The partial defences to murder are under scrutiny as the Law Commission weighs up options for change.

Rachel Rothwell hears calls from lawyers for the punishment to fit the crime

Jane Andrews was jailed two years ago for hitting her sleeping partner over the head with a cricket bat and stabbing him in the chest with a kitchen knife.

In September, the former dresser to Sarah Ferguson had an appeal on grounds of diminished responsibility rejected.

Her case brings the partial defences to murder - diminished responsibility and provocation - into the spotlight just as the Law Commission has published a consultation document on the issue (see [2003] Gazette, 13 November, 4).

The consultation is one of several areas currently exercising the minds of solicitors who act for alleged murderers.

The two partial defences, which reduce a charge of murder to manslaughter, are controversial because they make an allowance for those who kill in a fit of rage, and place some blame on the victim.

Diminished responsibility relies on the mind of the killer being 'impaired by an abnormality', such as extreme anger, at the time of the murder.

Provocation applies where there is a 'sudden and temporary loss of self control' as a result of the victim's actions.

Both defences are generally thought to be more readily available to men than to women, because while it is assumed men are able to kill with a sudden and immediate blow, there is considered often to be a time delay in the case of women who kill - after what may be years of abuse.

Solicitor Harriet Wistrich, who acted for Andrews, is a founder member of the campaign group Justice for Women and an assistant with London firm Birnberg Peirce.

She says: 'The law as it stands is unfair - too many women are getting convicted of murder where there was clearly not a pre-meditated act.

'In Jane's case, we have strong psychiatric evidence in support of diminished responsibility, but the judge felt there were issues around her credibility.

One of the problems with these cases is that victims are too ashamed to reveal the full details of their cases until they have been convicted of murder.

There are some issues which even a change in the law will not help.'

The Law Commission is looking at various options for change.

It has put forward for comment a new partial defence of excessive use of force in self-defence, or even a specifically tailored partial defence for battered women.

This would sanction the pre-emptive use of force in self-defence by those who have suffered a long history of serious abuse, and honestly consider murder to be their only option to prevent future violence towards them.

The only option that the Law Commission has said it does not favour is the retention of the current defences as they stand.

The two partial defences came about as a way of mitigating the harshness of the mandatory life sentence for murder.

While many defence lawyers would like to change the rules relating to partial defences, it is the mandatory life sentence that they would really like to get their hands on.

Mike Mackey is senior partner at Manchester firm Burton Copeland, and was part of the defence team of Sally Clark, the solicitor whose conviction for killing her two children was quashed in the Court of Appeal in January.

He says: 'The law relating to provocation works reasonably well.

But what needs looking at is the mandatory life sentence.

There simply should not be one.

Judges should be trusted to impose a length of time in custody which is appropriate to what has gone on.

But no one wants to deal with this issue because it is too political.'

Robert Rode, a criminal law partner at McCormicks in Leeds, agrees: 'The mandatory sentence in murder cases is a fettering of judicial discretion which is entirely inappropriate.

And I am fervently against politicians having any input into sentencing - they haven't even heard the facts of the case.

There should be a complete range of sentencing options.'

The involvement of politicians in setting the tariff for minimum time to be served has long been a hot issue - in Scotland, they have now been removed from the system - while there are moves to do the same in England and Wales.

Judges would be responsible for setting tariffs, but only within parameters set by Parliament.

Knowing your client will go down for life if convicted is enough to focus the mind of any solicitor.

But when it comes to murder trials, the pressure also comes from other directions.

Ms Clark's trial was one of the most high-profile murder cases in recent times, although she maintained her innocence at all times and did not look to the partial defences.

How did the defence team cope with an aggressive media while still providing Ms Clark with the best defence possible? Mr Mackey says: 'The media attention on Sally escalated following her conviction.

She was called a murderess, and said to be living in a "house of horror".

As a lawyer, it was very hard to deal with.

'This is an adversarial system, and we were doing battle with the Crown Prosecution Service and the police, which both have huge numbers of press relations people.

'After the first appeal, public relations professional Sue Stapely dealt with the media for us, and the coverage gradually began to change.'

The trial of Ian Huntley for the alleged murder of Soham children Holly Wells and Jessica Chapman - currently under way at the Old Bailey - has already illustrated the problems posed by the media in such trials.

The trial judge, Mr Justice Moses, gave explicit and strong warnings to the press to ensure reporting of the case was conducted within strict parameters to retain objectivity.

However, trial by media was not the toughest aspect of Ms Clark's case: 'I think the most difficult murder cases are not the "whodunits?", but the "was anything done?" cases,' says Mr Mackey.

'The real truth is that the burden of proof is reversed in these cases - you have to prove what was responsible if it wasn't you.'

Expert witnesses are often essential to murder trials and much of the solicitor's role can lie in finding specialist witnesses from around the globe.

'We were lucky,' says Mr Mackey, 'as John Batt [consultant at Batt Holden in south London and a Clark family friend] was able to spend a lot of time on the telephone to Florida and Texas.

There are very few experts, but they all correspond with one another.' Expert evidence was essential to Ms Clark's defence.

Handling a client accused of murder is a far cry from representing those charged with petty theft.

The price of failure is higher than for any other crime.

So why do solicitors who have acted on one murder case tend to be so eager to do another? Solicitor Martin Cray, founding partner at Brighton firm Martin Cray & Co, who has acted on 13 murder cases, says: 'The murder cases I have worked on have been by far the most rewarding and exciting work I have ever done.

The cases mostly came to me through the duty solicitor scheme - I have acted on single and double murders and obtained an acquittal on a triple murder.

'Just think how many television series there are about pathologists, detectives and murder cases every night.

Working on a murder case is [as exciting as] that, but times four.'

Mr Cray always visits the actual crime scene and the post-mortem examination.

He says: 'Not all solicitors seem to be aware that they have the right to go to the post-mortem along with their consultant pathologist.

I have taken magistrates, judges and barristers along with me, with the consent of the Home Office.

Many of them find it too much within minutes - it is gory beyond the imagination.

But you can win a case as a result of what you discover, such as marks on the body which support the defence case.

Looking at photographs just isn't the same.'

Murder cases may be professionally rewarding, but the financial rewards are getting slimmer.

Mr Rode says: 'Murder [legal work] is better remunerated than most crime, because practitioners should make an application for a 100% uplift.

But it is still nowhere near private rates.'

Murder cases were more lucrative for solicitors prior to January 2001, when they were able to conduct a 'no case to answer' hearing in the magistrates' court, before a trial reached the Crown Court.

Now the case goes directly to the Crown Court, and though a solicitor may still contest the validity of the case to answer, preparation costs for this are included in the fees of the main trial.

Solicitors are not paid to read the documents twice.

The Law Commission has set a deadline of January 2004 for responses to its consultation on partial defences to murder.

It will attempt to put forward a fair solution, which balances punishment for the most serious offence of all with proper regard to mitigating factors and fairness between the sexes.

Whether or not it manages to achieve this objective, murder defence work will remain one of the most gripping fields of work in which a solicitor can be involved.