Deborah Orr: Face the facts: men are more prone to violence than women

The Government is still aware that anger can on rare occasions be a legitimate response to abuse

What is murder? It is a much more complicated question than it may seem at first to be. The Law Commission, when it was asked by the Government to review certain aspects of the 1957 Homicide Act, was not asked to return to first principles, but just to look at partial defences, particularly pertaining to domestic violence. In its 2004 consultation document, the Commission expressed great disappointment at the failure to grasp this much-needed opportunity.

The Commission itself does not believe that the recommendations it made to the Government, some of which have in turn been put out to consultation this week by the Ministry of Justice, can do very much to clear up "the mess" it perceives that British homicide law has become. It even goes as far as to say that in a relative vacuum, it is "pessimistic about the possibility of devising a formulation for the reform of provocation legislation addressing domestic violence". Still, it has done its best, and a number of its necessarily limited suggestions have been accepted by the Government.

Yesterday's hostile front-page headlines, excoriating the Government over the content of the proposed changes in its consultation document, Murder, Manslaughter and Infanticide: Proposals For Reform Of The Law, must surely have prompted the Government to experience a little of that pessimism themselves. "Go Soft on the Killer Wives," the Daily Mail shouted. Theirs was not, I think we can assume, an instruction. Certainly, it was by no means an instructive contribution to an important, highly complex and deeply emotive debate.

The present homicide law, the Commission suggested, "reflects a fierce tension" between two views. The first is the purist view, which insists that: "Murder is a uniquely heinous crime and that a mandatory sentence of life imprisonment is a proper and justifiable expression of public repugnance towards anyone who has intentionally taken the life of another." It is this view which dictates that a verdict of murder must always attract a life sentence.

The second is a more realistic view, which counsels that: "Murder, as every practitioner of the law knows, though often described as one of the utmost heinousness, is not in fact necessarily so, but consists in a whole bundle of offences of vastly differing degrees of culpability, ranging from brutal, cynical and repeated offences like the so-called Moors murders to the almost venial, if objectively immoral, 'mercy killing' of a beloved partner." It is this view that leads the law to assemble "partial defences", reducing murder charges to manslaughter charges when it is felt important that mitigating circumstances should be applied, and the mandatory life sentence should not be handed down.

The mitigating circumstances can themselves be unfair or confusing. There is a widespread belief in Britain that murder is "unlawful killing, with malice aforethought". Yet, as the Commission pointed out, a person may still be guilty of murder, in the eyes of the law, if, for all sorts of reasons, a homicide was committed. A person does not have to have intended to kill, nor to have acted in a premeditated way, to have committed murder. The definition of murder is not, and cannot be, as simple as that.

The Commission actually sought to differentiate between the cases in which "the culpability of the killer was sufficiently reduced so as not to merit the description of murder and those cases where there was no such reduced culpability". It could not come up with a way of doing so, which is why in so many other countries, "degrees" of murder have instead been formulated.

What British law is presently asked to decide, case by case, and under a strict set of rules, is whether the trigger for the violence or the killing is something that may have similarly provoked any reasonable person who found themselves in the position of the defendant, and under the same pressures or conditions as the defendant.

If this can be shown, then the reduced charge of manslaughter will be accepted, not because anyone really believes that murder under such circumstances is not really murder, but simply because the mandatory life sentence is therefore avoided. This is very confusing, not least to the loved ones of victims, who sometimes start the legal process in the belief that their family member or friend has been murdered, only to discover by the end that this perception – to all but them – has altered very greatly.

Everyone should be concerned about this piecemeal application of the legislation around this most terminally bleak of crimes. Unfortunately, the problem with the narrow scope of the Law Commission's report is that it invites suspicion that the Government is concerned with perverse results only in certain cases.

The proposed alterations to the definition of provocation has ushered in the suggestion that the law is being manipulated so that it favours women who kill their male partners, and discriminates against men who kill their female partners. This reading of the proposals is horribly, hatefully wrong.

Much grumbling has ensued, for example, at the removal of the partial defence of infidelity. It is hard to imagine why this should be. It is not reasonable for either a man or a woman to kill an unfaithful partner, however upsetting they might consider the betrayal to be. "Discrimination" is only perceived because this is a defence used by men who have killed their partners much more often than by women who have done the same. The Government's concern is that in the past the law has been a bit too quick to sympathise with "those who kill in anger" and this is one example of a provocation that has been in the past too readily accepted.

Yet the Law Commission – and the Government – is still aware that anger can on rare occasions be a legitimate and comprehensible response to ongoing abuse. Again, both men and women are capable of succumbing, under extraordinary circumstances, to moments of loss of control inspired by long-term and recurring events. This human propensity is acknowledged in the suggestion that a "slow burn" pattern of ongoing abuse might reasonably be considered as a mitigating circumstance in some cases of murder. It is this clause that has been interpreted as an exhortation to "go soft on the killer wives".

The proposed changes are being interpreted as discriminatory simply because men kill their partners much more often than women do, often as a part of a violent pattern. The fact is that if a man has committed murder under the duress of "slow burn" provocation, then he too is less likely than in the past to serve a mandatory life sentence for doing so under the terms of the proposed legislation. This is a wholly positive thing.

The Government has been more overtly prescriptive than it needed to be, in flagging its specific concerns about domestic violence. Legal professionals are aware already that the prosecution of murder is already more fraught with difficulty in this arena than almost any other. But the sense of imbalance, I'm afraid, is a false one, reflecting no more than this uncomfortable fact: Men are more likely to commit unprovoked fatal violence against each other and against women, than women are. That's all there is to it.

d.orr@independent.co.uk