Law Weblog

Changes to defences to murder – provocation and diminished responsibility

Monday 4 October 2010 at 9:50 pm | In News | Post Comment

Defences to the law of murder were changed today, 53 years after the last change by amendments to the Coroners and Justice Act 2009.

Provocation has been replaced by a new defence of “loss of control” caused by “a fear of serious violence”. This may be a response to “words or conduct which caused the defendant to have a justifiable sense of being seriously wronged”.
In practice it would mean that a man who kills his wife after discovering her infidelity will now not be able to succeed with the defence of provocation.
But it would be available for parents who catch a paedophile molesting their child or a rape victim taunted by her attacker because they would be “seriously wronged”.
A mother who kills a man trying to rape her child would be in “fear of serious violence” and might be able to use the defence.

Diminished responsibility has been replaced by a new defence based on “recognised medical conditions”.

The act clarifies the Infanticide Act 1938, now the offence and defence of infanticide only applies to women and then if she would otherwise be found guilty of murder or manslaughter.

There has been no circular by the Home Office with the commencement of the act and it will be a little while before it is clear how the changes will apply in practice.

It is thought that the existing case law on provocation will be of less significance, but can still be used.
It is generally accepted that existing diminished responsibility cases may continue to be prayed-in-aid.

Both defences continue to be specific and partial.