As part of its response to Clare Wade KC’s Domestic Homicide Sentencing Review, the Government has asked the Law Commission to review the use of defences in domestic homicide cases.
In 2004 the Law Commission made recommendations for reform of the partial defences to murder including provocation (now loss of control) and diminished responsibility. That project reflected the complex nature, and great import to society, of the criminal justice response to homicide offences and defences.
Despite reform to partial defences to murder intended to recognise the context in which a victim of domestic abuse kills their abuser, there remain questions about whether the operation of defences to murder in this context, from police investigation to trial, achieves just outcomes. Similarly to the work the Commission undertook in their related earlier project on Partial Defences to Murder, they will:
- consult with the public, criminal justice practitioners, academics, those who work with victims of domestic abuse, those who work with victims’ families, and parliamentarians;
- consider evidence of public attitudes;
- reflect on evidence of individual cases including the sample of cases considered in the Wade review, relevant case files where available, empirical evidence on the functioning of individual defences, and qualitative evidence from those directly affected; and
- draw on evidence from research and from the experiences of other jurisdictions in reforming their law.
The terms of reference for their project are available here
In this project they will consider the use of defences in domestic homicide in light of modern understandings of the effects of domestic abuse on victims. This will include consideration of the impact of different victims’ experience in this context, including but not limited to their culture, religion, sexuality, disability, and migrant status. For example, they will consider where relevant, the use of defences in domestic homicide in the context of so-called honour-based abuse.
The terms of reference clarify that the project will consider the operation of the applicable rules of evidence, procedure, and ways that the defences are considered from the beginning of the police investigation up to and including at trial. This will include for example, disclosure of abuse during the criminal justice process, the use of expert evidence, and judicial directions.
The Law Commission set out in their terms of reference that this project will consider the current defences to murder, and also arguments that the defendant did not possess the requisite intent for murder (intention to cause death or grievous bodily harm).
The so-called “rough sex defence” is also an example of an argument advanced in cases of murder, where the defendant argues that they lack the requisite intent for murder. Like other such arguments as to lack of intent, the so-called “rough sex defence” is not a defence to murder – it is a denial of an element of the offence of murder. Therefore this project will only consider the so-called “rough sex defence” where it arises in the context of domestic homicide cases where there was domestic abuse. This project will not consider it more generally, or in respect of any other context in which it may be raised.
The Law Commission will begin by undertaking initial research and scoping. The substantive work towards a consultation on provisional proposals for reform will start in Spring 2024.