English Reform of Partial Defences to Murder: Lessons for New South Wales

Abstract

The Coroners and Justice Act 2009 (UK) significantly revises the defence of diminished responsibility under English law. It also introduces a new defence of ‘loss of control’, which replaces the common law defence of provocation and creates a defence akin to the plea of excessive self-defence. These major developments have a direct bearing on the law of New South Wales (NSW). The revisions made to the defence of diminished responsibility are of interest because they have borrowed some features of the NSW defence, but created others that are arguably improvements on the NSW provision. With respect to provocation, the new English defence has certain innovative features on the type of provocative conduct that may be legally recognised, and clarifies aspects of the ‘ordinary person’ test. The English defence similar to excessive self-defence is worth examining to see if it affords greater justice to accused persons, such as battered women who kill their abusers, compared to the defence under s 421 of the Crimes Act 1900 (NSW).