Consultation 18.08

18.08 Murder, Manslaughter and Infanticide

The above paper sets out for consultation how the Government proposes to take forward the Law Commission’s recommendation, set out in its 2006 report ” Murder, Manslaughter and infanticide” in relation to:

The partial defences to murder, namely; provocation and diminished responsibility; The law on complicity in respect of homicide; and Infanticide.

The Government proposals require legislative change and as such, the paper includes draft clauses showing how it intends to give effect to the changes in this area of law. Subject to the consultation responses, it is the government’s intention to include the clauses in the Law Reform and Witness Bill in the next Parliamentary session.

In summary, the proposals in respect of the partial defences are as follows:

To abolish the existing partial defence of provocation and replace it with new partial defences of:

  • Killing in response to a fear of serious violence; and ( to apply only in exceptional circumstances) killing in response to words and conduct which caused the defendant to have a justifiable sense of being seriously wronged.

To make clear that sexual infidelity on the part of the victim does not constitute grounds for reducing murder to manslaughter.

To remove the existing common law requirement for loss of self-control in these circumstances to be “sudden”.

To provide that the “words and conduct” partial defence should not apply where the words and conduct were incited by the defendant for the purpose of providing an excuse to use violence.

To provide that the “fear of serious violence” partial defence should succeed only where the victim is the source of the violence feared by the defendant and the threat is targeted at the defendant or specified others.

To provide that neither partial defence should apply where criminal conduct on the part of the defendant is largely responsible for the situation in which he or she finds him or herself.

To provide that these partial defences should apply only if a person of the defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way.

To ensure that the judge should not be required to leave either of these defences to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that they might apply.

To introduce a new partial defence of diminished responsibility based on the concept of a “recognised medical condition”, spelling out more clearly what aspects of a defendant’s functioning must be affected in order for the partial defence to succeed, and making clear that the abnormality should cause, or be a significant contributory factor in causing the defendant to kill.

The consultation deadline is 20th October 2008. The consultation can be accessed from the following Ministry of Justice web link:

View the ILEX response.