The British way

Murder will out '“ and reforms will be made. Changes to murder defences came into force on the 4 October, under section 52-61 of the Coroners and Justice Act 2009. The old defences of diminished responsibility under section 2 of the Homicide Act 1957, and provocation, which was a messy mixture of statute and common law, have now been abolished and replaced with new statutory tests. As before, they are partial defences which can reduce murder to manslaughter.

The Homicide Act was a valiant attempt to stop hanging mentally disordered defendants whose violence was associated with a mental disorder, but fell short of insanity, by introducing the concept of an 'abnormality of mind' which substantially impaired his responsibility for his actions.

The old definition detailed how you got the abnormality of mind, but not how it operated on thought and action. As psychiatry and law function in different time zones '“ our insanity law is courtesy of Daniel M'naghten who in 1843 had a pop at the prime minister Robert Peel, missed and hit his unfortunate secretary '“ there was an increasing mismatch between what the law required and what psychiatry diagnosed, and consequent confusion for juries as well as everybody else about what 'mind' is, when it is abnormal, and what effect that has on moral culpability.

The Law Commission has been working on reform of murder since 2004, from bringing in categories of first and second degree murder depending on fault, to permitting duress to be a defence to murder. These provisions are the results of their labours so far.

Abnormality of mental functioning

Section 52(1) provides that a defendant is not to be convicted of murder if he had an abnormality of mental function which came from a recognised medical condition, provided an explanation for his acts or omissions, and substantially impaired his ability to understand his own behaviour, or to form a rational judgment, or to exercise self control. One or more of those is required. The rational judgment provision begs the question: how much of a rational judgement is ever involved in a killing done in anger or fright, absent self defence or military compulsion?

Under section 52(1)B the abnormality provides an explanation for the defendant's conduct if it causes or is a significant contributory factor in causing him to do what he did. How strictly the causation factor will be applied is one to watch '“ difficult though it is to imagine, it mightbe possible for someone who has small capacity for rational judgments generally to fall through this net if he demonstrated a process of reasoning about the killing which made sense.

The Law Commission pushed for a further category to go with abnormality of mental functioning '“ developmental immaturity '“ to provide a defence for children who kill. They argued that because children can be developmentally delayed because of natural, social or environmental factors which mean their self control and functioning is inadequate, they should have a specific defence for those circumstances.

They took evidence from the Royal College of Psychiatrists on the function of the frontal lobes on impulse control, which tend not to be fully formed till mid adolescence. That provision didn't make it through the parliamentary process '“ presumably a medically verified case of development delay would count as a recognised medical condition, and the statutory defence would be available.

Losing control

Provocation as a defence has been a bug bear for feminists for years. It was seen as readily available to men dissed about their sexual performance by nagging unfaithful wives, and not available enough to abused women who killed violent husbands when it was safer to do so. The new provisions change that. Judges now can refuse to let the defence go before the jury if there is insufficient evidence raised to support it.

Under section 54 provocation will succeed where the killing was as a result of loss of control, that loss of control being triggered by a 'qualifying factor', where a person of the defendant's sex and age with a normal degree of tolerance and self restraint and in the same circumstances might have reacted in the same or a similar way.

The first permitted trigger for loss of control is that the defendant was in fear of serious violence, by the victim, against the defendant or another identified person '“ useful in self-defence cases where the force used to beat off an attack was not reasonable, as well as by abused spouses. The second trigger is where something is done or said which 'constituted circumstances of an extremely grave character, and caused the defendant to have a justifiable sense of being seriously wronged' '“ more than mere insults, with a reasonable requirement built in. The third trigger is when both are present.

Revenge attacks are specifically excluded from the defence, as are the rather novelistic provisions of section 55(6)(a) and (b) where the defendant incites the victim to induce serious fear of violence or grave offence to him so that he can then use this as an excuse to use violence against the victim.

The loss of control no longer has to be sudden, although delay and the reasons for it are relevant issues. This covers the 'slow burn' cases, generally abused women. This went down well with the more extreme men's groups and certain lady columnists: the vitriol it provoked about murdering lying feminist hags was a provocation all on its own, matched only by the rage engendered by a new clause popped in by parliament '“ section 55(6)(c) states that sexual infidelity, in word or deed, is to be 'disregarded' as a trigger. Quite right too '“ we are not French and crime passionel is not the British way.