The first comprehensive review of the law on murder in more than fifty years has taken shape in the form of the Law's Commission recent Report on Partial Defences to Murder, published on the 6th of August 2004. The last time such an extensive re-examination of the subject was conducted was back in 1949-1953, by the Royal Commission on Capital Punishment, which later led to the enactment of the Homicide Act in 1957.
The Government's law reform advisers, urge through this document, for a comprehensive review and major overhaul of the law on murder, and that given the inconsistencies and the current breath and depth of dissatisfaction that plague and undermine the current law, a serious rethink should be undertaken in relation to the contentious issue of whether or not a murder conviction should always carry with it a permanent life sentence, and more importantly, the formulation of the provocation of defence and its relation to its diminished responsibility counterpart.
In this essay, an attempt will be made to concisely summarise the Report by focusing on the critical issues and evaluate them accordingly. It will be argued that though the Commission has tried to clarify the law in this area, but because it has failed to address the pertinent issues at hand, the adoption of its proposals would not resolve the problems that are central to many of the difficulties that the courts today face on this subject.
But before we move on to discuss the substantive issues, it is important to note that the Law Commission's report had been embarked on, largely as a counter to the controversial decision in the case of R v. Smith (Morgan) 2001. This case clearly established that in relation to the provocation defence, provided for by s. 3 of the Homicide Act 1957, a defendant's personal characteristics may be taken into account in determining the standard of control that ought reasonably to be expected of the defendant.
This stands in stark contrast and seeming confliction with previous case law, which has determined that the personal characteristics of the defendant could only be attributed to the reasonable person where the provocation related to the particular characteristic, or where it was relevant to the gravity of the provocation in some other way, as seen in cases such as R v. Morhall (1996).
The importance of decision in R v.Smith (Morgan) is that it establishes the fact that personal characteristics, such as mental abnormalities and impairments that do in fact affect the defendant's capacity to exercise self-control may be taken into account, even in instances where they are not at all relevant to the gravity of the provocation, a decision that not only disturbs the traditional notion of the defence of provocation but also blurs the line between such a defence and that of diminished responsibility.
In R v.Smith (Morgan), the defendant suffered from severe depression, and this unfortunate condition severely affected his ability to control his actions. He stabbed and killed a friend one night after an argument, during a night of drinking. The defendant tried to rely on the provocation defence, and appealed against a direction by the trial judge to the jury that his depressive illness could only be taken into account when considering the gravity of the provocation, but not in deciding whether the reasonable person would have lost his self-control under similar circumstances.
The House of Lords held, affirming the decision by the Court of Appeal to dismiss the Crown's appeal, that the jury was fully entitled to take into consideration any particular personal characteristic(s) of the defendant in deciding on the gravity of the provocation, as well as in evaluating the relevant standard of self-control that could be reasonably expected of the defendant. Given the controversy surrounding this decision, it is no wonder why the subject of the defence of provocation has taken centre stage in the Law Commission Report.
The Law Commission Report is split up into five main parts. Part 1 sets out the introduction and the summary, Part 2 sets the current terms of reference and possible future work, Part 3 looks at the Provocation defence, Part 4 looks at excessive force in self-defence and finally, part 5 deals with the plea of diminished responsibility. Undoubtedly, it is the Provocation defence that the Report is centred around, and it is on this part that this essay will focus on, given the limited scope available in this exercise. Part 3 of the Report is dedicated to the defence of Provocation.
It sets out early on, the current unsatisfactory state of the law, and also goes about setting out particular issues that are particularly troubling. It then proceeds to address whether or not it should be abolished, or retained in some modified form and then finally, it moves on to discuss their proposals with regards to the reform of the defence, starting at paras 3. 60, and it is this part that we are most interested in. The Commission, as seen in para 3. 65, feels that as it is, the defence is defective in the sense that it is in some respects too broad and in others, too narrow.
"It is too narrow in that it provides no defence to a person who is subjected to serious actual or threatened violence, who acts in genuine fear for his or her safety (but not under sudden and immediate loss of self-control) and who is not entitled to the full defence of self-defence (either because the danger is insufficiently imminent or their response is judged to have been excessive).
" In order to correct this fault, the Commission then proceeds in para 3. 66 and 3. 67 to outline how they think the requirements that the defence of provocation needs to adhere to, "3.66 In principle, we consider that the first pre-requisite of a defence of provocation should be that the defendant acted in response to (1) gross provocation or (2) fear of serious violence towards himself or herself or another, or (3) a combination of (1) and (2) (the trigger). 3. 67 The second should be that a person 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 (the objective test). " This redefinition is problematic of several fronts.