Criminal Law Legislation Update
| Date | 01 February 2011 |
| Published date | 01 February 2011 |
| Author | Laura McGowan |
| DOI | 10.1350/jcla.2011.75.1.675 |
| Subject Matter | Opinion |
Criminal Law
Legislation Update*
Laura McGowan†
Statutory instruments
The Violent Crime Reduction Act 2006 (Commencement No. 9) Order
2010 (SI 2010 No. 2541) was made on 18 October 2010 and came into
force on 1 November 2010. It extends the power of the magistrates’
courts to make drinking banning orders on conviction.
The Coroners and Justice Act 2009 (Commencement No. 4 Transi-
tional and Saving Provisions) Order 2010 (SI 2010 No. 816) brings into
force provisions of the Coroners and Justice Act 2009 for England and
Wales on 4 October 2010.
Sections 52 and 54–57 of the Coroners and Justice Act 2009 Act make
changes to the law of homicide. Section 52 changes the definition of the
partial defence to murder of diminished responsibility. Sections 54 and
55 introduce a new partial defence to murder of loss of control, to
replace the existing partial defence of provocation, which is repealed by
s. 56. Section 57 makes small changes to the law relating to the offence/
defence of infanticide.
Section 52 of the 2009 Act deals with the partial defence to murder of
diminished responsibility as it applies in England and Wales. It replaces
the existing definition of the partial defence. It does so by subsituting s.
2(1) of the Homicide Act 1957 with new subss (1)–(1B). There is no
change to the effect of successfully pleading the partial defence; it will
continue to result in a verdict of manslaughter rather than murder
(Homicide Act 1957, s. 2(3)). Similarly, there is no change to the
requirement in s. 2(2) of the Homicide Act 1957 for the defence to prove
that the partial defence applies (on the balance of probabilities).
Section 2(1), as amended, provides that a person who kills or is a
party to the killing of another is not to be convicted of murder if the
defendant was suffering from ‘an abnormality of mental functioning’.
This should arise from a ‘recognised medical condition’, which requires
that the abnormality of mental functioning substantially impaired the
defendant’s ability to do one or more of three things set out in s. 2(1A).
The first of these is the ability to understand the nature of his or her
conduct. The second is the ability to form a rational judgment. The third
is the ability to exercise self-control. For the purposes of s. 2(1)(c), an
abnormality of mental functioning provides an explanation for the
* As at 11 November 2010.
† Barrister, Carmelite Chambers; e-mail: laurajmcgowan@gmail.com.
4The Journal of Criminal Law (2011) 75 JCL 4–7
doi:10.1350/jcla.2011.75.1.675
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