Murder and Manslaughter problem question

Written by Kristina Evans (Nov 2005)

Introduction

In this essay I am going to discuss Sandra’s case and advise her of a defence that would be suitable. As she has been charged with murder it would be possible to reduce her sentence to manslaughter if she had a suitable defence. In this case she could use provocation and diminished responsibility. I will go on to examine each of these and advise her of which one would be the best course of action.

Provocation

It would be possible for Sandra to plead provocation. Provocation exists at common law, however the common law rule has been modified by s3 Homocide Act 1957 which states:

'Where, on a charge of murder, there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury.’

Under the Homicide Act 1957 there are three elements, which have to be fulfilled for a plea of provocation to succeed. These are that there must be evidence that the defendant was provoked, he must then have lost his self control and the Jury must be satisfied that a reasonable man would have acted in a similar way. I will now discuss these three elements.

Evidence that Sandra was provoked

Provocation can arise from things done or said, under the Homicide Act. Sandra has been provoked as she was told she ‘has always been a hopeless wife and an inadequate mother’ which was something ‘said’. She has also been slapped across the face which was something ‘done’. Sandra may also be successful in claiming that the domestic violence provoked her, as the evidence of provocation is not confined to the last Act or word before the killing.

 In the case of Doughty 1986 the defendant had been convicted of murdering his 19-day-old son after he would not stop crying. The Court of Appeal surprisingly held that even the continuous crying of a very young baby should have been considered by the Jury as a possible provoking event, even though it was obviously not directed at the accused. Therefore it would be up to the Jury to decide whether Peter calling Sandra a ‘hopeless wife’ and an ‘inadequate mother’ and slapping her across the face was enough to suggest that Sandra was provoked into her response.

In the case of Pearson 1992 the ill treatment meted out over a period of eight years by the victim, had not been principally directed at the defendant but towards his brother. The Court of Appeal decided that this was still an act of provocation, which the accused could use in his defence after he killed his father with a sledgehammer.

If the accused himself has started the trouble then this is known as ‘self induced provocation.’ A case illustrating this is Johnson 1989. The accused started an argument in a night-club during which he made threats against the victim and his woman friend. A fight developed in the course of which the victim was fatally stabbed. The accused alleged that he was provoked by the fear of being ‘glassed’ by the victim but the judge declined to put this matter before the Jury. The Court of Appeal allowed the appeal despite the fact that the defendant had started the trouble and he was carrying a knife.

Did Sandra lose her self-control?

It is not enough for Sandra to show that she was provoked. She must show that the provocation affected her so strongly that she then lost her self-control. This is obviously a subjective test. This loss does not require the defendant to completely lose control to the point that they are no longer aware of their actions as then they would have not have intended to kill and thus not be guilty of murder. In the case or Richens 1993 the Court of Appeal confirmed this stating that ‘it is not necessary to show that there was a complete loss of control, in the sense that the defendant did not know what he was doing, or was not able to stop himself acting in the way he did. It was sufficient that the defendant was unable to restrain himself.’

When looking at whether Sandra had lost her self-control, the direction of Delvin J in the case of Duffy 1949 needs to be considered. The definition in Duffy allows the defence to be used where the provoking event has caused:

‘A sudden and temporary loss of self-control rendering the accused so subject to passion as to make him or her, for the moment, not master of his mind.’

The words ‘sudden, and temporary loss of self-control’ have caused problems where the accused has waited some time before acting. The Courts are less inclined to believe that a person has lost their self-control if they have had a ‘cooling off’ period and then committed the offence. This has been the situation in the cases of Duffy 1949 ,Thornton 1996 and Ahluwahlia 1992, all cases concerning ‘battered wives.’

In the case of Duffy 1949, the abused wife, after a quarrel, left the room, changed her clothes and then returned with a hammer and a hatchet when her husband was in bed and killed him. As she had a cooling off period her conviction of murder was upheld.

In the case of Thornton 1996 the couple had a very stormy relationship. They both drank heavily and in this state the husband sometimes became violent and abused his wife. On the night in question, after a serious quarrel, Mrs Thornton went into the kitchen, allegedly to find a truncheon to protect her, and when she could not find it she sharpened a kitchen knife instead. She went to the sofa where her husband was asleep and asked him to come to bed and after an acrimonious exchange she plunged the knife in to his stomach. As she sharpened the knife she did lose self control and therefore her murder conviction was upheld. However, in a later appeal the Jury accepted an alternative plea of diminished responsibility and therefore manslaughter replaced murder.

In Ahluwalia 1992 the defendant who had been subjected to an arranged marriage had suffered serious physical abuse over the years by her unfaithful husband. At the time of the killing she had been threatened with a further beating in the morning. She therefore waited until her husband was asleep and poured petrol onto him and set fire to him. The victim later died from his injuries. Once again it was difficult to prove a sudden loss of self-control so then defendant was convicted of murder. However this was changed to manslaughter after a plea of diminished responsibility.

In Sandra’s case there was only a fraction of a time gap between when she was last provoked and when she responded. She is slapped across the face and then grabs a marble statuette from the mantle shelf next to her. Therefore there would not be a problem with this element of this element of provocation.

A reasonable man would have acted in a similar way

This last point involves examining the behaviour of the accused and assessing the extent of their reaction to the provocation. The Jury will then decide if a reasonable man would have acted in a similar way. This purely objective test of the reasonable man was modified by the House of Lords in DPP v Camplin 1978. Their Lordships felt that a better test should be: ‘Would a reasonable man, or in this case boy, with the same characteristics as the accused have acted in this way?’

In this case a 15-year-old boy had been drinking and went with a middle aged man to the latter’s house, where the boy was forcibly subjected to a homosexual assault. When he expressed shame at what had happened, the older man was alleged to have laughed and taunted him. The boy then attacked him with a heavy chipatti pan and killed him. He was convicted of murder after a direction from the judge about the qualities of a reasonable man. The House of Lords decided that the fact that the boy was drunk should not be taken into account but his young age should be.

In the case of Newell 1980 the accused killed the victim by hitting him with a very heavy ashtray after the friend made homosexual advances to him. The defendant was an alcoholic, who, at the time was recovering from a drug overdose. He was in a bad emotional state because his girlfriend had recently left him. It was said at the Court of Appeal that the effects of drinking and drugs should not be taken into consideration and therefore his appeal against the murder conviction was unsuccessful.

In the case of Smith 1998 the defendant and the victim were long-standing drinking partners and alcoholics. During an argument of the alleged theft of his tools Smith became increasingly furious of his friends denial of involvement. He then seized a kitchen knife and stabbed his friend to death. At his trial he put forward defences of both diminished responsibility and provocation. He claimed that he was suffering from depression but the Judge convicted him of murder. The Court of Appeal disagreed with this and substituted a verdict for manslaughter.

In Sandra’s case we have to consider if a reasonable person with the same characteristics of Sandra would have acted in the same way that she did. Sandra was placed on medication by her doctor as the quarrels were making her depressed. A depressed person may do things that a reasonable person may not. Therefore if Sandra was not depressed she may have acted differently to the way she acted when she was depressed. So Sandra’s depression could be taken as a characteristic and her provocation defence will be made stronger as her depression may be taken into account when the Jury considers what could reasonably be expected of her in the situation. 

Diminished responsibility

If,for any reason, the defence of provocation fails then there would be the possibility of Sandra putting forward a plea of Diminished Responsibility. If Sandra was successful with this defence she would not get a life sentence, but a lesser one at the judges discretion.

S2 Homicide Act 1957 states that a person may be found guilty of the lesser offence of voluntary manslaughter, rather than murder, if he was suffering from an abnormality of mind caused by an inside source that substantially affected his responsibility for his actions. The precise wording is to be found in s2 (1). This states:

‘Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing.’

S2 (2) puts the burden of proof on the defendant. He will have to prove his abnormality of mind on a balance of probabilities and generally he must be the one to raise the defence. There are three requirements that must be met for a defence of diminished responsibility to succeed. I will now discuss these.

Sandra must have an abnormality of mind

It is up to the jury to decide whether Sandra is suffering from a state of mind that a reasonable man would find abnormal. However this has to be backed up by medial evidence. In the case of Bryne 1960 the defendant who was a sexual psychopath who suffered violent, perverted sexual desires, which he found difficult, if not impossible to control strangled and mutilated a girl in a youth hostel. After his murder conviction was replaced with one of manslaughter in the Court of Appeal Lord Parker CJ said that the term ‘abnormality of mind’ included:

‘A lack of ability to form a rational judgement or exercise the necessary willpower to control ones acts.’

In the case of Hobson 1998 the Court of Appeal held that the cumulative effects of ‘battered woman’s syndrome’ could lead to an abnormality of mind, thus affording a defence to a charge of murder if the abused woman turned on her tormentor and killed him. Sandra could use this because she had been hit by Peter before and he had slapped her on the night in question.

The abnormality must arise from an inside source

The abnormality of mind must be caused by ‘arrested or retarded development of mind or any inherent causes or induced by disease or injury.’ Therefore the abnormality must have been caused by an inside source, i.e. some malfunctioning of the mind. Outside sources, such as drinking and drug taking will not be sufficient. However, if the defendant has an abnormality caused by intoxication then this could be seen as an abnormality of the mind.

Inthe case of Tandy 1989 the female defendant was an alcoholic who one day drank alcohol which was more potent. She strangled her 11-year-old daughter who she had been arguing with. She was convicted of murder. The Court of Appeal upheld the conviction stating that, for the defence to succeed, it was necessary for the abnormality of mind to be induced by alcoholism.

In the case of O’Connell 1997 a similar approach was taken in relation to a prescribed drug called Halcion which was alleged to have adversely affected the mind of the defendant. It was noted that the drug was absorbed rapidly into the system and the effects wore off very quickly. The Court of Appeal took the view that the effects were similar to alcohol and so could not come under the definition of an abnormality of mind. A different decision was made in the case of  Sanderson 1994 because the Court of Appeal believed that the mental illness might well have existed before the cocaine abuse started.

Both Seers 1984, where the defendant who suffered a depressive illness killed and Gittens 1984, where the defendant who also suffered from depression, one night after consuming a large amount of drink and anti depressant pills clubbed his wife to death and strangled his step daughter, used depression as their defence of Diminished Responsibility and had their murder convictions replaced by manslaughter.

In the case of Dietschmann 2003 the defendant admitted that he had punched and kicked the victim, thus causing his death. He had been heavily intoxicated at the time but was also held to have an abnormality of the mind. The Jury concluded that the defendant would not have murdered if he had not been drinking and so convicted him of murder.

Sandra’s abnormality of mind could have been caused by Peter often hitting her or by her depression. In Smith 1982 and Reynolds 1988 the defence of diminished responsibility was allowed for women suffering postmenstrual tension, along with Seers and Gittens 1984 where chronic depression also sufficed.

The abnormality must have substantially affected Sandra’s mental responsibility for her actions

In this part Sandra must show that her abnormality of mind was greater than it would be, experienced by an ordinary person. The impairment need not be total but must be more than trivial, as stated in Simcox 1964. Medical evidence is also needed to support this contention. The Jury will normally accept this evidence but if there is other evidence to suggest a more calculated killing then they do not have to. This was the case in Saunders 1991. If strong medical evidence was provided and the Jury ignored it the Court of Appeal could quash the conviction and replace one of manslaughter as per Matheson 1958 where it was held that in such circumstances the court was bound to say that the conviction was unsafe.

In the case of Campbell 1997, the defendant succeeded when pleading diminished responsibility in his second appeal. He had picked up a female hitchhiker and when she refused his advances he attacked her. When he discovered she was not dead, he tried to strangle he and eventually hit her across the throat with a hockey stick. He maintained that he was suffering from diminished responsibility caused by his epilepsy and frontal lobe damage. At his second appeal the Court heard the evidence of two eminent psychiatrists in this field. Lord Bingham CJ stated:

‘Having studied the available evidence of what the appellant did and said at the time, both doctors were of the clear opinion that at the time of the killing the appellant had been suffering an abnormality of mind of such significance as seriously to diminish his responsibility for the act he carried out.’

Therefore a retrial was ordered although it was made very clear that this could not lead to an acquittal, only a change form murder to manslaughter. 

Sandra was suffering from depression as her doctor has put her on medication. Therefore it may be possible to retrieve medical evidence to prove that Sandra was suffering from an abnormality of mind of such significance as seriously to diminish her responsibility for the act she carried out.

Conclusion

In conclusion, my advice to Sandra would be to use both the defences, provocation and diminished responsibility as the circumstances support both defences. However I believe that she would be more likely to succeed with provocation because all three elements are there. She has evidence that she was provoked, for example, Peter’s remarks about her being a hopeless wife and an inadequate mother. She lost her self-control as a result of the provocative act and she could apply the Duffy test. The Jury would also very likely be satisfied that a reasonable man might have acted in a similar way.

With diminished responsibility it may be possible that she cannot retrieve any medical evidence from her doctor explaining that she had an abnormality of the mind and if this were the case her plea would fail. However, she has been to see her doctor about her depression and so this is unlikely. Sandra has an abnormality of mind (her depression), it has arisen from an inside source and it has substantially affected her mental responsibility for her actions.

If Sandra had waited until Peter had fallen asleep in his chair and then killed him with the statuette then my advice would be different. This is because she would not fulfil the Duffy test, as her act would not have been a ‘sudden and temporary loss of self- control’. Instead she would have had a cooling off period and therefore she could not plead provocation. Sandra could however, rely on ‘Battered woman’s syndrome’ as peter used to hit her but also a plea of diminished responsibility in relation to her depression. It would be useful for her to seek a medical expert to testify on her behalf at the trial. Therefore by looking at cases such as Thornton 1996 and Ahluwalia 1992 it is likely that Sandra will not be faced with a murder conviction but one of manslaughter instead.

Cases

Doughty 1986

Pearson 1992

Johnson 1989

Richens 1993

Duffy 1949

Thornton 1996

Ahluwalia 1992

DPP v Camplin 1978

Newell 1980

Smith 1998

Bryne 1960

Hobson 1998

Tandy 1989

O’Connell 1997

Sanderson 1994

Seers 1984

Gittens 1984

Dietschmann 2003

Smith 1982

Reynolds 1988

Simcox 1964

Saunders 1991

Matheson 1958

Campbell 1997