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Cite as: [2003] EWLC 173(13)

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PART XIII

CONSULTATION QUESTIONS

We repeat below the questions which we have posed. It would be very helpful to us if consultees answered as many questions as possible. However, we would not want the length of the list to deter consultees from answering those questions which they consider to be the most crucial.

Provocation

Do consultees agree:

(1) that the law of provocation is unsatisfactory; and

(2) that its defects are beyond cure by judicial development of the law? (paragraph 12.5)

The moral viewpoint

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

(b) on the broader (excusatory) ground? (paragraph 12.19)

Abolition of the defence

Do consultees favour:

(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? (paragraph 12.26)

Retention of the defence of provocation in a modified form

If provocation is to be retained in a modified form,

(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? (paragraph 12.32)

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? (paragraph 12.37)

If the concept of loss of self-control is retained, should there be a requirement that it should be "sudden and temporary"? (paragraph 12.41)

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 suggestions? (paragraph 12.55)

Other possible limits to a defence of provocation

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? (paragraph 12.58)

If the defence of provocation is to be retained, do consultees consider that:

(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? (paragraph 12.67)

Diminished responsibility

Abolition of the defence

10.

Do consultees favour:

(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? (paragraph 12.72)

Retention of the defence of diminished responsibility

11.

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:

"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";

(3) the version proposed by the Criminal Law Revision Committee:

"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,"^[1] "the mental disorder was such as to be a substantial enough reason to reduce the offence to manslaughter"

(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";

(5) a version proposed by Professor Mackay:

"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;"

(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? (paragraph 12.74)

Burden of proof

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? (paragraph 12.76)

Merger of provocation and diminished responsibility into a single partial defence

13.

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? (paragraph 12.81)

A partial defence of use of execessive force in self-defence

14.

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? (paragraph 12.94)

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Note 1 Replicating the beginning of recommendation of the Butler Report. [Back]