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APPENDIX G

A SOCIOLOGICAL HISTORY OF PROVOCATION AND DIMINISHED RESPONSIBILITY

1. The purpose of this Appendix is to explain the background to, and socio-political context of, the introduction of the partial defences of provocation and diminished responsibility. A considerable period (12^th to 19^th centuries) is covered in the historical analysis of provocation. In contrast, the relevant period for diminished responsibility is much shorter (that partial defence having only been created in England and Wales by statute in 1957). A brief historical review in relation to diminished responsibility follows that relating to provocation.^[1]

The history of provocation

2. In Consultation Paper No 173 we focused on the more recent history of provocation, that is, its legal development from the 17^th century to date. Here we expand on this, not only commenting on the earlier history of provocation dating back to the 13^th century, but also looking at wider sociological developments and the concomitant developments in the criminal justice system as a whole.
3. Radzinowicz wrote:

[C]riminal law is but one element in any system of criminal justice. Its growth, character and indeed its ultimate effect are largely determined by the character and degree of development of other component parts.^[2]

4. We examine some of these component parts and other broader factors influencing the development of the doctrine of provocation. Then, as now, provocation was inextricably linked to the nature of culpable homicide offences, applicable punishments and contemporary sentiments and sensibilities. Beginning as far back as the 1100s, when culpable homicides were emendable (remediable through compensation to a victim's family)^[3] we consider the use and restriction of Royal pardons, the excessive application of the death penalty and the development and use of secondary punishments. We also outline the jury's role in seeking to avoid strict application of death penalty statutes, highlighting the role of provocation in such decisions, and the effect such measures had on the development of the substantive law.
5. To understand these legal changes better, we consider the broader social developments surrounding them, such as the sense of lawlessness in medieval times spawning strict legislation to feign a sense of control. This in turn is linked to the role of the jury in mitigating the application of such laws. We touch on the struggle for reform and the opinions of those who influenced the development of the criminal justice system. We also assess the impact of the challenge to improve social morals and tackle drunkenness followed by the creation of a national police force and how these social and political developments coincided with the initiation of legal constructs such as the archetypal reasonable man.
6. Through expounding these broader factors, inextricably linked to the development of the partial defence of provocation, we hope to elucidate the background that has informed and guided our recommendations.

The Law on Murder 1100 – 1900

The Twelfth and Thirteenth Centuries

7. One might assume that the crime of murder is easy to define. Not so. The legal definition of murder has changed dramatically over the years, from a very limited concept, to a broader offence, and is still the root of many debates, with public perception of the offence significantly at variance with the law.
8. Whereas today in England and Wales a murder conviction can be obtained even if it is shown the defendant did not intend to kill, historically, murder was a much narrower offence.
9. From Anglo-Saxon times to the mid-twelfth century the most serious form of culpable homicide was limited to killing another in secret or by stealth and it was a capital offence.^[4] In this sense it has been argued that murder was distinguished from other forms of culpable homicide on the basis of the manner in which the act of killing another was carried out.^[5] Homicide by stealth was thought to be more serious because it caught the victim unawares, unable to prepare any defence against the attack.
10. Historically, when a homicide occurred, two different actions could be brought: proceedings under the King's jurisdiction (a public prosecution) and an appeal for felony of death, which was equivalent to a private prosecution by interested parties, usually the relatives of the victim.^[6] By the thirteenth century all felonious homicides had, at least in principle, been brought under the King's jurisdiction and were capital offences,^[7] although in some areas certain types of homicide were still considered emendable.^[8]
11. Culpable homicide was divided into two categories: felonious homicides and non-felonious homicides. Felonious homicides were killings committed with malitia praecogitata (malice aforethought). Such crimes were capital crimes and therefore non-emendable. Under the King's jurisdiction it was possible to receive a pardon de gratia (pardon of grace) but such pardons were mainly given in return for substantial favours. They were generally granted before any trial began and provided immunity from further proceedings.^[9]
12. Non-felonious homicides included justifiable homicides and excusable homicides. The killing of escaping thieves or the killing of an outlaw resisting arrest would be justified and the defendant would be acquitted. A non-felonious homicide would be excusable on two broad grounds: where the killing was committed in self-defence or where the killing was committed by accident.
13. Self-defence was narrowly defined. The defendant must have done everything possible to avoid retaliation and should have backed away from the threat as far as physically possible. Conversely accident was broadly defined. It included all unintentional homicides. A finding of excusable homicide was pardonable by the Crown. This pardon de cursu from the King was required, but was granted almost automatically.^[10]
14. At this time there was no specific defence of provocation, but Horder argues that early cases indicate a de facto operation of the defence long before it was recognised as an established legal doctrine.^[11] Once we have outlined the development of the substantive offences of culpable homicide, we will look at the role of the jury in the application of the available defences and how this influenced the emergence of the doctrine of provocation.

The 1390 Statute and beyond

15. Prior to the 1390 Statute,^[12] which effectively broadened the definition of murder,^[13] culpable homicides were basically divided into two types: those committed by secrecy or stealth (murders) and those committed otherwise.
16. In a society where homicides were "a daily fact of life"^[14] it may be thought odd that the legal definition of murder was limited to those undertaken at night, in secrecy or by stealth. However, this may have been because in the comparatively lawless and inadequately policed medieval society, where poor medical treatment made death from assaults much more likely, the act of killing did not, inherently, attract the level of horror it does today. As Green points out:

The execution of those who slew of a sudden would have meant not only a dramatic increase in the numbers sent to death, but also the frequent condemnation of neighbours and friends, persons of generally good reputation.^[15]

17. Kaye's research^[16] on murder in the 1300's has led him to assert that "a very common, one might even say the normal, sequence of events in homicide cases was the drunken quarrel, followed by brawling and fighting, leading to immediate recourse to the knife or club which every man carried."^[17] He believes that the reason the criminal law was "indifferently administered" and therefore many homicides went unpunished, was because "most killings were of the pot-house variety, committed by people of no great rank or substance upon others of a like sort."^[18]
18. The recorded motives for homicide focus on "gain, or vengeance, or some petty quarrel"^[19] There was little evidence of organised crime in the thirteenth century or of the participation in criminal activities by persons of rank.^[20] The fourteenth century, however, tells a different story. Armed bandits were sometimes organised by people of rank and they would rob and murder on the highways. In this environment attacks of vengeance took the form of more organised crime.^[21]
19. In the mid 14^th Century parliament was facing two major concerns: the increasing number of professional homicides by ambush, not then necessarily included within the strict technical definition of murder at night by stealth, and the frequency with which offenders were granted a royal pardon. Both of these factors were contributing to a growing sense of increasing crime and insecurity.^[22]
20. In order to address these concerns the 1390 Statute effectively broadened the definition of murder by listing those offences for which royal pardons would not be available. It stated:

[N]o charter or pardon from henceforth shall be allowed before any justice for murder, or for the death of a man slain by await, assault, or mallice prepensed, treason or rape of a woman.^[23]

21. In Kaye's view "The Statute caught the definition of Murder in a state of transition, when ancient notions of ambushing were giving way to a more recently promulgated idea that pre-meditation, spite or malevolence were the identifying features of the worst kinds of homicide."^[24] In essence it re-defined murder as an assault that was planned and deliberated and moved away from the much narrower focus on murder at night by stealth.
22. Following this statute the jury had to determine whether or not an assault causing death had been committed with malice aforethought because, if it had been, a Royal pardon would not be available. The Crown's right to issue pardons was now limited to cases of self-defence or accident, or cases where malice prepense was absent.^[25] This was the beginning of a more recognised distinction between levels of culpability in homicide offences. The focus was placed on the intent with which the action was committed.
23. This distinction meant that the jury now faced a more complex question in homicide trials and Horder notes that judges developed new terminology to explain to the jury the moral differentiation that should be made between cases deserving of a pardon and those that should not evoke such reprieve.^[26] For example, in 1403 a grand jury was instructed:

Also you will inquire about all sorts of homicides both of those who lie in wait through malice aforethought [par malice deuant pourpense] in the peace of homes and other places [and who] murder people and of those who slay men through a hot-blooded mêlée [chaude melle] …^[27]

24. Horder views the "introduction" of this question following the 1390 Statute as ex post facto and rather ironic. He asserts that judges would have been well aware that juries had already been deciding such issues through their fact-finding powers for many years.^[28]

The Role of the Jury

25. The shift from emendable homicides to the classification of all felonious homicides as capital, coupled with the restriction of royal pardon, meant that where previously a superficial wound from a fight that led to death may have been an emendable homicide, the punishment at law was now death. Thus, there was no legal distinction between the murderer who killed by stealth and the misfortunate brawler who killed in hot blood. Whilst these were the formal rules, their operation in small community settings where the killings took place differed somewhat.
26. When a body was discovered the local Coroner carried out a fact-finding mission through speaking to friends and relatives of the deceased and other local parishioners. He would then order the sheriff to arrest and charge the suspect. The jury was chosen from the surrounding area. Close relatives of the deceased and anyone known to bear a grudge against the defendant were prohibited from serving on the jury, but familiarity with the facts of the case, the defendant and previous offences was thought to be an advantage.^[29]
27. The legal distinction between felonious and non-felonious homicides, as expounded above, was largely consistent up to the sixteenth century. Green believes this was due to the jury's complete control as finders, interpreters and selectors of facts. The jury's sworn evidence to the judge was determinative of factual issues. This role allowed jurors freedom to develop the facts to fit the law and achieve their desired result in the case. This freedom created de facto classifications of culpable homicide that in turn formed the basis of the later legal distinction between murder and manslaughter.^[30]
28. Horder shows how the jury used their wide fact finding powers to fit provocation cases into one of the two types of non-felonious excusable homicide; accident and self-defence. Among other examples he includes the 1341 case of Robert Bousserman who returned home to find his wife having intercourse with another man, John Doughty. According to the Coroner's report Bousserman proceeded to kill Doughty with a hatchet. The jury's rather improbable version of events involved Doughty sneaking into Bousserman's property one night to find Mr. and Mrs. Bousserman fast asleep. The wife then awoke and quietly jumped into bed with Doughty. Bousserman was awoken by a noise, went to look for his wife, and was no doubt a little shocked to find her in bed with Doughty, whereupon the jury found Doughty attacked him and injured him with a knife. As the facts were presented, Doughty then locked Bousserman in his own home preventing him from escaping and leaving him without option other than to kill his captor by a single blow to the head with a hatchet.^[31]
29. As presented, these facts allow a clear case of latter day provocation to be excused, and therefore pardoned de cursu, under the guise of the narrowly defined self-defence. The jury was setting de facto standards of what was excusable in homicide.

Changes to the mens rea of murder

30. Although the distinction formalised in the 1390 statute between simple homicide and murder was initially applied with relative success Green doubts that the Statute was observed after the 1430's. Its demise removed the need for distinction between levels of homicide and the term "murder by malice aforethought" lost its narrow meaning and was used in all homicide indictments.^[32]
31. Green therefore concludes that, although one cannot be sure exactly what malitia precogitata meant by the 15^th century, it certainly did not require any degree of intent beyond that required for general felonious homicide.
32. However, a combination of procedural reforms, statutory limitations and common law precedents over the late fifteenth and early sixteenth centuries saw the re-emergence of distinctions in homicide, along similar lines to those initially passed in the 1390 statute.
33. Procedural reforms in the course of the 16^th century limited the jury's role as fact selectors. The production of evidence instead became the role of the justice of the peace and the court instructed the jury in the light of this evidence.
34. The changes removed much of the jury's power to construe the facts in order to obtain a socially acceptable outcome, and in turn passed on this power to the bench. This provided opportunity for development of the law of homicide and meant the judge could more effectively pressure the jury into conforming with precedent, even where it may have conflicted with contemporary social mores.^[33]
35. However, it also meant that where previously the jury could have achieved an outcome by manipulation of the facts to suit the established legal structure, the legal structure now had to develop in order to be seen to do justice.
36. Statutory developments limiting the use of Benefit of Clergy (see paragraphs 41 – 44, below) forced the courts to define the distinctions between murder and manslaughter with greater precision. In doing so, murder again became associated with homicides committed with malice aforethought. Green charts the reflection of this development in early sixteenth century legal writings.^[34] He cites the distinction outlined in the 1510 edition of The Boke of Justyces of Peas as clarifying contemporary usage:

Murder is properly where a man by malice prepensed lies in wait to slay a man and according to that malicious intent and purpose he slays him so that he who is slain makes no defense against him, for if he does it is manslaughter and not murder … And manslaughter is where two men or more meet and by chance medley they fall at affray so that one of them slays the other; [this] is but felony …^[35]

37. However, the concept of malice aforethought became distorted. One of the most pressing problems facing parliament was that of homicide in the course of theft. Such intentional killings often lacked the premeditation required for murder, and therefore may have escaped the ultimate penalty. In the mid to late sixteenth century the courts dealt with this by treating such cases as murder even though the lack of premeditation was acknowledged.^[36]
38. In order to tackle this problem, by the late sixteenth century the legal fiction implied malice had been created to weave 'deserving' homicides into the web of premeditated murder. The required malice was implied where the actus reus of the homicide involved, amongst others, the killing of a policeman, killing in the course of a felony and killing in the course of unlawful violence.
39. This legal construct was expounded and developed by legal theorists of the day. In 1583 Crompton explained it thus:^[37]

It would seem that there are two kinds of malice, implied and express malice: implied malice is when a man kills another suddenly but without the latter making any defence, as when the latter is climbing over a stile, or something of that kind: and express malice is when it is known that there is malice between the parties.

40. Whereas previously provocation cases had been factually manipulated by juries to fit within the narrow exceptions to excusable murder (see paragraph 28, above) this option was now largely foreclosed. Instead, the doctrine of implied malice had sprung up and in its wake lay the issue of how to deal with circumstances where, although malice could be implied, society might view the homicide as less culpable and demand a lesser sentence. Chance-medley and the formal doctrine of provocation grew out of this need to define occasions where the fiction of implied malice could be rebutted so that the verdict was not murder but manslaughter on the basis of lack of premeditation. As we shall see below, this distinction was crucial because a manslaughter verdict left open the possibility of benefit of clergy.

Benefit of Clergy

41. This institution stemmed from the historical division between secular and religious legal authority. It was based on the Church's right to try and punish ordained clergy for alleged crimes. The Crown retained the right to try defendants at first instance and would then hand them over to the Church for a retrial under Canon law and punishment. The 'benefit' lay in the fact that penalties for offences at canon law were less severe than those for the same offences at common law. Where at common law a homicide would probably have led to the death penalty, with the advantage of benefit of clergy, a convict might have received no more than a temporary prison sentence.
42. In the fifteenth century the test for those eligible for benefit of clergy became very lax. Defendants could merely feign literacy or recite the words Miserere mei Deus from Psalm 51 to be exempted from the criminal process.^[38] As a result of the increased use and fraudulent abuse of benefit of clergy Parliament resolved to decrease its availability. In 1488 a statute was enacted to prevent repeated reliance on benefit of clergy. It ordered that those who had pleaded it once be branded according to the offence committed.
43. This rather arcane and otherwise unremarkable anomaly of benefit of clergy is of utmost importance to the development of the doctrine of the law on homicide and the doctrine of provocation. In 1547 Parliament passed another statute further restricting the use of benefit of clergy by excluding its availability for murder but not for manslaughter. As a direct result of this statute the courts began to pay much closer attention to the distinction between murder, committed by malice aforethought, and manslaughter by chance medley. It had become, quite literally, a matter of life and death.
44. Benefit of Clergy was abolished in 1827.^[39]

Chance-Medley

45. The doctrine of chance-medley emerged in the mid-sixteenth century as the courts began to interpret the intentions of Parliament. Originally homicide was divided into murder and chance-medley on the basis of whether the killing was deliberate or accidental. There was no requirement of premeditation and both were capital crimes. However, through judicial interpretation the distinction became focussed on the presence or absence or premeditation.
46. By Coke's time chance-medley was understood as referring to "an angry brawl or encounter in the course of which a person was killed." Kaye believes that Coke merely assumed chance-medley meant roughly the same as chaude-mellee in France, and the doctrine developed accordingly.^[40] Hostettler also links this interpretation to "the growth of the affray type of murder in the new social circumstances of the sixteenth century."^[41]
47. Its development was influenced by the legally constructed presumption of implied malice as described above.^[42] This doctrine, which applied in the most brutal but non-premeditated murders, could be rebutted in certain circumstances, one of which was chance-medley.^[43]
48. Salisbury's case^[44] was decided in 1553, only six years after the 1547 statute removing the possibility for benefit of clergy for murder convicts. It is an interesting case because it is the first case to fully report a manslaughter verdict. The case involved an ambush planned by one Richard Salisbury and his men, against Ellis and his men, which resulted in an affray. The defendant, John Vane Salisbury, happened upon the scene without any foreknowledge of its origins and thereupon intentionally killed one of Ellis' servants.
49. Horder comments that the judges in this case "were well aware of the implications of a judicial ruling that manslaughter was the appropriate verdict",^[45] in the light of the statutory provision removing benefit of clergy for murder. They held that he was guilty of chance-medley manslaughter on the grounds that he did not have malice aforethought. Horder claims that the decision confirms as a matter of law that which had been recognised for many years as a matter of fact:

[The decision in Salisbury's Case] seems to confirm that it is the fact that the killer has been provoked by the sight of his master engaged in a fight that is the rationale for mitigating the unpremeditated killing, and not the mere fact of the servant's lack of premeditation itself.^[46]

50. Indeed, within 60 years of this decision judges treated such circumstances (witnessing a master or kinsman under attack) as a head of provocation in order to reduce murder to manslaughter.
51. The immediate impact of the widening of manslaughter was the availability of either benefit of clergy or a royal pardon and thus the avoidance of capital punishment. It seems that while Parliament was attempting to restrict the operation of mercy through legislation, the precedents established in court were ensuring it continued. Previously the jury had been able to manipulate the facts to achieve the desired result. However, as this avenue of mercy was diminished by restrictive legislation, the social will appears to have found legal form through common law precedents.

Inconsistent application of the death penalty and increasing use of alternative punishments.

52. Until the seventeenth century, alternative punishments, such as transportation and imprisonment, were used infrequently. The deterrent effect of transportation was doubted and prisons were known to be "centres of corruption".^[47] In this environment the use of benefit of clergy and the royal prerogative of mercy were crucial to avoiding capital sentences.
53. However, following the Restoration, the use of royal pardons conditional upon transportation increased for clergyable offences. In 1679 such conditional pardons were given a statutory basis in the Habeas Corpus Act^[48] and were extended to all offences in 1707.^[49] The 1800's also saw an increase in the use of imprisonment with hard labour for felonies and other punishments such as public or private whippings.
54. Prior to the Restoration, justice had been administered in a severe but haphazard manner. Froude writes of spasmodic intervals of extraordinary severity, when twenty thieves might have been seen hanging together, which might be followed by periods when justice "was scarcely executed at all."^[50] The monarchy may have been restored but an overwhelming sense of insecurity remained. In the early 1700's London was menaced by the existence of unruly mobs threatening public safety and creating chaos and disorder. Although the rebellion of 1745 was crushed, the sense of anxiety and insecurity of the era was not so easily extinguished. Severe legislation, in the form of many capital offences, was intended to create a sense of social control for political purposes. The fact it was rarely implemented in practice only further indicates the extent of the rift between political rhetoric and social reality.^[51]
55. In spite of the increase of capital offences on the statute book, Radzinowicz charts the decrease in the use of the death penalty through the eighteenth and nineteenth centuries.^[52] From 1749 to 1758 his research shows that two out of three offenders capitally convicted were executed. From 1790 to 1799 this figure decreased to one in every three. Between 1800 and 1810 only one in every seven defendants sentenced to death was actually executed, with a precise breakdown of one in seven between 1800 to 1802 and only about one in every ten between 1808 and 1810. Specifically, in relation to murder, in 1810 of the 28 defendants committed to trial for murder, one was not prosecuted, 14 were acquitted, and while 13 were convicted, only 2 were executed.^[53]
56. These results lead one to question whether the law in this epoch correlated with the moral standards of the community. While public attitudes were moving away from the implementation of the death penalty the legislature was refusing to reform capital statutes. Rather, it continued to legislate new capital offences with more vigour than ever before. In response, the jury and the bench continued to evade a strict application of the law as best they could. The law was out of kilter with public attitudes.
57. In this environment, following the procedural restrictions on jury manipulation of the facts in murder cases, and the restriction of more arbitrary escape from the death penalty through royal pardons and benefit of clergy, the doctrine of provocation solidified through common law precedent. In 1830 Jeremy Bentham published a pamphlet calling for the abolition of the death penalty for all offences including murder. Perhaps, had the courts not enshrined the defence of provocation in the law of the land, it would not have been another 127 years before Bentham's demands were met.
58. By the nineteenth century, although the English Criminal Law remained the severest in Europe on statute, the use of the death penalty had decreased dramatically and transportation and imprisonment had largely superseded all other punishments. Radzinowicz notes that in 1805 an "overwhelming majority" of those convicted "were sentenced to transportation or imprisonment." The figures he cites show "the ratio of capital to other convictions was one in eight, while that of executions was approximately one in forty." He argues this shows that "the death penalty was only chosen as the most appropriate penalty in a small number of cases."^[54]
59. Reflection on this period suggests that while Parliament continued to increase the number of capital offences, and political rhetoric required the toughest approach to crime, the judiciary sought to mitigate the severity of legislation. The emergence of the doctrine of provocation is only one example of this tendency.
60. While cases of felonious homicide committed with malice aforethought still attracted the death penalty, its general demise and the concomitant increase in the use of alternative punishments coincided with and complemented the development of the doctrine of provocation. Increased social acceptance of an adequate secondary punishment most probably added an air of legitimacy to a verdict of manslaughter by provocation and may thereby have inadvertently encouraged the development of this common law doctrine.

Changing Standards of Morality and the Establishment of the Police Force

61. Reviewing the era, Radzinowicz blames the increase in crime and insecurity on "an utterly inadequate and often corrupt police, disorganised prisons – even then a public scandal – and the gravely inefficient administration of the Poor Law."^[55] He records the problems of widespread alcoholism, lack of constructive social policy and moral laxity and notes that the rate of pubs to dwellings in London was one in eight in Westminster, one in five in Holborn, and one to four in St. Giles.^[56]
62. Fielding's tract "An Inquiry into the Causes of the Increase of Robbers" (1750) viewed the increase in delinquency as a social issue, influenced by the constantly changing structure and manners of society.^[57] As with many of the reformers of this era, Fielding viewed the vices and pleasures of the lower strata of society as dangerous. He advocated an extension of the criminal law to penalise such behaviour, but did not view corresponding vices of the upper classes as similarly damaging.
63. These arguments provided the basis for the burgeoning movement for the reformation of manners at the end of the eighteenth century. While there was a pressing need for reformation of the police force in order to maintain order and enforce the law, there was little political will for such reform. Instead, political and religious leaders joined together to persuade communities to unite and be vigilant against crime together. There was a cry for social cohesion, not only practically, but also morally.
64. Several societies were formed, such as the Society for the Suppression of Vice and the Encouragement of Religion. Implied within their aim was a mandate to ensure the law was respected and, more importantly, applied, especially in relation to vice. Wilberforce believed it was his divine calling to safeguard the morals of his country, and he argued that legislative measures were necessary, alongside religion, to uphold moral standards.
65. While these movements were not directly concerned with either the offence of murder or the partial defence of provocation, the movement as a whole influenced social standards which are in turn reflected in the development of the doctrine of provocation. As will be seen below, provocation developed in a casuistic fashion, responding primarily to these changes in the moral and social standards of behaviour.
66. At a practical level, despite the efforts of the Societies, an effective police force was desperately needed to provide a uniform approach to law enforcement and the prevention of crime, but widespread scepticism of the police and fear of despotic state control kept the topic a political taboo.
67. A small, but not insignificant, impetus for reform of the police force came in 1811. In the space of two weeks the small community of Ratcliffe Highway in Wapping, in the east end of London, was hit with the separate murders of two whole families in a most brutal fashion. The fear generated by these events caused great consternation for the Home Secretary in London and the news reached communities throughout England. Not least of the worries was the inadequate manner in which the local police dealt with the inquiry, arresting suspects randomly on unjustifiable grounds and making little headway. There was widespread belief that such murders could only be the work of foreign nationals due to the increasing numbers of foreign sea men in England, and three Portuguese fisherman were held for a time but then released without charge. Eventually some headway was made with the discovery of the owner of the murder weapon, a maul. Although several Portuguese suspects were still in detention one John Williams, who had lodged with the owner of the implement, was arrested. His guilt was never proven because he hanged himself after his first interview, but it was asserted that he and he alone was to blame for murdering both families.^[58]
68. The fear generated by these horrific events led to suggestions for modifications to the existing police force, but there was still fear of giving the police any power of pre-emptive arrest on the basis of mere suspicion. This fear was gradually eroded over the coming years under the influence, in particular, of the work of Edwin Chadwick, who campaigned for a preventative police force on the basis of Jeremy Bentham's utilitarian principles.^[59]
69. In concert with Chadwick's work, and following on from the failure of the new moral order to prevent tragedies such as the Radcliffe murders, the Metropolitan Police Force was established in 1829. Although at first this new, more centralised, preventative police force was limited to certain areas of central London, and met with some hostile criticism, the overall impact on the reduction of crime rates and controlling of rioters helped to win over public opinion.^[60] The success of the Metropolitan Police Force led to the 1835 Municipal Corporations Act and the 1839 Rural Constabularies Act, which permitted the establishment of rural police forces. However, it was not until the 1856 Police Act that rural forces became obligatory.
70. With the backbone of the early nineteenth century quest for moral and social order and responsibility, and the eventual creation of a preventative police force, the England of the late 1800's was a safer community. Alongside a more developed definition of the offence of murder, and more readily accepted alternatives to capital punishment, there was now less need for weapons to be carried habitually or for resort to duelling. Whereas provocation may have initially developed as a defence for the duelling gentleman reacting in hot-blooded anger to a slight against his honour, as the common social order changed, the common law followed.

Changes in the Law of Provocation

71. The understanding of what behaviour was capable of constituting "provocation" evolved from the eighteenth to the twentieth century reflecting changes in contemporary standards as to what was acceptable behaviour and a desire to ensure that there were appropriate limits as to what could constitute "provocation".
72. In the early eighteenth century case of Mawgridge^[61] the defendant initially insulted a woman. On the victim's request that he leave the room, he proceeded to throw a bottle at the victim. The victim responded in kind and the defendant then drew his sword and stabbed the woman. The jury's verdict was murder. The victim's response of throwing a bottle was held not to be provocation. Lord Holt CJ stated what conduct was capable of constituting "provocation":

First, if one man upon angry words shall make an assault upon another, either by pulling him by the nose, or filliping upon the forehead, and he that is so assaulted shall draw his sword, and immediately run the other through, that is but manslaughter …

Secondly, if a man's friend be assaulted by another, or engaged in a quarrel that comes to blows, and he in the vindication of his friend, shall on a sudden take up a mischievous instrument and kill his friend's adversary, that is but manslaughter …

Thirdly, if a man perceives another by force to be injuriously treated, pressed, and restrained of his liberty, though the person abused doth not complain, or call for aid or assistance; and others out of compassion shall come to his rescue, and kill any of those that shall so restrain him, that is manslaughter …

Fourthly, when a man is taken in adultery with another man's wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for jealousy is the rage of a man, and adultery is the highest invasion of property …^[62]

73. This judgment demonstrates that what was capable of constituting provocation was confined to a limited number of defined categories. Ashworth submits that the link between these four categories of provocation is that of "unlawfulness".^[63] Horder refutes this however, asserting that "Ashworth's analysis of the early modern law lacks … a theory or frame of reference for explaining the gravity of provocation, which is grounded in an account of 'the natural feelings of [that] past time'".^[64]
74. The development of the partial defence of provocation has been influenced by the social circumstances in which it has operated. Although the early case law does not specifically refer to the social context, its significance was identified in 1949 by Lord Goddard CJ:

At a time when society was less secure and less settled in its habits, when the carrying of swords was as common as the use of a walking stick at the present day, and when duelling was regarded as involving no moral stigma if fairly conducted, it is not surprising that the courts took a view more lenient towards provocation than is taken to-day when life and property are guarded by an efficient police force and social habits have changed.^[65]

75. It would appear that in the early eighteenth century conduct of a kind which would now be considered trifling was considered a grave affront. One can only speculate how such behaviour would have been viewed by the agricultural labourer. Such "trifling" affronts by one member of the nobility to another probably had a significance that would puzzle the modern observer and may well have similarly puzzled contemporaries of different social strata.
76. Horder argues that proving "purity of will" was the key to escaping a murder conviction. From the earliest examples of provocation cases, where the jury sought to fit the facts within the narrow self-defence exception, they did because the defendant killed with intent as a last resort, and not from "corrupt intention". It was not based on there being no intention to kill,^[66] This can be linked to the development of the doctrine of implied malice in murder – demonstrating 'purity of will' would rebut the presumption of implied malice. The acts amounting to provocation outlined in Mawgridge range from rather trivial insults to serious offences, but can be drawn together under the banner of defending honour. To this extent, the early doctrine of provocation may have operated to excuse a gentleman, whose vices were seen to be less socially damaging, more readily than it may have a vagabond. A man defending his honour was acting out of a pure will. Not to have done so would have been a social disgrace. However, social disgrace is often a class specific concept.
77. The more subjective approach taken to the question of whether the defendant was provoked at the time of action in early case law backs up Horder's theory that emphasis was on the 'purity of will' of the individual defendant. In Oneby^[67] the length of time permissible between the provocative act and the response was said to vary because "it will require a longer time in some, for reason to get the better of their passions, than in others".^[68] This test was applied in Lynch^[69] where in summing up it was stated that the jury should consider whether there was "time and interval sufficient for the passion of a man proved to be of no very strong intellect to cool …".^[70]
78. A shift of emphasis starts to emerge in the mid-nineteenth century. In Kirkham^[71] the analysis is still explicitly focussed on the lack of malice,^[72] but the judgment concludes that the defendant:

must be excused if the provocation was recent and he acting on its sting, and the blood remained hot, but you must consider all the circumstances, the time which elapses, the prisoner's previous conduct, the deadly nature of the weapon, the repetition of the blows, because, though the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being, and requires that he should exercise a reasonable control over his passions.^[73]

79. Following the emergence of the "reasonable man" in Welsh^[74] the courts increasingly emphasised the need for a reasonable relationship between the provocation and the response.^[75] Whereas, initially, proportionality had been employed to test whether or not the killing had been perpetrated with the "wickedness" associated with malice prepensed, over time it was transformed into an objective test. Where there was no reasonable relationship between the provocation and the response, and the "reasonable man" would not have reacted to the provocation as the defendant did, the defence failed.^[76]
80. The late nineteenth and early twentieth centuries saw the courts limiting provocation through a new and restricted understanding of mens rea for murder and the introduction of the "reasonable man". It is possible that these restrictions may have been related to a new social order evolving following the campaign for public morals and the presence of the new police force in mid-nineteenth century. As the country adapted to the new social order, it would appear that the courts found a new legal focus. However, it is not clear how consistent the courts were in their application of the reasonable man test in practice. The Report of the Royal Commission on Capital Punishment (1949–1953) noted the conflicting tendencies in the evolution of provocation law in England.
81. On the one hand the courts have limited the scope of provocation recognised as adequate to reduce murder to manslaughter, and subjected it to increasingly strict and narrow tests. On the other, the greater severity of the law has at times been tempered by leniency in its application. Juries, sometimes with the encouragement of the Judge, sometimes in the face of his direction, have returned verdicts of manslaughter where, as a matter of law, the most favourable interpretation of the evidence could scarcely justify them in doing so. Successive Home Secretaries have been ready to recommend the exercise of the Prerogative of Mercy where the prisoner has been convicted of murder but has acted under substantial provocation of a kind or degree insufficient in law to reduce the crime to manslaughter.
82. Each of these tendencies reflects corresponding developments in the evolution of society. The distinction between murder and manslaughter was first elaborated at a time when the common mischief to be guarded against was the occurrence of set fights with deadly weapons. Later it had to be adapted to a changed situation, where the common mischief was the taking of inordinate vengeance for comparatively trifling injuries, such as returning a box on the ear by a pistol shot or a deadly stab. In a more civilised society the citizen was expected to react less violently to provocation that was not gross.^[77]
83. In "The Politics of Criminal Law" Hostettler identifies "a long standing problem of endeavouring to distinguish murder and manslaughter by means of concepts of intention, premeditation, and provocation." He concludes, "It remains, perhaps, the clearest example of the criminal law's failure to break out of the structure imposed by the responses of legislature and judges alike to feudal ideas and the consequences of the benefit of clergy."^[78]
84. History shows that provocation cannot be divorced from contemporary social reality, nor from the framework of the law on homicide within which the defence operates. This remains true today. The reforms suggested in this report step away from ancient legislative and judicial responses to "feudal ideas and the consequences of benefit of clergy". As history demonstrates and modern justice dictates, any review of provocation necessarily involves the study of how levels of culpability can and should be judged on contemporary social standards.

The History of diminished responsibility

85. The defence of diminished responsibility was first introduced in English law by the Homicide Act 1957. In this section, the law relating to mental illness in murder trials prior to the 1957 Act will be briefly outlined, as will the general political and social climate from the late 1940s through to the late 1950s.

The effect of mental illness on a trial for murder prior to the 1957 Act

86. Prior to the enactment of the 1957 Act, there were a limited number of ways in which a person's mentally disordered state might affect the outcome of criminal proceedings for murder:

1) A defendant's mental state at the time of committing the offence may have been such as to give rise to a verdict of not guilty by reason of insanity.^[79] In 1957, and until 1992, a verdict of not guilty by reason of insanity following trial on indictment resulted in a mandatory order that the defendant be admitted to a special hospital for an indeterminate period.^[80] The test for insanity was a narrow one, and already over 100 years old.^[81] Given the mandatory hospital order made following a verdict of not guilty by reason of insanity, it might be thought that prior to 1957 defendants would prefer not to seek such a verdict but rather plead guilty and hope for as lenient a sentence as possible. This was indeed the case in respect of allegations other than murder, which did not carry the mandatory death sentence. Accordingly, prior to 1957, the defence of insanity was, in practice, only very infrequently pleaded to offences other than murder.

2) The defendant, by reason of mental disorder, may have been unable to understand or participate meaningfully in the criminal proceedings. The focus was on the state of the defendant's mind, not at the time of the alleged offence, but at the date of trial. The test for determining whether the defendant was fit to plead (or to be tried) was not that laid down in the M'Naghten Rules but was similar in the following respect. The jury had to focus on the defendant's cognitive capacity to comprehend the nature of a criminal trial and follow its proceedings. If the jury found that the defendant was unfit to plead, another jury would decide whether he or she had done the act or made the omission charged. If the jury found that the defendant had not committed the conduct element of the offence, an acquittal would follow. If they found that the defendant had done the act or made the omission charged, the court had to order admission to a special hospital where the defendant might be detained without limitation of time.

3) The defendant may have pleaded not guilty on the basis of automatism.^[82] The automatism plea is an assertion by the defendant that the conduct was involuntary.^[83] Like the defence of insanity, its application is not confined to murder. The defendant is asserting that the conduct happened either against or, at least, without his or her will. In that sense, there is a denial of responsibility. Examples were provided by Humphreys J in Kay v Butterworth.^[84] One is where D, driving his motor car, is attacked by a swarm of bees and is disabled from controlling the vehicle. Alternatively, he is struck by a stone and rendered unconscious. Lord Goddard CJ said that in each of those examples the defendant "could not really be said to be driving at all".^[85] In neither example is the defendant mentally disordered. The relevance of mental disorder to automatism arose where the involuntary nature of the defendant's conduct was caused by a "disease of the mind". In such cases, despite the conduct being involuntary, the courts held that, as a matter of law, what was being raised was not the issue of automatism but the defence of insanity.^[86] Thus, if successful, the defendant was not acquitted of the offence but found to be "guilty but insane". The reasons for the law adopting this stance related to public policy.^[87]

The social and political context of the 1957 Act

87. During the late 1940s and the 1950s there was considerable consensus between the two main political parties, Labour and Conservative. This was reflected in both the style of government and the range of policies pursued in domestic affairs including penal policy.^[88]
88. In 1951 the Conservative Party, under Sir Winston Churchill, was returned to office and in 1955 won its second consecutive term in office, but with Sir Anthony Eden as Prime Minister. The issue of capital punishment reached its peak under Eden's premiership, with the second of the 1950s most controversial hangings. The first involved Derek Bentley, aged only 19, with epilepsy and a mental age of 11. He was hanged in 1953 for his part in the murder of PC Sidney Miles.^[89] Forty-five years later the Court of Appeal overturned Bentley's conviction and a full posthumous pardon was issued.^[90]
89. The hanging of Ruth Ellis two years later for the murder of David Blakely attracted further public attention to the issue. One thousand people stood silently outside Holloway prison in protest on the morning of the hanging. The case brought to the fore the debate about whether capital punishment could be justified in a civilised society. The Criminal Cases Review Commission referred Ellis's case to the Court of Appeal in 2003. The court upheld the conviction, stating that, in view of the material facts, there "could not in 1955 have been any basis for the jury to find that there was in law provocation at the relevant time".^[91]
90. The issue of capital punishment had been considered by the Royal Commission on Capital Punishment 1949 – 1953 which published its Report in 1953.^[92] It concluded that the outstanding defect of the law of murder was that it provided a single punishment for a crime widely varying in culpability
91. Chapters 4 and 5 of the Royal Commission's Report were devoted to Insanity and Mental Abnormality. Specifically, Chapter 5 addressed the issue of diminished responsibility. The Report noted^[93] that under English law no account was taken of forms of mental abnormality that were not so extreme as to render an accused person unfit to plead or wholly irresponsible for his actions. The sole exception was to be found in the provisions of the Mental Deficiency Act 1913 that authorised the courts to order the removal of mental defectives convicted of criminal offences, other than capital cases, to appropriate institutions instead of passing sentence.
92. The Report observed^[94] that by contrast the position was entirely different in Scotland where the doctrine of diminished responsibility enabled the courts to take account of lesser forms of mental abnormality in the cases of persons charged with murder.
93. The Royal Commission was of the view that although some "mental defectives" can properly be held wholly irresponsible, the majority should rather be regarded as having a diminished responsibility. It stated:

The diminution of responsibility may in borderline cases be relatively small, but it can never be excluded, and in our opinion it would not ever be right to carry out the sentence of death in any case where a prisoner is certifiable as a mental defective. It is indeed undesirable that the sentence of death should even be pronounced in such a case… .^[95]

94. The Report, nevertheless did not recommend the introduction of diminished responsibility as a defence (partial or otherwise) to murder. The reason was not that it was envisaged that juries would find the issue too difficult, or would tend to err in the direction of undue leniency. Rather, it was that, whereas murder and insanity, were both rare occurrences and often went together, forms of mental abnormality which caused diminution of responsibility were of frequent occurrence and were potentially relevant to a wide range of offences. It was felt, however, that the Royal Commission's terms of reference did not permit examination of whether diminished responsibility should be available as a defence of general application affecting liability to and punishment for all crimes.
95. With regard to murder the Report concluded that the introduction of a defence of diminished responsibility would be so "radical" an amendment of English law that it could not be justified for the "limited" purpose of avoiding the death sentence in cases of murder.^[96]
96. Instead, the Royal Commission, with one member dissenting, concluded that the test of responsibility laid down by the M'Naghton Rules was so defective that the law on the subject ought to be changed. They concluded that it would be better if the Rules were enlarged so as to cover defect of will as well as reason.^[97] Nine of the twelve commissioners regarded it as preferable for the Rules to be abrogated. Instead, the jury should be asked to determine whether, at the time of the act or omission, the accused was suffering from either a disease of the mind or mental deficiency to such a degree that he ought not to be held responsible.^[98] Thus, the concept of mental deficiency was to be introduced into the defence of insanity; a defence that would be applicable to all offences tried on indictment.
97. In 1956, amid a mounting anti-capital punishment campaign, Sydney Silverman MP introduced a Private Member's Bill in Parliament, proposing the abolition of the death penalty. Mr Silverman's Bill was defeated in the House of Lords.
98. It was against the background of the defeat of Mr Silverman's Bill and the Report of the Royal Commission, that the Homicide Bill was debated in Parliament. It received the Royal Assent on 21 March 1957. Whilst in legal terms, the introduction of diminished responsibility was an important step, the 1957 Act was most popularly known for the restrictions it placed upon the use of capital punishment. Except for a residual class of cases,^[99] the death penalty was abolished for murder by Part II of the 1957 Act.^[100]
99. The introduction of diminished responsibility, as a partial defence to murder alone, was contrary to the conclusions and recommendations of the Royal Commission on Capital Punishment. Nevertheless, the Government felt that such a defence was warranted. In introducing the clause which was to become section 2(1) of the 1957 Act the Home Secretary remarked:

A new defence will be open to those who, although not insane in [the] legal sense, are regarded in the light of modern knowledge as insane in the medical sense and those who, not insane in either sense, are seriously abnormal, whether through mental deficiency, inherent causes, disease or injury.^[101]

100. Supporting the clause, Mr Rees-Davies MP referred to the defence of diminished responsibility in Scots law:

The Scots, with their very admirable common sense, have an anomaly which lawyers cannot defend but which works out in practice … .^[102]

101. Two months after the Homicide Act 1957 received Royal Assent, the Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency 1954 – 1957 was published.^[103] It noted that

public opinion in general is moving towards a more enlightened attitude [toward mental illness], which is fostered and encouraged by the progress which has been made in the last fifty years in the understanding and treatment of mental disorders.^[104]

102. Whilst the provisions in the Homicide Act 1957 were clearly drafted prior to this Report, it is interesting to note the shift which appeared to be occurring simultaneously in societal and legal perceptions of mental disorder.
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Note 1    From para 85 onwards.    [Back]

Note 2    L Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume 1, The Movement for Reform (1948) p 24.    [Back]

Note 3    Although it is thought that by the 12th century culpable homicide was no longer emendable, certain types of homicide continued to be considered as emendable until well into the 13th century. See generally J M Kaye, “The Early History of Murder and Manslaughter” (1967) 83 LQR 365 at p 367, n 11a.    [Back]

Note 4    See J Horder, Provocation and Responsibility (1992) p 6 and generally, J Hostettler, The politics of Criminal Law Reform in the Nineteenth Century (1992) p 92.    [Back]

Note 5    See generally J M Kaye, “Early History of Murder and Manslaughter” (1967) 83 LQR 365 pp 383-391.    [Back]

Note 6    See J M Kaye, “The making of English Criminal Law” [1977] Crim L R 4 p 6 and The Year and a day rule in Homicide, Law Commission Consultation Paper No 136, p 6.    [Back]

Note 7    J Horder, Provocation and Responsibility (1992) p 6.    [Back]

Note 8    J M Kaye, “Early History of Murder and Manslaughter” (1967) 83 LQR 365 p 367.    [Back]

Note 9    Horder, Provocation and Responsibility (1992) p 6. See also T A Green, “The Jury and the English Law of Homicide 1200-1600” (1976) 74 Michigan Law Review 413 p 427 – 438.    [Back]

Note 10    “as a matter of course”.Ibid.    [Back]

Note 11    J Horder, Provocation and Responsibility (1992) p 10 – 11.    [Back]

Note 12    13 Rich. 2, stat. 2, c. 1 (1390) cited by TA Green, “The Jury and the English Law of Homicide 1200-1600” (1976) 74 Michigan Law Review 413 p 462.    [Back]

Note 13    See para 21 ff below.    [Back]

Note 14    T A Green, “The Jury and the English Law of Homicide 1200-1600” (1976) 74 Michigan Law Review 413 p 415.    [Back]

Note 15    Ibid, at 416.    [Back]

Note 16    Fellow of the Queen’s College, Oxford, author of articles referred to in footnotes 4 and 7 above and elsewhere.    [Back]

Note 17    J M Kaye, “Early History of Murder and Manslaughter” (1967) 83 LQR 365 p 370.    [Back]

Note 18    Ibid, p 380.    [Back]

Note 19    Ibid.    [Back]

Note 20    Ibid.    [Back]

Note 21    Ibid.    [Back]

Note 22    T A Green, “The Jury and the English Law of Homicide 1200-1600” (1976) 74 Michigan Law Review 413 p 415 and J Horder, Provocation and Responsibility (1992) p 10.    [Back]

Note 23    J Horder, Provocation and Responsibility (1992) p 10. The Latin read “[Q]e null chartre de pardon desore soit alowe devant qiconqes Justices pur murdre mort de homme occys par agait assaut ou malice prepense treson ou rape de femme …”.    [Back]

Note 24    J M Kaye, “Early History of Murder and Manslaughter” (1967) 83 LQR 365 p 367.    [Back]

Note 25    J M Kaye, “Early History of Murder and Manslaughter” (1967) 83 LQR 365 p 368.    [Back]

Note 26    J Horder, Provocation and Responsibility (1992) p 10.    [Back]

Note 27    Ibid, also cited by T A Green, “The Jury and the English Law of Homicide 1200-1600” (1976) 74 Michigan Law Review 413 p 467, n 200 (where the expression chance medley appears in place of “a hot-blooded mêlée”). Green states the earliest reference to chance medley he has found dates from 1388.    [Back]

Note 28    J Horder, Provocation and Responsibility (1992) p 11.    [Back]

Note 29    T A Green, “The Jury and the English Law of Homicide 1200-1600” (1976) 74 Michigan Law Review 413 p 423.    [Back]

Note 30    T A Green, “The Jury and the English Law of Homicide 1200-1600” (1976) 74 Michigan Law Review 413 p 420 - 427    [Back]

Note 31    J Horder, Provocation and Responsibility (1992) p 9.    [Back]

Note 32    See T A Green, “The Jury and the English Law of Homicide 1200-1600” (1976) 74 Michigan Law Review 413 p 473. Green cites the Latin form of the phrase used in indictments “ex malitia precogitata insultum fecit percussit et felonice interfecit et murdravit” (of malice (aforethought?) [the suspect] made an assault, struck and feloniously slew and murdered the deceased).    [Back]

Note 33    See T A Green, “The Jury and the English Law of Homicide 1200-1600” (1976) 74 Michigan Law Review 413 p 499.    [Back]

Note 34    T A Green, “The Jury and the English Law of Homicide 1200-1600” (1976) 74 Michigan Law Review 413 pp 476 – 479.    [Back]

Note 35    See TA Green, “The Jury and the English Law of Homicide 1200-1600” (1976) 74 Michigan Law Review 413 p 477 citing The Boke of Justyces of Peas f. 4a/b (2nd ed. 1510).    [Back]

Note 36    See J Horder, Provocation and Responsibility (1992) pp 15 – 16, citing Herbert’s Case (1558), Burchet’s Case (1574) and Emerie’s Case (1585).    [Back]

Note 37    As translated and cited by J Horder, Provocation and Responsibility (1992) p 17.    [Back]

Note 38    See J Hostettler, The Politics of Criminal Law Reform in the Nineteenth Century (1992) p 92, and J Horder Provocation and Responsibility (1992) p 11.    [Back]

Note 39    7 & 8 Geo4, c.28, s.6.    [Back]

Note 40    J M Kaye, “Early History of Murder and Manslaughter” (1967) 83 LQR 365 p 376.    [Back]

Note 41    J Hostettler, The Politics of Criminal Law Reform in the Nineteenth Century (1992) p 92.    [Back]

Note 42    See paras 38 and 39 above.    [Back]

Note 43    However, Horder notes that the mid-sixteenth century commentators did not speak of rebutting the presumption, only of circumstances in which manslaughter could still be found even where malice might have otherwise been implied. See J Horder, Provocation and Responsibility (1992) pp 17-19.    [Back]

Note 44    (1553) Plowd. Comm 100.    [Back]

Note 45    J Horder, Provocation and Responsibility (1992) p 13.    [Back]

Note 46    J Horder, Provocation and Responsibility (1992) p 14.    [Back]

Note 47    L Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume 1, The Movement for Reform (1948) pp 31 – 32.    [Back]

Note 48    L Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume 1, The Movement for Reform (1948) pp 109 – 110.    [Back]

Note 49    4 Geo 1, c11 provided for transportation for both clergyable and non-clergyable offences if conditionally pardoned.    [Back]

Note 50    J A Froude, History of England (1870) Vol. 3, p 220-221 cited by L. Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume 1, The Movement for Reform (1948) p 161 at note 54.    [Back]

Note 51    See L Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume 1, The Movement for Reform (1948) p 10 for a list of the various offences punishable by death.    [Back]

Note 52    L Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume 1, The Movement for Reform (1948) pp 91-103.    [Back]

Note 53    L Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume 1, The Movement for Reform (1948) p 152.    [Back]

Note 54    L Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume 1, The Movement for Reform (1948) p 160.    [Back]

Note 55    L Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume 1, The Movement for Reform (1948) p 401    [Back]

Note 56    Ibid, at 400.    [Back]

Note 57    L Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume 1, The Movement for Reform (1948) pp405 – 407.    [Back]

Note 58    See generally L. Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume III, The Reform of the Police (1956) chapter 11, pp 315 - 347.    [Back]

Note 59    See generally L. Radzinowicz, A History of English Criminal Law and its Administration from 1750: Volume III, The Reform of the Police (1956) chapter 15, pp 448 - 474.    [Back]

Note 60    See generally T A Critchley A History of Police in England & Wales 900-1966.    [Back]

Note 61    [1707] Kel J 119; 84 ER 1107.    [Back]

Note 62    Ibid, at pp 135-137, 1114 – 1115.    [Back]

Note 63    “The Doctrine of Provocation” (1976) 35 CLJ 292 at p 293-4.    [Back]

Note 64    Provocation and Responsibility (1992) p 25.    [Back]

Note 65    Semini [1949] 1 KB 405.    [Back]

Note 66    Provocation and Responsibility (1992) p 8.    [Back]

Note 67    2 Ld. Raym 1485; 92 ER 465.    [Back]

Note 68    Ibid, at p 1494.    [Back]

Note 69    (1832) 5 C & P 324; 172 ER 995.    [Back]

Note 70    Ibid, at p 325.    [Back]

Note 71    (1837) 8 C&P 115; 173 ER 422.    [Back]

Note 72    Ibid, at p 117.    [Back]

Note 73    Ibid, at pp 118-119.    [Back]

Note 74    (1869) XI Cox CC 336, 338.    [Back]

Note 75    See generally Mancini v DPP [1942] AC 1, Duffy [1949] 1 All ER 932 and McCarthy [1954] 2 QB 105.    [Back]

Note 76    See McCarthy [1954] 2 QB 105 and Bedder [1954] 1 WLR 1119.    [Back]

Note 77    See Report of the Royal Commission on Capital Punishment (1953) Cmd 8932 paras 134 – 135 at pp 49-50.    [Back]

Note 78    J Hostettler, The Politics of Criminal Law Reform in the Nineteenth Century (1992) p 93.    [Back]

Note 79    The defence was not confined to murder.    [Back]

Note 80    This mandatory disposal still applies in respect of offences for which the sentence is fixed by law – murder. For other offences, a wider range of disposals is now available by virtue of the Criminal Procedure (Insanity and Unfitness to Plead) Act 1991, which came into force on 1 January, 1992.    [Back]

Note 81    The requirements for the defence of insanity were, and still are, contained in the M’Naghten Rules. These were derived from M’Naghten’s Case (1843) 10 Cl & F 200; 8 ER 718.    [Back]

Note 82    There has been considerable academic discussion as to whether automatism is a denial that the conduct element of the offence has been committed or rather that the defendant lacked the fault element of the offence.     [Back]

Note 83    The word “involuntary” in the context of offences against the person has three different meanings. In relation to the defendant’s conduct it means “unwilled” or “unconscious”. Such conduct amounts to automatism. In addition, the word is used to describe one of two kinds of manslaughter recognised at common law. Here the word is used in relation to the defendant’s state of mind, not conduct. Finally, the word is used in relation to the specific act of becoming intoxicated. Here it means blameless or non-culpable.    [Back]

Note 84    (1945) 61 TLR 452, 453.    [Back]

Note 85    Hill v Baxter [1958] 1 QB 277, 283.    [Back]

Note 86    Kemp [1957] 1 QB 399.    [Back]

Note 87    See Partial Defences to Murder, Consultation Paper No 173, paras 6.35 and 6.48.    [Back]

Note 88    Perhaps a major area of difference was their respective approaches to industry, and in particular the issue of nationalisation.    [Back]

Note 89    Appeal dismissed, Bentley, The Times 14 January 1953.    [Back]

Note 90    [2001] Cr App R 21.    [Back]

Note 91    [2003] EWCA Crim 3930. See also EWCA Crim 3556.    [Back]

Note 92    (1953) Cmd 8932.     [Back]

Note 93    Para 374.    [Back]

Note 94    Para 377.    [Back]

Note 95    Para 385.    [Back]

Note 96    Para 413.    [Back]

Note 97    Paras 313 and 333. Mr Fox-Andrews dissented.    [Back]

Note 98    Dame Florence Hancock, Mr Macdonald and Mr Radzinowicz dissented from this conclusion.    [Back]

Note 99    Including murder in the course or furtherance of theft; murder by shooting or explosion; murder in the course of avoiding lawful arrest or escaping legal custody; murder of a police officer acting in the execution of his duty; murder by a prisoner of a prison officer acting in the execution of his duty and repeated or multiple murders.    [Back]

Note 100    The death penalty for all murders was abolished by the Murder (Abolition of Death Penalty) Act 1965, section 1.    [Back]

Note 101    Hansard (HC) 15 November 1956, vol 560, col 1154. (emphasis added)    [Back]

Note 102    Hansard (HC) 15 November 1956, vol 560, col 1213.    [Back]

Note 103    (1957) Cmnd 169.    [Back]

Note 104    Ibid, at para 67.    [Back]