The partial defences to homicide - particularly diminished responsibility (DR) - could be replaced by a specific offence so as to avoid wrongly labelling people as murderers, the Law Society has suggested.

In its generally positive response to the Law Commission's consultation on reforming the law of homicide, the criminal law committee sought to distinguish the partial defences of provocation and DR - even though they are often pleaded together - on the basis that provocation still requires an intention to kill.


'Conversely, diminished responsibility reduces the defendant's culpability, not by explaining the motive for the killing, but by removing the mental element altogether or by substantially reducing it,' it said.


Describing the current law as a mess, the commission recommended a three-tier system: in the top tier would be cases where there is an intention to kill; the second tier would include cases of killing through reckless indifference to causing death and intention to do serious harm but not to kill; in the third tier (manslaughter) would be cases of killing by gross negligence or intention to cause harm but not serious harm.


The committee said while there might be circumstances where someone relying on the provocation defence should be convicted of second-degree murder, it might equally be right to convict someone relying on DR of a third-degree offence.


The response said: 'It was felt that there might be cases where it was inappropriate for someone relying on the defence of diminished responsibility to be labelled a "murderer". One possible way around this would simply be to remove certain partial defence cases (particularly diminished responsibility) and create a new offence - for example, unlawful killing by reason of diminished responsibility - which could be placed on the ladder under "other offences", along with offences such as infanticide (conceivably diminished responsibility in any event) and "complicity in suicide" etc.'


When it came to euthanasia, the committee backed the current law - that only a finding of DR can reduce the offence from first-degree murder. 'Whether it is right or not right that the victim's consent is irrelevant to the degree of killing is beyond the scope of this consultation but clearly overdue for full debate,' it added.