The Law Commission

PART 1

INTRODUCTION AND SUMMARY

Terms of reference and the consultation process

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

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

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

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

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

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

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

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

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

1.3     We have not been requested to consider and report on section 4 of the 1957 Act (killing by survivor of a suicide pact), section 1 of the Infanticide Act 1938 or assisted suicide save as to the extent necessary to consider the law and practice of the defence of diminished responsibility. Such cases are rarely encountered.
1.4     Although this project is considerably narrower than a review of the whole law of murder, which logically would begin with consideration of the elements of murder before considering defences to murder, it is nevertheless important. It raises issues which have proved to be of great difficulty not only in this country but also in many others with similar legal systems.
1.5     We published Consultation Paper No 173 on 31 October 2003.^[2] As part of our review of the law we commissioned studies of the law and law reform proposals in a number of common law jurisdictions.^[3] Our Consultation Paper gave rise to 146 written responses from a wide range of consultees comprising lay persons, non-governmental organisations (NGOs), professional bodies, academics, members of the legal profession and members of the judiciary.^[4] In addition, members of the criminal law team attended meetings with or arranged by: Rights of Women, Justice for Women, JUSTICE, Victim Support, Support after Murder and Manslaughter (SAMM), the Judicial Studies Board, the Judges at the Central Criminal Court, the Rose Committee, the Wales and Chester Circuit, the Western Circuit, the North Eastern Circuit, the Midland Circuit, the Society of Legal Scholars, the Institute of Advanced Legal Studies and a number of forensic psychiatrists. We are grateful to each of these individual consultees and to each of these bodies for taking the time and trouble to contribute to the consultation. In formulating the recommendations which are contained in this report we have considered all of their responses, as well as the views expressed at meetings. In addition, as part of our consultation process we obtained accounts of the relevant law of the United States of America, France and Germany. We are most grateful to Professor Sanford Kadish,^[5] Professor John Spencer QC and Antje Pedain^[6] respectively, for helping us in this respect.
1.6     Provocation has always been at the heart of this project. For a long time, both during the writing of Consultation Paper No 173 and thereafter, we were pessimistic about the possibility of devising a formulation for the reform of provocation, which would significantly improve the law. In addition, we were unconvinced that there was any need for such a partial defence other than as a buffer against the harsh effect of the mandatory life sentence for all cases of murder. Indeed our pessimism on this issue was one of the influences which implicitly informed our approach in that document. As we explained, Law Commission consultation papers usually contain provisional proposals and invite comments on them. Consultation Paper No 173 did not. The Government had made known its intention to introduce legislation to address the issue of domestic violence possibly as early as Parliamentary session 2003-4. The purpose of the project was both to assist the Government in considering its proposals and to inform public debate. In those circumstances, we were keen to begin our public consultation process as soon as we could. Accordingly, we did not present any provisional proposals in Consultation Paper No 173. Instead, we set out a series of options for consideration and comment and posed a series of questions intended to enable consultees to provide us with a structured response, the better to inform our consideration of this seemingly intractable issue.
1.7     In Consultation Paper No 173 we asked whether consultees favoured: (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.^[7]
1.8     The response to the second and third of these questions took us somewhat by surprise. We were impressed both by the number of those who expressed the view that there should continue to be such a partial defence, even in the event of the abolition of the mandatory sentence, and by the arguments which they deployed. Ultimately we have concluded that the law of provocation is capable of reform in ways which would significantly improve it. As a result, reform rather than abolition is our recommendation.
1.9     A number of consultees expressed concern about the limited scope of our terms of reference. In Part 2 of this report we consider in some detail the comments, which we received in this regard.^[8]
1.10     In the course of late January and February 2004 our criminal law team produced a series of draft formulations. These were designed to encapsulate, in short form, a series of principles. The formulae sought to differentiate between the cases in which the culpability of the killer was sufficiently reduced so as not to merit the description of murder and those cases where there was no such reduced culpability. Those formulations were the subject of an intensive round of discussions with a range of academics and members of the judiciary who were most generous with their time and whose views were influential in assisting us to develop and to finalise our recommendations. We are particularly grateful to Professor David Ormerod of Leeds University, our academic consultant on this project, and to Professor John Spencer and other members of the Law Faculty of the University of Cambridge, Professor Andrew Ashworth, Dr Jeremy Horder and other members of the Law Faculty of the University of Oxford, Lord Justice Buxton, HHJ Jeremy Roberts QC, the members of the Rose Committee,
Mr Justice Baragwanath^[9] and Professor Marcia Neave^[10] for their assistance in connection with this part of the exercise.
1.11     Commissioners provisionally agreed their policy and on 30^th April 2004 we circulated, and placed on our website, a short statement setting it out together with our supporting reasoning.^[11] That document focussed on the principles which a reformed law of provocation would reflect. We invited any further comment which consultees and other interested parties might wish to make. We received 30 responses and have taken these further comments into account in finalising our recommendations.

A Summary of Our Recommendations

Recommendation for further work by the Law Commission

1.12     For the reasons which we set out in Part 2, our first recommendation is that the Law Commission be asked to conduct a review of the law of murder with a view to:

(1) considering the definition of the offence, together with any specific complete or partial defences which may seem appropriate;

(2) considering whether the offence of murder should be further categorised on grounds of aggravation and/or mitigation and if so what those categories should comprise;

(3) in the light of (1) and (2), considering the application of a mandatory life sentence to the offence of murder or to any specific categories of murder;

(4) examining how each of (1), (2) and (3) may differently be addressed where the offender is a child.

In order to ensure coherence, this detailed scrutiny of murder would involve a limited review of the law of involuntary manslaughter.

Provocation

1.13     For the reasons which we set out in Part 3 our recommendation on Provocation is: that the principles which should govern a reformed partial defence of provocation are:

1) unlawful homicide that would otherwise be murder should instead be manslaughter if:

(a) the defendant acted in response to

i. gross provocation (meaning words or conduct or a combination of words and conduct which caused the defendant to have a justifiable sense of being seriously wronged); or

ii. fear of serious violence towards the defendant or another; or

iii. a combination of (a) and (b); and

(b) a person of the defendant's age and of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way.

2) In deciding whether a person of ordinary temperament in the circumstances of the defendant might have acted in the same or a similar way, the court should take into account the defendant's age and all the circumstances of the defendant other than matters whose only relevance to the defendant's conduct is that they bear simply on his or her general capacity for self-control.

3) The partial defence should not apply where

(a) the provocation was incited by the defendant for the purpose of providing an excuse to use violence, or

(b) the defendant acted in considered desire for revenge.

4) A person should not be treated as having acted in considered desire for revenge if he or she acted in fear of serious violence merely because he or she was also angry towards the deceased for the conduct which engendered that fear.

5) The partial defence should not apply to a defendant who kills or takes part in the killing of another person under duress of threats by a third person.^[12]

6) A judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply.

1.14     We stress that our recommendation is not put forward as a statutory formula. We have sought to identify the principles which we consider should govern any legislative reform. If this approach were accepted, the drafting of legislation would be a matter for Parliamentary Counsel.

Excessive use of force in self-defence

1.15     Our recommendation for the reform of the law of provocation is that it should be recast in a way that would include those cases which involve excessive use of force in self-defence where culpability is sufficiently reduced to warrant a partial defence. Accordingly, for the reasons that we elaborate in Part 4 of this report, we do not recommend a specific separate partial defence to murder based on the excessive use of force in self-defence.

Diminished responsibility

1.16     For the reasons which we set out in Part 5 of this report, we recommend that for as long as the law of murder remains as it is, and conviction carries a mandatory sentence of life imprisonment;

(1) there should be a partial defence of diminished responsibility which would reduce what would otherwise be a conviction of murder to one of manslaughter;

(2) there be no change to section 2 of the 1957 Act.^[13]

1.17     One of the matters which would be considered were there to be a full review of murder is whether there should continue to be a partial defence of diminished responsibility and if so, how it might be formulated. As we explain in Part 5 we are not persuaded that the acknowledged infelicities of the current formulation presently cause injustice in practice. We are not persuaded that implementing any of the alternative formulations we have considered would sufficiently improve the law to make it worth interfering with the present infelicitous, but workable, formulation. Indeed, merely because they would be novel, implementation might give rise to unhelpful uncertainty. A full review of the whole law of murder would provide the opportunity to consider such matters from scratch. In order to "kick start" such a process were it to come about, we put forward for consideration in the course of such a full review of murder a formulation of diminished responsibility which seems to us to have emerged from the consultation process as a possible option:

A person, who would otherwise be guilty of murder, is not guilty of murder but of manslaughter if, at the time of the act or omission causing death,

(1) that person's capacity to:

(a) understand events; or

(b) judge whether his actions were right or wrong; or

(c) control himself,

was substantially impaired by an abnormality of mental functioning arising from an underlying condition and

(2) the abnormality was a significant cause of the defendant's conduct in carrying out or taking part in the killing.

(3) "Underlying condition" means a pre-existing mental or physiological condition other than of a transitory kind.

1.18     For the reasons we set out in Part 3 of this report,^[14] we do not recommend a single partial defence merging the partial defences of provocation and diminished responsibility.

The other elements to this report

Empirical research and background material

1.19     We have, throughout this project, recognised that it would be inadequate for us to adopt an approach which was overly technical or legally purist. The law of murder and the circumstances in which the partial defences of provocation and diminished responsibility may arise are not only difficult conceptually but are hugely important and of great public interest. We therefore determined that we would seek to inform ourselves of the way in which the law has developed historically, the way it is being applied in practice and the way in which the public, if given the opportunity to consider the issues, might perceive the various circumstances in connection with which the boundaries between murder and manslaughter might be drawn.
1.20     In conducting this exercise we are greatly indebted to Professors Ronnie Mackay and Barry Mitchell and to the Nuffield Foundation. Professor Mackay and the Foundation have generously made available to us the fruits of his current research into the ways in which the law of provocation and diminished responsibility are working. We publish his two papers on these two topics as Appendices A and B to this report and his work has been invaluable. Professor Mitchell has undertaken a qualitative public attitude survey based on responses to a series of constructed cases which we are publishing as Appendix C. This too has been illuminating and has influenced our work.
1.21     We considered it necessary in order to undertake this project properly that we have the best information possible of how the law operates in practice. To this end we thought it important to request access to files of those who have been convicted of murder and are serving a life sentence or are released on licence. The Lifer Review and Recall Section at the Home Office has given us generous access to those files. This has been particularly helpful in that, from the Judge's Report in each case, we have been able to identify the essential features of these cases. The files to which we have had access comprise a substantial proportion of all those convicted of murder during a three year period as well as access to the files of most women who are currently serving a life sentence for murder or have been released on licence. We are indebted to Dr Tamsin Stubbing who has collated and analysed the information culled from these sources and we present that information in Appendix D to the report. In addition, in order to ground that analysis we publish as Appendix E to this report a brief, anonymous account of each of the cases of women sentenced to life imprisonment for murder whose Lifer Review and Recall Section files we have seen. For the same purpose we also publish the anonymous case summaries which Professor Mackay has annexed to his reports in Appendices A and B. We endeavour to draw out certain conclusions from this material. We wish to put on record our grateful thanks to Baroness Scotland of Asthal QC, Minister of State at the Home Office, who agreed that we should have this generous access and to the officials in the Home Office and at the Lifer Review and Recall Section who were so helpful to us in accessing this material. We are also grateful to the staff at the Crown Prosecution Service who gave us assistance in connection with this aspect of the work. Professor Sanford Kadish, of the University of California, Berkeley, wrote a paper for us elucidating the operation of U.S.A. Model Penal Code provision on extreme mental or emotional disturbance. His clear exposition of a very complex area of law in multiple jurisdictions was invaluable to our deliberations and we are indebted to him for his help in such a limited time frame. His paper is contained in appendix F to this report.

History of provocation and diminished responsibility

1.22     One of our consultees suggested that it would be helpful if our report contained a sociological history of provocation and diminished responsibility. Accordingly, and in order to assist the reader to place the report in context, we have done so. It is contained in Appendix G to this report.
Ý
Ü   Þ

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

Note 2    Partial Defences to Murder (in this Part referred to as Consultation Paper No 173).    [Back]

Note 3    These studies formed Appendices A to F to Consultation Paper No 173.    [Back]

Note 4    See Annexe H for the full list.    [Back]

Note 5    School of Law, University of California, Berkeley.    [Back]

Note 6    Members of the Faculty of Law, University of Cambridge.    [Back]

Note 7    Consultation Paper No 173, Part XIII question 3.    [Back]

Note 8    See paras 2.12 – 2.16.    [Back]

Note 9    Judge of the High Court of New Zealand and Formerly Chair of the New Zealand Law Commission.    [Back]

Note 10    Chair of the Victoria Law Reform Commission.    [Back]

Note 11    Partial Defences to Murder, Provisional Conclusions on Consultation Paper No 173.    [Back]

Note 12    Pending a wider review of the law of murder - see Part 3 paras 3.161- 3.162.    [Back]

Note 13    Section 2 of the Homicide Act 1957 states: “(1) Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. …”    [Back]

Note 14    Paras 3.164 – 3.166.    [Back]