Defences for victims of domestic abuse who kill their abusers

Current project status

• Initiation: Could include discussing scope and terms of reference with lead Government Department
• Pre-consultation: Could include approaching interest groups and specialists, producing scoping and issues papers, finalising terms of project
• Consultation: Likely to include consultation events and paper, making provisional proposals for comment
• Policy development: Will include analysis of consultation responses. Could include further issues papers and consultation on draft Bill
• Reported: Usually recommendations for law reform but can be advice to government, scoping report or other recommendations

The problem

As part of its response to Clare Wade KC’s Domestic Homicide Sentencing Review, the Government 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.

The Government have now asked the Law Commission to conduct a full review of homicide law. We are therefore now able to consider more holistically the way that the law operates when a victim of domestic abuse kills their abuser. As part of the broader homicide project we will consider the homicide offences for this group of defendants. We will continue our work on defences for victims of abuse who kill their abuser within the umbrella of the homicide project, which will also cover sentencing when such defendants are convicted of murder.

The project

As with all Law Commission projects, our work reviewing defences in this context will use an open, inclusive and evidence-based process. Similarly to the work the Commission undertook in our related earlier project on Partial Defences to Murder, we 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 our review of  defences for victims of abuse who kill their abuser  are available here 

In this work we 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, we 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 we 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.  

Background paper

We have now published a background paper which summarises what we need to understand about victims of domestic abuse who kill their abuser in order to analyse how the law does, and should, apply to this group of defendants.

The paper examines the modern understandings of domestic abuse and how they relate to cases where victims of abuse kill their abuser. The paper also outlines the available data on prevalence and profiles of domestic abuse and domestic homicide and highlights the lack of data on the use of defences in this context.

Next steps

Work on defences for victims of abuse who kill their abuser will continue under the umbrella of the broader homicide project. During this pre-consultation stage we will be undertaking research and engaging with stakeholders to hear views.

Contact

For general enquiries, please contact us by email domestic.homicide@lawcommission.gov.uk