be able to exercise self-control and therefore not fully responsible for his or her actions.
12.15 As to the justificatory basis, many would challenge the idea that in today's society the provocative behaviour of a victim should ever be regarded as partial justification for a defendant responding by killing with the intent required for murder. Such circumstances, however, might merit a high degree of mercy in the sentence. On this basis, provocation should not afford a defence but should be available as a mitigating factor in the passing of sentence.
12.16 The contrary argument is that a killing, even with the intent required for murder, induced by a loss of self-control aroused by provocative behaviour on the part of another such that an ordinary person might react in the same way, may be morally less culpable than an unprovoked killing and ought to be capable of being categorised as a lesser offence.
12.17 As to the excusatory basis, there is an obviously strong moral case for saying that those who commit crimes because they are suffering from recognised mental abnormalities should receive special treatment. It is not so obvious that this should require treating them as guilty of a lesser offence if, though suffering from mental abnormality, they have the mental capacity to be guilty of the crime charged. That point is more relevant to the discussion of diminished responsibility. However, many would deny that there is a moral basis for treating those who do not suffer from such abnormality, but who kill with the intent required for murder in loss of temper, as guilty of a lesser offence than murder merely because personal characteristics (whether congenital or acquired) made them prone to loss of temper.
12.18 The contrary argument is that those who kill with the intent for murder because of a loss of temper resulting from personality factors beyond their own control are morally less culpable than they would otherwise be and that such a killing should therefore be classified as a less serious offence than murder.
12.19 If the moral basis of a defence of provocation is the first ground (justificatory) it would follow that the defence ought to be confined accordingly. On such a moral basis the focus would be on the wrongful conduct of the victim which, by provoking the defendant, "justified" the defendant's outburst which led to the killing.
12.20 If the moral basis of a defence of provocation is the latter ground (excusatory), the ambit of the defence would be much broader. The term "provocation" implies blameworthiness on the part of the provoker. It may be a misleading name for the defence.
12.21 Do consultees consider that, morally speaking:
(1) a killing with the intent required for murder should be classified as murder notwithstanding any amount of provocation or loss of self-control; or
(2) there ought to be a partial defence, leading to a conviction for manslaughter, based:
(a) on the narrower (justificatory) ground; or
12.22 We have posed the moral questions as succinctly as possible, but we are conscious that they can be developed much more fully. We now consider the options of abolition or retention in a modified form. We set out various possibilities and the arguments for and against them.(b) on the broader (excusatory) ground?
12.23 Arguments for abolishing the partial defence follow.Abolition of the defence
(1) It is an anomaly because:
(a) it does not operate as a defence, complete or partial, to any offence other than murder;
(b) its existence as a partial defence to murder arose solely because of the mandatory death sentence (now the mandatory life sentence).
(2) It only comes into play if the defendant is proved to have committed the actus reus of murder together with the mens rea for murder. It is, therefore, in truth, no more than a mitigating factor which ought to go to sentence but cannot because of the mandatory life sentence.
(3) It is theoretically objectionable because the defendant is being convicted of an offence (manslaughter) despite having the mens rea of a greater offence (murder).
(4) It has elements both of partial justification and partial excuse and, as a result, is hopelessly compromised.
(5) It encourages a culture of "blaming the victim". The trial process focuses, sometimes to the acute distress of the deceased's family and friends, on the deceased's behaviour rather than that of the defendant.
(6) It results in victims' lives being undervalued because their killer is not labelled a murderer despite having the mens rea of murder.
(7) It places a premium on one particular emotion, namely anger, and (at least in its traditional form) one particular form of anger, namely sudden rage, which is often associated with jealousy. This in turn renders the defence gender biased as men are more likely than women to kill as a result of sudden rage and loss of self-control fuelled by jealousy. The emphasis is placed on partially excusing acts due to loss of self-control. This fails to recognise that women who kill their husbands or partners may do so out of desperation and as a response to anticipated, although not imminent, danger. The defence, therefore, operates as a concession not to human frailty but to the male temperament and, as a result, operates in a discriminatory manner. It serves to perpetuate male violence.
(8) It is capable of affording a partial defence to those who kill in anger but those who are induced to kill out of a more creditable emotion, for example compassion, may be unable, or at least have far greater difficulty, in establishing the defence.[9]
12.24 Arguments against abolition of the partial defence are these.(9) These defects are not remediable by reform of the defence.[10]
(1) "In principle, there are significant moral distinctions between murder, killing upon provocation, and killing while suffering from diminished responsibility, and we should think hard before abandoning all hope of designing a law to capture those distinctions".[11]
(2) It is erroneous to focus exclusively on the mandatory life sentence as the justification for the partial defence. Even if the mandatory life sentence were abolished there is a requirement of "fair labelling". The defence of provocation serves a valuable function. It ensures that persons who, despite having the mens rea of murder, are less culpable because of provocation, do not suffer the stigma which attaches to a conviction for murder.[12] Any theoretical shortcomings are outweighed by the valuable function it performs.
(3) Abolition would result in a jury having either to convict or to acquit of murder. There would be a risk, even if the mandatory life sentence were abolished, that a jury, whose sympathy for the defendant is evoked by the circumstances of the killing, would be reluctant to convict, despite very strong evidence that the defendant killed with the mens rea for murder. The risk might be most acute in those cases where, in the absence of the partial defence, the defendant should be convicted of murder on the basis not of an intent to kill but an intent to inflict grievous bodily harm.[13]
The danger would be reduced, but not eliminated,[14] if the partial defence were confined to cases where the defendant intended to cause grievous bodily harm, but not to kill.
(4) If provocation and the mandatory life sentence were both abolished, there would be cases of murder where the judge might be of the view that, in the light of the nature and extent of the provocation endured by the defendant, a non-custodial sentence was justified, particularly if satisfied that the defendant intended no more than the infliction of grievous bodily harm.[15] A conviction for murder has traditionally involved an emphatic denunciation of the defendant. It is questionable whether the public would be receptive to the notion that those classified by the law as murderers should receive non-custodial sentences. The community is more likely to accept reduced sentences following conviction of manslaughter by a jury.
(5) Abolition of the defence without also abolishing the mandatory life sentence would expose more defendants to the mandatory life sentence in circumstances where their culpability was substantially reduced and where the life sentence is not necessary to protect society from the risk of future serious harm from the defendant. The defence is an acknowledgement that there are cases of unlawful killing which merit being viewed by the law with a degree of compassion and that a mark of a civilised society is a capacity to act compassionately.
(6) The theoretical objection that the defendant should not be convicted of a lesser offence if he or she has the mens rea of a more serious offence, is overstated. It ignores the distinction between the conception of criminal liability which views mens rea in terms of knowledge and foresight of consequences and the conception of criminal liability which views mens rea in terms of culpability. The provoked killer has mens rea in the former sense, but only a reduced form in the latter, because he or she is not completely to blame for the killing.
12.25 We are of the opinion that a recommendation that the defence be abolished would necessarily incorporate a recommendation that the mandatory sentence be abolished, since the argument that provocation should be taken into account (as appropriate) in determining sentence rather than as a special defence necessarily implies that the sentence should not be fixed by law.(7) Disputed issues of fact ought to be decided as far as is possible by juries. The defence of provocation is a means of involving the community, through the jury, in the process of determining the degree of an accused's culpability. If the defence and the mandatory life sentence were both abolished, it would be the judge, for the purposes of determining the appropriate sentence, who would be the ultimate arbiter of these major issues of fact.[16]
12.26 Against this view it might be argued that abolition of the defence of provocation would not necessitate abolition of the mandatory sentence because:
(1) just allowance for mitigating factors, including provocation, could be made within the mandatory sentence system by setting, where appropriate, a reduced "tariff period" (the minimum period of imprisonment which a person convicted of murder is required to serve before he or she may be released on licence); and
12.27 We see serious problems with both these arguments.(2) those who kill in anger, with the intent required for murder, should never receive less than a life sentence; by contrast, those who kill in fear, but exercise force beyond the limits of lawful self-defence, should be entitled to a separate partial defence.
(1) Our terms of reference do not extend to a general examination of sentencing for manslaughter on the ground of provocation. However, there is a large (some would argue, too large) difference between (a) the maximum determinate sentence likely to be passed for manslaughter on the ground of provocation and (b) the minimum tariff period likely to be set on conviction for murder. Broadly speaking, the first is in the region of 7 years, which in many cases will result in an actual period of imprisonment of 5 years or less. Any person convicted of murder is likely to serve a term of imprisonment twice as long and probably longer. If provocation were abolished as a defence, but the mandatory sentence retained, tariff setting would have to be considered for a whole new range of killers.
(2) To make no significant allowance in sentence for the factors which, under present law, result in a verdict of manslaughter would in many cases be unjust. In exceptional circumstances these factors might even warrant a non-custodial sentence. Additionally, taking into account these factors to set an appropriate tariff period (perhaps, in some circumstances, as low as several months) might result in a person being sentenced to life imprisonment, but released after a significantly shorter period. This result may be viewed by some, particularly the general public, as defeating the purpose of a mandatory life sentence.
(3) A new partial defence or defences of excessive or pre-emptive self-defence would cover some cases which presently result in conviction for manslaughter on the ground of provocation. However, these are not the only cases which may merit considerable compassion in sentencing. Consider the following examples.
(a) D, an Asian parent, returns home to find two white men raping D's fifteen-year-old daughter. On D's arrival the men run off. Angry and distraught, D gives immediate chase and fatally stabs one of them.
(b) D, a fifteen-year-old boy with a marked physical handicap, is persistently taunted by a group of youths about his handicap and is called offensive names. He tries to ignore them until one day he loses his temper and picks up a heavy stick. The group is delighted to have caused a reaction and the ringleader, V, jeers at him saying, "Go on – you haven't got the guts to use it". D lashes out at him with the stick, hitting him across the head with great force and causing a sub-dural haemorrhage from which V dies.
(c) D is a victim of persistent blackmail by B. B visits D in D's flat and demands immediate payment. D, incensed, gets a knife from the kitchen and stabs B from behind, killing him.[17]
(d) D's marriage is broken up when his wife is seduced by a wealthy adventurer, V. D is distraught. One day D hears V boasting in a pub of his sexual victories, including with Mrs D. D gets up to leave. V notices him and taunts him. D sees red, picks up a bottle and brings it down on V's head, causing a fractured skull from which V dies.
(e) D's teenage son falls into the hands of a heroin dealer. One day D returns to find the heroin dealer at his home. Enraged, D picks up a weapon and kills him.
None of these cases would fall within an extended version of self-defence. We do not believe that the general public would consider a sentence of life imprisonment to be appropriate in any of them.
(4) If the law were to impose a mandatory sentence which the jury did not believe to be fair, there would be serious risk that some juries would avoid the consequences by a legally perverse verdict. For example, a jury might return a verdict of manslaughter on the ground of lack of intent to cause death or grievous bodily harm, despite overwhelming evidence of intent. Alternatively, a jury may return a manslaughter verdict on the ground of diminished responsibility, taking an extremely broad view of what could constitute abnormality of mind. This would tend to bring the law into disrepute.
12.28 Do consultees favour:(5) We know of no common law system where provocation has been abolished but a mandatory sentence of life imprisonment retained, nor of any law reform body which has made such a recommendation.
(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?
What are their principal reasons?
12.29 If the defence is to be retained in a modified form, its form should reflect its intended moral basis. It should also be capable of working in practice. In particular it should be defined in such a way that:Retention of the defence of provocation in a modified form
(1) juries can be given uncomplicated directions in terms which they will understand and find easy to apply;
(2) it leads to consistency in its application (within the margin of uncertainty which is inherent in any jury system); and
12.30 It is convenient to consider the parameters of a possible reformed defence of provocation under the headings:(3) it does not lead to frequent appeals.
(1) the provocative matter;
(2) its effect on the defendant;
(3) the reasonableness of the defendant's response,
and then to consider possible limitations not already considered.
12.31 If the moral basis of the defence is justificatory, that is, that the provoker is in part to blame for arousing the defendant's anger, the defence ought to be defined in such a way that this would form an integral part of it. An example is provided by section 232 of the Canadian Criminal Code, which requires that there must have been a wrongful act or insult.The provocative matter
12.32 If the basis of the defence is excusatory, there would be no need to confine it to cases where the defendant acted in response to wrongful or insulting conduct. The defence could apply to a killing triggered by an act or occurrence which did not involve objectionable conduct on the part of another.
12.33 If the narrower approach is adopted, the question also arises whether the doctrine should be strictly limited to cases where the victim acted offensively towards the defendant or whether it should include cases where:
(1) the provoker's conduct was directed at someone closely related to the defendant;
(2) the defendant acted under a mistaken (perhaps reasonable) belief about the fact which, if true, would have amounted to provocation;
12.34 If provocation is to be retained in a modified form,(3) the defendant accidentally killed someone other than the provoker.
(1) do consultees favour the narrower (justificatory) or broader (excusatory) approach to what may be considered provocation; and
(2) if the narrower, would they favour including within it any or all of cases in paragraph 12.31(1),(2) and (3) above?
12.35 At the time of the Homicide Act 1957[18] it was a requirement of the defence of provocation that the defendant killed the deceased in a sudden and temporary loss of self-control. If there was time for reflection between the provocation and the killing, the defence was negatived. This is no longer taken to be the law, but there still has to be, at least in theory, a sudden and temporary loss of self-control at the time of the killing. The law has become confused, and the problem is not solved by use of metaphors like "slow burn" reaction. There is a real problem reconciling a considered response with a sudden and temporary loss of self-control. If the defence of provocation is to be retained, it is therefore necessary to consider as a matter of principle whether it should require a loss of self-control and, if so, whether the loss of self-control should be required to be sudden and temporary.Effect on the defendant – a sudden and temporary loss of self-control
Loss of self-control
12.36 An alternative approach to requiring a loss of self-control would be to require that the defendant acted under "extreme … emotional disturbance" (a phrase used in the Model Penal Code).[19]12.37 Arguments for replacing the test of loss of self-control follow.
(1) If the defendant has truly lost his "self-control" the relevant defence might be thought to be lack of intent or automatism. What is envisaged, therefore, is something less than total loss of self-control. It must mean something less than irresistible impulse (itself a concept which raises profound philosophical, medical and practical difficulties) but how much less? The degree of loss of self-control required to satisfy the defence of provocation is uncertain and is not capable of being defined satisfactorily. Juries will be left with the assistance of nothing more than time-honoured metaphors such as "blood boiling". Such phrases may have worked (or been thought to work) in the past, when the concept was limited to immediate outbursts of rage, but are inapt to cater for cases of cumulative abuse resulting in delayed reaction.
(2) The problem of satisfactorily defining "loss of self-control" cannot be overcome by medical and/or psychological evidence. A person's capacity for self-control is a moral question and not one capable of being resolved by medical or psychological evidence.
12.38 Contrary arguments are as follows.(3) Acting under "extreme emotional disturbance" would reflect more accurately what the basis of the defence should be. The law should not favour those who suffer a sudden loss of temper over those victims of long term abuse who become progressively more stressed and whose emotional state becomes a compound of fear, anger and despair. Such a person may ultimately kill the abuser in a considered and controlled fashion, but nonetheless in a state of acute emotional stress.
(1) Theoretical objections to the concept of loss of self-control disappear if it is recognised that it means something less than complete loss of control amounting to automatism.
(2) The concept of loss of self-control is a familiar one.
(3) Acting under " extreme emotional disturbance" is a formulation which could be given a very wide interpretation. Many, if not most, people who kill are in a heightened emotional state about something.
12.39 Should the concept of "loss of self-control" be retained or should it be replaced by a test of acting "under extreme emotional disturbance" or some similar phrase?(4) The defence of provocation should not be available to people who carry out planned killings. Otherwise it would be potentially available, for example, to activists who kill over social issues such as abortion or animal rights, about which they may be passionate and obsessive.
Sudden and temporary
12.40 If the concept of loss of control is retained, there is the further question whether the loss of control should have to be sudden and temporary. Although this is a separate question, the arguments are similar to the arguments about whether the concept of loss of self-control should be retained.12.41 In particular, the argument for not requiring loss of self-control to be sudden is that such a requirement fails to make proper allowance for cases where a prolonged history of abuse produces in its victim the progressive development of feelings of despair rather than a sudden, explosive loss of temper.
12.42 The counter argument is that if there is no requirement that the loss of control should be sudden, there is no satisfactory way of differentiating between a "provoked killing" and a "revenge killing". The way would therefore be open for revenge attacks, for example in the context of criminal vendettas, to be accommodated within the defence.
12.43 If the concept of loss of self-control is retained, should there be a requirement that it should be "sudden and temporary"?
12.44 Some have argued that the defence of provocation should not be limited by any form of objective standard. The arguments in favour of this approach have been expressed most cogently in the minority judgment of Murphy J in the Australian case of Moffa[20]The reasonableness of the defendant's response
12.45 The test would result, if conscientiously applied, in a conviction of manslaughter in every case where there is a loss of self-control which has been caused by "provocation". The jury would have no normative role[22] and the verdict would in no way reflect the notion that the community, through the jury, is determining the degree of the defendant's culpability.The objective test is not suitable even for a superficially homogenous society, and the more heterogeneous our society becomes, the more inappropriate the test is. Behaviour is influenced by age, sex, ethnic origin, climatic and other living conditions, biorhythms, education, occupation and, above all, individual differences. It is impossible to construct a model of a reasonable or ordinary South Australian for the purpose of assessing emotional flash point, loss of self-control and capacity to kill under particular circumstances … . The same considerations apply to cultural sub-groups such as migrants. The objective test should not be modified by establishing different standards for different groups in society. This would result in unequal treatment. The objective test should be discarded. It has no place in a rational criminal jurisprudence.[21]
12.46 The result would be as expressed by Avory J in the course of argument in Lesbini:[23]
It would seem to follow from your proposition that a bad-tempered man would be entitled to a verdict of manslaughter where a good-tempered one would be liable to be convicted of murder.[24]
Every "road rage" killing would be manslaughter. We believe that this would involve an unjustified lowering of standards. It is noticeable that in those countries which have moved closest to a subjective test – Ireland and South Africa – the results have led to considerable disquiet amongst the judiciary.
12.47 We do not believe this approach to be a tenable option and we are therefore not posing any question for consultees about it. However, if any consultees hold a contrary opinion, we would not wish to discourage them from expressing it and setting out their reasons for it.12.48 Assuming that some form of objective standard would be required, we turn to the question what the test should be. We consider three possibilities based on:
(1) the approach of the majority in Smith (Morgan) (Option A);[25]
(2) the recommendations of the New South Wales Law Reform Commission (Option B);
(3) the approach of the minority in Smith (Morgan)(Option C).
The approach of the majority in Smith (Morgan) (Option A)
12.49 To give proper effect to the views of the majority in Smith (Morgan) the test should not be framed in terms of "the reasonable man". The question for the jury should be whether the circumstances were such as to make the defendant's loss of self-control sufficiently excusable to reduce murder to manslaughter. In deciding that question the jury should take into account all the circumstances, including any characteristics of the defendant (permanent or temporary) affecting the degree of control which society can reasonably have expected of him. However, the jury should not treat defects of the defendant's character as an excuse for failing to exercise the degree of self-control that society expects people to exercise over their emotions.
New South Wales Law Reform Commission[26] (Option B)
12.50 The test proposed by the New South Wales Law Reform Commission, insofar as it is relevant for our purposes, is whether,
12.51 This approach leaves it to the jury to form a value judgement whether the defendant deserves to be convicted of murder or manslaughter, taking into account all of their characteristics and all the circumstances. This approach is not far removed from that of the majority in Smith (Morgan). Indeed it may fairly be said that it represents a logical extrapolation of the approach of the majority (if they had not needed to contend with the terms of section 3 of the 1957 Act).taking into account all the characteristics and circumstances of the accused, he or she should be excused for having so far lost self-control as to have formed an intention to kill or inflict grievous bodily …….as to warrant the reduction of murder to manslaughter.[27]
The approach of the minority in Smith (Morgan) (Option C)
12.52 This approach maintains the test whether a person with ordinary powers of self-control might have acted as the defendant did. In assessing the gravity of the provocation, the jury is to take the defendant as he or she is. They must then consider whether that degree of provocation might have caused a person of the defendant's age and gender, and with the powers of self-control of an ordinary person, to have reacted as the defendant did.12.53 Arguments for the view of the majority in Smith (Morgan) are that:
(1) the principle of doing justice in the particular case is a more important principle than that of setting the same standard of self-control for everyone;
(2) it is only by enabling the jury to take into account all the characteristics of the defendant (though leaving out of the account his defects of character) that the principle of doing justice in the particular case can be achieved;
(3) in particular, the law should take account of those characteristics of the defendant, particularly if they are not attributable to his or her failings or shortcomings, which reduce the extent of his or her capacity for self-control;
(4) the minority approach requires a jury to conduct a task, both artificial and complicated, of dividing the defendant's personality for the purpose of, on the one hand, determining the gravity of the provocation and, on the other, of determining the standard of self-control;[28] and
12.54 Arguments in favour of the approach of the New South Wales Law Reform Commission are that:(5) it enables the jury to take into account characteristics of the defendant such as ethnicity and cultural background.
(1) it could be explained to a jury in simple and clear terms;
(2) it places with the jury, representing the community, the value judgement whether a particular defendant should be guilty of manslaughter or murder; and
12.55 Arguments in favour of the minority view in Smith (Morgan) follow.(3) it avoids the complexity of the "reasonable man" or "ordinary person" test.
(1) The "reasonable man" test serves an important function, namely to set, as a matter of policy, a uniform standard of self-control which has to be complied with if the defence is to be successfully pleaded. This is in accordance with the approach of the criminal law which is, with limited exceptions, concerned to set uniform standards of behaviour for public policy reasons.
(2) By introducing a variable standard of self-control the majority view subverts the moral basis of the defence.
(3) Because the standard advocated by the majority is variable, the jury is left to decide the issue without reference to any meaningful principles or guidance. The jury will decide what they think the standard ought to be and as a result a jury will be deciding what is a question of law.
(4) The variable standard which represents the majority view reflects a misunderstanding and distortion of both the purpose of the defence and the notion of capacity. Apart from cases of recognised mental abnormality, the fact that a person finds it more difficult because of his or her particular personality than another to comply with the requirements of the law is not a good or sufficient reason for lowering the requirements of the law or reducing his or her criminal liability (although it may, like other personal matters, be a relevant factor in sentencing).
(5) A person's capacity for self-control is not a medical or psychological issue but a moral one. In truth no doctor can answer the question whether a person can control himself, except in extreme circumstances (such as sleepwalking) which would be classified in law as cases of automatism.
(6) English law already provides a widely interpreted partial defence of diminished responsibility which is designed to cater for those whose mental responsibility, through no fault of their own, is substantially impaired.
(7) Inclusion of characteristics such as ethnicity and culture encourages stereotyping without being based on any firm evidence that members of a particular ethnic, racial or cultural group respond in a particular way.
(8) A variable standard which entitles a jury to take into account the defendant's personal characteristics may mean that the jury will take into account characteristics or circumstances which may have given rise to racism, homophobia and religious intolerance.
(9) There is no obvious mechanism for preventing a jury from taking into account those characteristics which are considered "undesirable" and to be discouraged. To say simply that they should be left out of the equation because they are "defects of character" is no answer, because it begs the question: what is a defect of character? The problems associated with a variable standard are compounded by the fact that the case law has in recent years diluted the requirement that there must have been "provocation" in the sense of conduct which is inherently provocative in character.[29]
(10) The version proposed by the New South Wales Law Reform Commission is undesirable for the reasons above. More particularly also:
(a) juries will still have to wrestle with the same underlying problems of balancing the demands of society against the frailties of an individual with unusual sensitivities, but without any guidance from the court (unless the courts develop guidelines in order to supplement the statutory test);
(b) it is an inherently vague test and is essentially circular because it makes the test of whether the defendant is in law guilty of murder depend on whether the jury decides that he ought to be convicted of murder; and
(c) juries would determine where the boundaries of murder and manslaughter lay on a case by case basis according to their own sympathies and prejudices.
(11) This view most closely reflects the provisions of A Draft Criminal Code for Scotland with Commentary[30] recently published under the auspices of the Scottish Law Commission.
12.56 All three options which we have considered present problems. They arise because the defence of provocation involves a clash between competing public interests. On the one hand there is the need to protect and respect human life – and therefore not to condone, even partially, the actions of those who kill through failure to control their emotions. On the other hand, people are sometimes provoked to kill in circumstances which call for a degree of compassion. Abolitionists consider that the difficult reconciliation is best achieved by abolishing the partial defence of provocation and replacing it with a sentencing discretion for murder.[31] In deciding whether it should be abolished or retained in a modified form, a critical consideration is whether a satisfactory solution other than abolition can be found.Conclusion
12.57 Do consultees consider any and, if so, which of the approaches of the majority in Smith (Morgan) (Option A), the New South Wales Law Reform Commission (Option B) and the minority in Smith (Morgan) (Option C) to be satisfactory, or do they have any alternative suggestion?
Other possible limits to a defence of provocation
12.58 Arguments for adopting this option are that:Abolition of the defence where death results from an intention to kill
(1) there is a big difference between angry retaliation falling short of an intention to kill and a deliberate killing; a civilised society should not accept as part of its legal standards that a person of ordinary self-control might deliberately kill another person because of anger;
(2) juries are less likely to acquit a defendant out of sympathy where they have concluded that he killed with an intention to kill; and
12.59 Arguments against adopting the option follow.(3) it would remove the anomaly that the defence is not available to a charge of attempted murder.
(1) It may accentuate the gender bias of the defence (because it is often easier to prove an intent to kill in the case of an abused woman who kills her partner than in the case of a woman who is killed by a possessive and jealous male in a sudden rage);
(2) The option wrongly assumes that there is inevitably a clear dividing line between the moral culpability of the defendant who kills with the intention to kill and the defendant who kills intending to cause grievous bodily harm;
12.60 If provocation is retained as a partial defence, would consultees favour excluding it in cases where the defendant kills the deceased with an intention to kill?(3) The option ignores the gravity of the provocation. The greater the severity of the provocation, the more likely it is that the response will consist of conduct accompanied by an intention to kill.
12.61 Self-induced provocation might be taken to refer to two different situations. In its narrower sense it would refer to a situation in which a defendant has formed a premeditated intent to kill or cause grievous bodily harm to the victim and incites provocation by the victim so as to provide an opportunity for attacking him or her. In that situation the "provocation" by the deceased will not in truth have been the cause of the fatal attack, which the defendant already intended. In a broader sense, self-induced provocation could also include a situation in which the defendant exposes himself or herself to the likelihood of provocation and then retaliates by killing the provoker. The conduct which exposes the defendant to the provocation might in itself be morally laudable (eg standing up for a victim of racism in a racially hostile environment), morally neutral or morally evil (eg blackmail).Self-induced provocation
12.62 We can see strong arguments for a rule of law precluding self-induced provocation in the narrower sense from affording a partial defence to murder, and we can see no good argument to the contrary.
12.63 To exclude from a defence of provocation all forms of conduct which might fall within the broader sense of self-induced provocation would in our view go too far. While there is much to be said, for example, in denying the defence to criminals whose unlawful activities expose them to the risk of provocation by others, we see considerable problems in trying to devise a rule of law which would differentiate satisfactorily between forms of self-induced provocation in the broader sense which should, and which should not, preclude a defence of provocation. The circumstances are too potentially variable for a clear and simple rule.
12.64 We are not putting any particular question to consultees on the topic of self-induced provocation, but we would be interested in any observations by consultees who disagree with our comments on this subject.
12.65 Where the defence of provocation arises as an issue, the burden is on the prosecution to disprove it. By contrast the defendant bears the burden of proof if seeking to rely on the defence of diminished responsibility. Yet both provocation and diminished responsibility are relevant only if the prosecution has proved the actus reus and the mens rea of murder. The reason for the distinction is historic. When the defence of provocation emerged a defendant charged with murder could not give evidence.Burden of proof
12.66 The distinction can produce odd results as illustrated by Smith (Morgan). In that case the deceased's denial that he had stolen the defendant's tools allegedly caused the defendant to react in an extreme fashion because of his mental state. The jury rejected the defence of diminished responsibility. Yet his conviction for murder was quashed because the prosecution might not have been able to disprove, on a proper direction, that anyone suffering from his mental condition might have behaved in the same way.
12.67 Under the present law where there is evidence on which the jury could conclude that the defendant killed the deceased as a result of loss of temper from things said or done (or a combination of things said and done) by another, the defence of provocation must be left to the jury. This is so even if the defence have not raised provocation and would prefer that it is not left to the jury, and even if no jury could sensibly conclude that a reasonable person would have acted as the defendant did.
12.68 If a defence of diminished responsibility is to succeed, medical evidence in support of it is a practical necessity. So in practical terms a defendant who wishes to rely on a defence of diminished responsibility would have in any event to bear an evidential burden of raising it. Two ways of harmonising the rules as to the burden of proof in relation to both defences would be to impose in both cases
(1) an evidential burden on the defendant but the legal burden on the prosecution; or
12.69 If the defence of provocation is to be retained, do consultees consider that:(2) a legal burden on the defendant.
(1) the prosecution should continue to bear the legal burden of disproving the defence if there is any evidence of loss of self-control by the defendant;
(2) the defendant should bear the legal burden of proof;
(3) the defendant should bear an evidential burden;
(4) the judge should be obliged to leave provocation to the jury even if the defendant does not wish it to be left to the jury?
12.70 Diminished responsibility has presented some problems, but not on the same scale as provocation. With the expansion of provocation, the overlap between the two defences has increased to the extent that some have advocated that they should be joined into a common defence. We consider that issue below. The most difficult aspect of diminished responsibility is in differentiating between what is medical and non-medical. This is particularly so in relation to the requirement that the defendant's abnormality of mind must have "substantially impaired his mental responsibility" for killing (or being a party to the killing of) the deceased.Diminished responsibility
12.71 The key questions in relation to diminished responsibility are:
(1) whether it should be abolished; and
(2) if it is retained, whether it should be modified.
We address separately the possibility of merging provocation and diminished responsibility into one defence.
12.72 Arguments for abolishing the partial defence are that:Abolition of the defence
(1) it is an anomaly because it does not operate as a defence, complete or partial, to any offence other than murder;
(2) it is an ill-defined compromise, made necessary by the combination of,
(a) the restrictions of the M'Naghten Rules; and
(b) the mandatory sentence;
(3) the variety of circumstances which may give rise to a defence of diminished responsibility should be taken into account as mitigating factors going to sentence and the mandatory sentence should be abolished;
(4) its existence as a partial defence is an encouragement to defendants who are legally insane to plead guilty to manslaughter when in truth they are not guilty of any offence (by reason of insanity); and
12.73 Arguments against abolition are these.(5) the partial defence is open to manipulation, as is demonstrated by the way it has been applied to enable people who commit "mercy killings" and who do not in truth suffer from any significant mental abnormality to be convicted of manslaughter instead of murder.
(1) If it were abolished, the only defence to murder based on mental disorder would be that of insanity, which by virtue of the M'Naghten Rules is limited in scope and, in particular, is confined to cognitive features of the defendant's mind;
(2) Mentally disordered defendants who, although not legally insane, are not fully responsible for their conduct should not be labelled "murderer" since their culpability is diminished. They are not "fully" responsible. It follows that abolition of the mandatory life sentence would not, therefore, detract from the need for this partial defence;
(3) If defendants are pleading guilty on grounds of diminished responsibility when they ought to be pleading the defence of insanity, this can be addressed by removing the mandatory disposal which follows from a finding of insanity in murder cases;
12.74 Do consultees favour:(4) The defence has been generally satisfactory in practice. The fact that it is sometimes used in a benign way, with the consent of the prosecution, the defence and the court, in order to accommodate cases which on a strict interpretation may not fall within the ambit of the defence, is not a good or sufficient reason for abolishing the defence.
(1) abolition of diminished responsibility, whether or not the mandatory sentence is abolished;
(2) abolition of diminished responsibility, conditional upon abolition of the mandatory sentence;
(3) retention of diminished responsibility, whether or not the mandatory sentence is abolished?
What are their principal reasons?
12.75 In Parts VII and XI we have referred to previous recommendations to re-word section 2 of the 1957 Act. We have also discussed a possible simplification of the last part of the definition in section 2 by introducing an explicitly causative test in place of the test whether it "substantially impaired his mental responsibility" for his conduct.Retention of the defence of diminished responsibility
12.76 If the defence of diminished responsibility is retained, do consultees favour:
(1) the present wording of section 2 of the 1957 Act;
(2) the alternative formula proposed in the Butler Report:[32]
"Where a person kills or is 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 1 of the Mental Health Act 1983, that is, "mental illness, arrested or incomplete development of mind, psychopathic disorder and any other disorder or disability of mind"] 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";[33]
(3) the version proposed by the Criminal Law Revision Committee:[34]
"Where a person kills or is 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 1 of the Mental Health Act 1983] and if, in the opinion of the jury,"[35] "the mental disorder was such as to be a substantial enough reason to reduce the offence to manslaughter"[36]
(4) the version proposed by the New South Wales Law Reform Commission:
"A person, who would otherwise be guilty of murder, is not guilty of murder if, at the time of the act or omission causing death, that person's capacity to:
(a) understand events; or
(b) judge whether that person's actions were right or wrong; or
(c) control himself or herself,
was so substantially impaired by an abnormality of mental functioning arising from an underlying condition as to warrant reducing murder to manslaughter.
"Underlying condition" in this subsection means a pre-existing mental or physiological condition other than of a transitory kind";[37]
(5) a version proposed by Professor Mackay:[38]
"A defendant who would otherwise be guilty of murder is not guilty of murder if, at the time of the commission of the alleged offence, his mental functioning was so aberrant and affected his criminal behaviour to such a substantial degree that the offence ought to be reduced to one of manslaughter;"[39]
(6) an amended version which would provide:
"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 an 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) and that abnormality of mind was a significant cause of his acts or omissions in doing or being a party to the killing";
(7) some other version?
12.77 We have already referred to the difference in the burden of proof between provocation and diminished responsibility. The Butler Report and the Criminal Law Revision Committee both recommended that the defendant should bear no more than an evidential burden. The Law Commission took the same view in its memorandum to the House of Lords Select Committee on Murder and Life Imprisonment.Burden of proof
12.78 Do consultees consider that the legal burden of proof in relation to diminished responsibility should remain on the defendant, or should the burden on the defendant be no more than one of adducing evidence to raise the issue?
12.79 We have not, at this stage, attempted to draft a possible form of hybrid defence, but the suggestion has been made that the law ought to move in that direction and we would like to know the views of consultees.Merger of provocation and diminished responsibility into a single partial defence
12.80 In a draft article to be published in the Criminal Law Review, Professors R Mackay and B Mitchell have advocated such a hybrid partial defence.[40] They have drawn on the American Law Institute Model Penal Code which provides:
[A] homicide which would otherwise be murder [is manslaughter when it] is committed under the influence of extreme mental or emotional disturbance for which there is reasonable explanation or excuse. The reasonableness of such explanation or excuse shall be determined from the viewpoint of a person in the actor's situation under the circumstances as he believes them to be.[41]
Professors Mackay and Mitchell suggest that, in the light of Smith (Morgan), it would be better formally to recognise that the distinction between provocation and diminished responsibility is no longer sustainable. They have remodelled the Model Penal Code provision as follows:
A defendant who would otherwise be guilty of murder is not guilty of murder if, the jury considers that at the time of the commission of the offence, he was:
(a) under the influence of extreme emotional disturbance and/or
(b) suffering from unsoundness of mind
12.81 These are arguments in favour of such an approach.either or both of which affected his criminal behaviour to such a material degree that the offence ought to be reduced to one of manslaughter.[42]
(1) As a result of the expansion of the defence of provocation, psychiatric evidence is now admitted in a way that makes it "virtually impossible to disentangle the issues of loss of self-control, abnormality of mind and substantial impairment of mental responsibility".[43]
(2) This practice has been given added impetus by the decision in Smith (Morgan) which permits mental abnormality to be taken into consideration when considering the standard of self-control to be expected of the defendant.
(3) The present state of the law of provocation and diminished responsibility is such that complex directions have to be given to a jury in cases where, as often happens, both defences are advanced. It would be much simpler if a composite direction could be given.
(4) Both defences are concerned with those who kill when in a disturbed state of mind by reason of external events, or internal abnormal mental processes, or a combination of the two.
12.82 Arguments against a single partial defence follow.(5) There is logic and justice in having a combined defence based on twin concepts of extreme emotional disturbance and abnormality of mind, with the jury being asked to decide whether either or both affected the behaviour of the defendant to such a degree that what would otherwise be murder ought to be reduced to manslaughter.
(1) Diminished responsibility and provocation are fundamentally different defences with different rationales and different essential elements.
(2) Combining the two partial defences into a single partial defence would not reflect the ethical difference between them. The ethical distinction is that provocation is a partial excuse for wrongdoing while diminished responsibility consists of a partial denial of responsibility.
(3) The fact that a defendant, as a matter of law, may be convicted of manslaughter on grounds both of diminished responsibility and of provocation, while demonstrating that they are not mutually exclusive, is not in itself a reason for combining them into a single partial defence. It merely demonstrates that "a person with diminished responsibility may be provoked to lose his self-control and react in the same way as any one else".[44]
(4) The view of the majority in Smith (Morgan) is flawed because it accords insufficient recognition to the differences, as identified above, between the two partial defences.
12.83 Do consultees favour the replacement of provocation and diminished responsibility by a single merged defence? If so do respondents prefer the Model Penal Code version, the Mackay and Mitchell reformulation, or some other formulation?(5) A single defence of the kind suggested would lack a clear boundary and be unacceptably wide.
12.84 There could be a broader and a narrower version of this potential defence and two variants of either of them. The broader would apply where the defendant faced a threat but not of sufficient immediacy to make it lawful to use force in self-defence. This would involve "pre-emptive (or anticipatory) self-defence" or "self-preservation". The narrower would apply where the defendant faced a threat of sufficient immediacy to justify the present use of some degree of force, but not the degree of force in fact used. The variants are that the defence might:A partial defence of use of execessive force in self-defence
(1) apply to force used in protection of the person or property or for the prevention of crime; or
12.85 The possible options are presented below together with their advantages and disadvantages. We start with the narrowest.(2) be limited to force used for the protection of the person.
12.86 The arguments in favour of treating a killing in such circumstances as manslaughter rather than murder are that:Excessive use of force in defence of oneself or another in circumstances where the use of some force would be lawful (Option A)
(1) a person who kills while acting in an honest belief that he or she is acting in self-defence or in defence of another is morally less culpable than a person who kills in other circumstances;
(2) the absence of such a partial defence may result not only in harsh convictions but in over-sympathetic acquittals, because the jury is placed in an "all-or-nothing" predicament; and
12.87 Arguments against the introduction of such a defence are as follows.(3) such a partial defence would remove the apparent anomaly that a person who uses excessive force in fear is guilty of murder, whereas a person who kills through loss of self-control in anger can put forward a defence of provocation.
(1) Partial defences which reduce murder to manslaughter are themselves anomalous and ought not to be extended.
(2) The introduction of such a partial defence would introduce unnecessary further complexity into the directions given to juries in murder trials.
(3) Its introduction is unnecessary because the Palmer[45] direction means that juries apply a (rightly) generous approach in considering whether the degree of force used by the defendant is reasonable. It is only in cases where the jury disbelieves the defendant's account or considers that the response was grossly disproportionate to the circumstances in which the defendant found him or herself that they will return a conviction of murder. In such circumstances it is appropriate that they do so.
(4) There is the danger that the existence of the partial defence might result in juries returning a verdict of manslaughter in cases where the defendant ought not to be convicted at all. In other words, juries might be tempted to opt for the middle ground, especially if their members were divided between convicting of murder and acquitting the defendant.
(5) If the mandatory sentence for murder is abolished, the judge would be able to take into account that the defendant used excessive force in self-defence when passing sentence (as in the case of non-fatal offences of violence).
12.88 The argument in favour of this extension is that burglary of a person's house is a violation of a person's personal rights which may be just as frightening and disturbing as an offence against the person.Extension of Option A to include use of excessive force in the protection of property or prevention of crime (Option B)
12.89 The contrary argument is that killing with intent to kill or to cause grievous bodily harm can never be justified merely for the protection of property, and therefore ought not to be a ground of defence whether total or partial.
12.90 The case for introducing such a partial defence can be put at its strongest in relation to abused women who kill. It may also be available in other contexts in which there is serious violence or tormenting behaviour used repeatedly against those who are perceived to be vulnerable – for example: in school, or against isolated members of a ethnic minority within a particular community. Taking the abused woman as an example, it is by no means abnormal for a woman in such a relationship to feel powerless to break away and she may fear – with good cause – that any attempt to do so will expose her to serious further violence. Her state of mind is one not only of fear but of powerlessness. This combination can breed despair of ever finding a way to avoid further violence. Sometimes a woman in such a situation eventually chooses a moment when her partner is unable to offer resistance (eg because he is asleep) to kill him.Pre-emptive use of force in self-defence (Option C)
12.91 Some have argued that a woman who kills in such circumstances should have a full defence of self-defence. The scope of the doctrine of self-defence is strictly outside our terms of reference. We have, however, been asked to have particular regard to the question of domestic violence. We have considered in Part X whether the pre-emptive use of force in self-defence should be capable of providing a complete defence to a killing with the mens rea for murder in circumstances where there is no imminent[46] threat of violence and where the circumstances do not fall within the description of duress of circumstances.[47] In our view it should not.
12.92 The basis of the argument that a person who kills in such circumstances should be treated as guilty of manslaughter, rather than murder, is that there is reduced culpability in the case of people who kill in the belief that it is their only way of escape from a cycle of serious violence. They should not therefore be labelled as a murderer nor punished as such.
12.93 The partial defence may be so drawn as to require, as a precondition, a history of serious abuse and a belief in the inevitability of a future attack and in the unavailability of any effective alternative means of protection. In this way the reach of the defence may be kept in check whilst making it generally available to all who are the subject of intolerable abusive treatment in whatever context.
12.94 The arguments to the contrary are that:
(1) the reduced culpability of a person who kills in such circumstances should be reflected in the sentence passed rather than by creating a special partial defence; and
(2) such a partial defence would either be dangerously wide (being available, for example, to members of rival criminal gangs or paramilitaries) or it would have to be narrowed in some way to classes of specially vulnerable people, which would involve definitional problems and complexities.
12.95 We are not aware of any argument in favour of a partial defence to murder which would extend that far, but we raise the matter in case there are those who think that it should.Extension of Option C to include use of anticipatory force for the protection of property or the prevention of crime (Option D)
12.96 Do consultees:
(1) favour the introduction of a partial defence of the use of excessive force in self-defence and/or a partial defence of pre-emptive use of force in self-defence;
(2) if so, do they favour option A, B, C or D;
(3) would their views be the same if:
(a) the mandatory sentence were abolished;
(b) the defence of provocation were abolished?
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Note 1 Part I, para 1.5. [Back] Note 2 Part I, paras 1.21 – 1.22. [Back] Note 3 [2001] 1 AC 146. [Back] Note 6 [2000] Crim LR 1004 at p 1009. [Back] Note 7 Royal Commission on Capital Punishment 1949 – 1953 Report (1953) Cmd 8932 at para 144. [Back] Note 8 See Part V, para 5.105. [Back] Note 9 See Part IV, paras 4.164 – 4.165. [Back] Note 10 On whether shortcomings of the defence are susceptible to reform see paras 12.27 – 12.67. [Back] Note 11 Professor A Ashworth, “Commentary on Weller” [2003] Crim LR 724 at p 726. [Back] Note 12 Given the stricter mens rea requirement of attempted murder, there is an argument that the stigma which attaches to a conviction for attempted murder is as great and that the defence also ought to apply to that offence. [Back] Note 13 There might be cases, however, where a jury would be sympathetic to the defendant even if satisfied that there was an intent to kill, for example, a woman who has suffered prolonged and severe physical and emotional abuse from her husband/partner. [Back] Note 15 Again, however, it is not inconceivable that a non-custodial sentence might be contemplated even where there was an intention to kill for example if the provocation endured by the defendant was considered to have been gross. [Back] Note 16 Of course, it might be retorted that this is the role the judge already plays in the sentencing process. [Back] Note 17 These facts are based loosely on a recent case under the German Criminal Code: Bundesgerichtshof (1 StR 403/02, 12 February 2003) [2003] NJW 1955; see account in [2003] Sept European Current Law, para 101. [Back] Note 18 In this Part referred to as “the 1957 Act”. [Back] Note 19 American Law Institute, Model Penal Code (1985) clause 210.3(1)(b). [Back] Note 20 (1977) 138 CLR 601. [Back] Note 21 Ibid, at pp 625–626. (emphasis added) [Back] Note 22 Apart from determining whether the triggering event is, in the circumstances, “provocation”. [Back] Note 23 [1914] 3 KB 1116. [Back] Note 24 Ibid, at p 1118. [Back] Note 25 [2001] 1 AC 146. [Back] Note 26 New South Wales Law Reform Commission, Partial Defences to Murder: Provocation and Infanticide: Report 83 (1997) at para 2.81. [Back] Note 27 Ibid, at para 2.82. [Back] Note 28 In his dissenting judgment in Rongonui [2000] NZLR 385 Thomas J referred (at p 446) to the “glazed look” in the jurors’ eyes when told that they must make the distinction; S Yeo, Unrestrained Killings and the Law (1998) pp 60–61 argues that the distinction is inconsistent with the opinion of behavioural scientists who maintain that the accused’s personality cannot be dissected in the way envisaged by the distinction. [Back] Note 29 Doughty (1986) 83 Cr App R 319; Dryden [1995] 4 All ER 987. If a baby’s crying is capable of constituting “provocation” there would seem to be no human behaviour which is incapable of constituting “provocation”, including conduct as diverse as homosexual advances and the audible and visual suffering and/or nagging of a person afflicted by a painful and terminal illness. Compare this, however, with Cocker [1989] Crim LR 740. [Back] Note 30 (2003) clause 38(3) & (4); pp 89 – 91. [Back] Note 31 This is the conclusion of the New Zealand Law Commission in Some Criminal Defences with Particular Reference to Battered Defendants: Report 73 (2001) at paras 118 & 120. [Back] Note 32 Report of the Committee on Mentally Abnormal Offenders (1975) Cmnd 6244; in this Part referred to as “the Butler Report”. [Back] Note 33 Ibid, at para 19.17. [Back] Note 34 Criminal Law Revision Committee, Fourteenth Report, Offences Against the Person (1980) Cmnd 7844. [Back] Note 35 Replicating the beginning of recommendation of the Butler Report. [Back] Note 36 Criminal Law Revision Committee, Fourteenth Report, Offences Against the Person (1980) Cmnd 7844, para 93. In Criminal Law: A Criminal Code for England and Wales (1989) Law Com No 177, the Law Commission (clause 56) adopted the Criminal Law Revision Committee’s definition of diminished responsibility with the substitution of “mental abnormality” for “mental disorder”, but the definition of those terms remained identical. [Back] Note 37 New South Wales Law Reform Commission, Partial Defences to Murder: Diminished Responsibility: Report 82 (1997) para 3.43. [Back] Note 38 R D Mackay, “Diminished Responsibility and Mentally Disordered Killers” in Professors A Ashworth and B Mitchell (eds), Rethinking English Homicide Law (2000) 55. [Back] Note 40 R D Mackay and B J Mitchell, “Provoking Diminished Responsibility: Two Pleas Merging into One?” Crim LR (forthcoming in the November 2003 edition). [Back] Note 41 American Law Institute, Model Penal Code (1985) clause 210.3(1)(b). [Back] Note 42 R D Mackay and B J Mitchell, “Provoking Diminished Responsibility: Two Pleas Merging into One?” Crim LR (forthcoming in the November 2003 edition). [Back] Note 43 R D Mackay, “Pleading Provocation and Diminished Responsibility Together” [1988] Crim LR 411, 421. [Back] Note 44 Smith (Morgan) [2001] 1 AC 146, 206, per Lord Millett. [Back] Note 46 It is not necessary for us to discuss further in this context the meaning of “imminent”. [Back] Note 47 There is a separate issue whether the defence of duress should apply to murder. The Law Commission view that it should be has been expressed repeatedly. See eg Criminal Law Report on Defences of General Application (1977) Law Com No 83 at para 2.44; A Criminal Code for England and Wales (1989) Law Com No 177, vol 2, pp 229 – 231; Legislating the Criminal Code: Offences against the Person and General Principles (1993) Law Com No 218 at paras 31.8 and 35.10. [Back]
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