Partial Defences to Murder Under Review
| Pages | 4-6 |
| Published date | 01 October 2007 |
| Date | 01 October 2007 |
| DOI | https://doi.org/10.1108/13619322200700023 |
| Author | Andy Bickle |
| Subject Matter | Health & social care |
Andy Bickle
Specialist Registrar in Forensic Psychiatry, Francis Willis Unit, Lincoln
Partial Defences to Murder
Under Review
’reasonable man’ of the same age and sex as
the defendant, but invested of none of his other
characteristics. Provocation has also been criticised
as being less available to women who, it is argued,
are less likely to engage in the sort of sudden violent
altercation with physically stronger men that is likely
to satisfy this defence (Horder, 2005).
The law surrounding diminished responsibility has
been less controversial, but the divergence between
the legal language of the statute and modern medical
thinking creates the possibility of the defence being
applied inconsistently to mentally disordered
defendants at the very least.
Calls for reform
The UK government asked the independent Law
Commission to review partial defences in the
aftermath of Morgan (Smith).The Commission’s
report, Partial Defences to Murder (2004),proposed
new definitions for the defences, but concluded that
a review of homicide law as a whole was really
needed. The Commission was asked by the
government to proceed with such a review but with
restrictions to its terms of reference, most importantly
disallowing it from considering the mandatory
sentence, which presumably is politically too sensitive
even to be under discussion. One suspects that the
Law Commission would have preferred this licence
and certainly it was the view of the Royal College of
Psychiatrists that the retention of the mandatory
sentence greatly enhanced the difficulty in usage of
expert evidence in homicide trials as it kept mental
condition constructs within the adversarial process
of arriving at a verdict and not, as it would prefer,
allowing for a graded approach to justice within
sentencing (Law Commission, 2006).
Proposals
The Law Commission published its second review,
Murder, Manslaughter and Infanticide,in November
2006. It proposed new definitions for provocation and
diminished responsibility within a comprehensively
restructured homicide law having, for the first time in
It is now nearly two years since the Law Commission
described current homicide laws as ’a mess’ (Law
Commmission, 2005).Provocation and diminished
responsibility are partial defences to murder (and only
murder), which under current law reduce the offence
to one of manslaughter.There are mental state factors
to be satisfied for each defence and in the case of
diminished responsibility there is a basic requirement
for a mental disorder or, putting it in the somewhat
quaint language of the Homicide Act 1957, ’an
abnormality of mind … arising from a condition of
arrested or retarded development of mind or any
inherent causes or induced by disease or injury’.
To a large degree,the partial defences owe their
existence to a collective will to see those deemed
less culpable for a homicide avoid the mandatory
sentence for murder, currently life imprisonment
but formerly capital punishment (Law Commission,
2004). The defences in their current form are set out
in the Homicide Act 1957. Since the act came into
force a considerable weight of case law has refined
and modified the applicability of the defences.
A problematic evolution
The availability of a provocation defence, in
particular, to a mentally disordered defendant has
fluctuated quite markedly over the last decade. In
recent times, the presence of mental disorder moved
between being relevant only to the ’gravity’ of the
provocation (ie whether the alleged provocation was
indeed sufficiently provocative) and being a factor
which could be considered when deciding what
degree of self-control the defendant should have
exercised. In R v Smith (Morgan), the House of Lords
ruled the defendant’s chronic alcoholism should have
been allowed in deciding the self-control reasonably
expected of him. More recently in R v Holley,the
Privy Council expressly contradicted this judgement
despite not strictly having authority to criticise the
House of Lords. They insisted the presence of
alcoholism and indeed any other mental disorder
was irrelevant to the degree of self-control expected
of the defendant who must meet the standard of a
Mental Health Review Journal Volume 12 Issue 3 October 2007 © Pavilion Journals (Brighton) Ltd
4
FOCUS ON
To continue reading
Request your trial