Written by Paul Gomm (Nov 2005)

Introduction

Within this essay I will discuss the possible pleas which Sandra could place before the Courts. I will examine the different sentences which could be laid down upon her and relate this to the facts of the case and other relevant cases. I will begin partly to examine the charge before her, that of murder, and will then raise the possible plea of manslaughter and the defences under the Homicide Act 1957 which allow for the plea of manslaughter to be made. I will also examine the elements within these defences and the relevant case law attached to them.
Murder

The crime of murder is a common law offence and requires “the unlawful killing of a human being under the Queens Peace, with malice aforethought”. Malice aforethought implies that the accused must have the intention to cause death or Grievous Bodily Harm (GBH). GBH is a term used to describe serious injury or harm. This was defined under Cunningham 1982 and Saunders 1985. Under the case of Smith 1961 the word “really” was placed before serious harm however this was modified in Saunders.
If Sandra is too be convicted of Murder then she will automatically receive a mandatory life sentence. It will be up to the judge’s discretion to the length of sentence and she may be given a lesser sentence due to the circumstances surrounding the facts of the case. However Sandra would still only be released upon life licence which could be revoked when necessary.
Since there are defences which could reduce the sentence of murder down to that of manslaughter I feel that it would be better dismiss the crime of murder and opt for the defences under the Homicide Act 1957 to reduce the crime down to that of Manslaughter.
Manslaughter

The crime of Voluntary Manslaughter can be found under the Homicide Act 1957. It states that manslaughter is “the unlawful killing with malice aforethought but reduced to manslaughter by the Homicide Act 1957 -S2, 3, and 4 in the cases of Diminished Responsibility, Provocation and The Survivor of a Suicide Pact.” In these case the law has acknowledged that even though the defendant has the mens rea and actus reus of murder, he or she does not deserve the label of “murderer” as specific facts will indicate that a defence plea can be given.
In this case the Defence of The Survivor of a Suicide Pact will not succeed as if we look at the case facts we become aware that neither the victim nor the defendant attempted to commit suicide and neither had agreed to the actions. There is also a possible defence of Insanity however this is a narrower defence and there must be strong medical evidence to suggest that the defendant is insane. The defence of Diminished Responsibility covers this area with a much wider burden of proof and therefore I will dismiss the plea of insanity. The other possible defence is that of Self Defence, which could be pleaded however this is much harder to prove. Firstly, Sandra would need to show that she was defending herself from an imminent attack. The case facts suggest that the attack had already taken place and that there is no evidence that another imminent attack was about to occur. Secondly, the prosecution has advantage of being able to raise the point that Sandra has had the opportunity to escape from any prospective attacks and finish her marriage to Peter. Therefore they can argue that the action of violence which killed Peter was not necessary.
Therefore I will dismiss the point of arguing the defence of Self Defence. A defence under diminished responsibility would be easier to argue.
Firstly, however, I shall consider the possible defence of Provocation and the three elements surrounding it.
Provocation

This defence is covered under Section 3 of the Homicide Act 1957. The concept of provocation has 3 broad views attached to it. The first is that of the “pure excuse” view. The defendant has lost self control and his actions are the result of this. They have been provoked and have killed in the heat of the moment. The second is the “justification” view. This is argued when the defendant was partially justified for their actions. There was some reasoning to what the defendant did, even though their actions may not be fully justified. The third view is that of the “reasonable excuse” view and this is the middle ground between these two views. It accepts that the defendant was not in full control of their behaviour but this must have resulted in loss of self control.
As mentioned before to allow for Sandra to argue the defence of provocation, there must be three elements which must all be proved.
The First Element: There has to be Evidence of Provocation (things said or done)

There must have been something said or done which caused the defendant to lode his or her self control. This must be evident in order to determine whether the defendant’s actions were justified. In Sandra’s case we can argue upon the fact that the frequent abuse was the one of the first stages of provocation, however Peter’s act of slapping Sandra and criticising her upon the grounds that she is a “hopeless wife and an inadequate mother”. This has caused the provocation. Under the Homicide Act 1957 it clearly states that:

“Where there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together)”

This part of the statute clearly states that provocation can occur from words or actions and that they can be done at the same time. Therefore the facts of the case are clear evidence of provocation. Overall however it is up to jury to make the decision of whether the act was provocative and therefore the judge will often take this general view. However I am of no doubt that in this case the jury would accept that a provocative act has occurred. The concept of provocative acts is wide and can be seen in the case of Doughty 1986. In the case of Doughty 1986 the Court of Appeal decided that “even the continuous crying of a young baby” should be considered as a provocative act which the jury must take into account. It did not matter that the act was not directed at the defendant. Therefore under the ruling established in this case the concept of provocative acts is wide and the conduct of Peter would almost certainly be considered under this ruling.
There are limitations to the term however. This was seen in the case of Acott 1997 where it was decided that even though the victim had been savagely attacked, perhaps suggesting provocation, there was no hard evidence to allow for the defence to stand. Another example which can considered is that under section 3 provocation could not be some naturally occurring act.
Another point which should be considered is that of self-induced provocation as seen in the case of Johnson 1989. In this case the accused had started an argument with the victim and his woman friend, and had at the time made threats against the woman. A fight then occurred and the accused stabbed the victim with a knife. The victim had been using a broken bottle as a weapon during the fight. The victim claimed that he was provoked out of fear of being “glassed” by the victim. However, when he placed this forward to the judge, the judge declined to allow provocation to go forth to the jury, even though it is up to the jury to decide whether provocation has occurred. The defendant appealed against this point and the appeal was allowed. However when examining the facts it does not appear that self induced provocation has occurred, although when examining closer we can see that the facts state that “they begin an argument”. If the defence were to raise this point then they may be able to argue that there was also an element of self-induced provocation but only if it is shown that it was Sandra who started the argument.
Therefore it is evident that there is evidence that provocation has occurred, however the other two elements are still required to be fulfilled and I shall now move on to examine the second element of provocation.
The Second Element: The Defendant must have had a “Sudden and Temporary Loss of Self Control”

This second element is crucial to provocation and must be proved to allow for the defence to succeed. The defendant, and not the prosecution, must show that the provocation so strongly affected them that it was enough to make them lose their self control.
The main theory surrounding the loss of control is outlined in the case of Duffy 1949 by Lord Delvin. Even though the Homicide Act 1957 S3 placed changes on provocation, this definition still remains the same today. Lord Delvin said that the defence of provocation can be used when:

“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 the master of his mind”

In the case of Duffy 1949 the defendant was an abused wife who, after a quarrel with her husband, left the room and changed her clothing. She returned to the room with a hammer and a hatchet and waited for her husband to go to bed. When he was in bed and asleep she killed him using the weapons. Within this case Lord Delvin looked at the facts and decided that the appeal could not succeed as her actions did not fall inside the criteria of a “sudden and temporary loss of self control”. He held that the defendant had had what the courts call “a cooling-off period” and that therefore they could no longer have had “a sudden and temporary loss of self control”. Delvin delivered this statement when he said that:

“Circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self control, which is the essence of provocation.”

Therefore Delvin recognized that if a person has had time to consider and develop a notion of revenge they have no longer lost self control in a sudden motion and therefore cannot fulfil the notion of provocation.
When examining the facts however it is evident that Sandra has had a sudden and temporary loss of self control. She has been “slapped” across the face and verbally humiliated and has reacted in a sudden and temporarily way and killed Peter in “the heat of the moment”.
There are similar cases in which woman have killed their husbands who have often been abusive. However we must consider whether the result would have been different if Sandra had killed Peter whilst he was asleep.
There are a number of cases regarding this point and this can be seen in the case of Duffy 1949 and Ahluwalia 1992. Duffy has been discussed above, but I shall examine the 1992 case of Ahluwalia. In Ahluwalia, the defendant was a wife who was frequently abused by her husband and this abuse was often serious and physical. Her husband threatened her shortly before he went to bed and told her that she would face a further beating in the morning. Ahluwalia waited until her husband was asleep, and then poured petrol over him and the bed and set alight to it. The husband was killed due to his injuries. The defendant claimed provocation but her defence was rejected. She had not had a sudden and temporary loss of self control as laid down in the Duffy test 1949, but had instead had time to cool off. However the Court of Appeal did recognise that provocation could occur over long periods of time and that a “slow burn effect” may occur whereby it takes time for the defendant to “snap”.
However the defendant did manage a successful appeal later on upon the claim of diminished responsibility and the claim of “battered woman’s syndrome”.
When examining these point it would become aware that the claim of provocation would not be easy to succeed had she killed Peter whilst he was asleep. However this is not the facts of the case and therefore under our evidence Sandra did suffer a sudden and temporary loss of self control and can therefore fulfil the second element of the defence of Provocation.
The Third Element: The Reasonable Person Requirement

The final point required for the defence of Provocation to succeed involves the analysis of the defendants behaviour and the assessment of their reaction to the provocation. The jury will then look at this evidence and decide whether a reasonable man (under the Interpretation Act man applies to woman and vice versa) would have reacted in the same or a similar way.
The original definition of a reasonable man was an adult of normal temperament and attributes. However when looking at this test we become aware that it is an objective test (like that of Caldwell) and therefore looks at the defendant through the eyes of another person, without considering any other specific aspects of the accused which might have effected the way they acted. Therefore if a person is suffering from alcoholism, this test fails to recognise that a person suffering from the same disorder may have reacted the same way. Instead it looks at the way a normal person not suffering from the disorder would have reacted.
This test however was changed in the cases of Camplin 1978 and Smith (Morgan) 2003. The cases recognised that a more subjective test was needed and therefore now the reasonable person will be considered to be someone “sharing similar characteristics to the accused”. Therefore the courts will look at both the defendants age, sex, and characteristics relating to mental and physical attributes. Therefore in the scenario used above a person suffering from alcoholism will be compared to somebody suffering from a similar condition. A person who is of a young age, will be considered with someone of an age range closer to theirs instead of an adult. This was seen in the case of Camplin.
In DPP v Camplin 1978 a young boy of the age of 15 had been forcibly subjected to a homosexual act by a middle aged man whom with he had been drinking. The victim had taunted and laughed at the defendant when he had expressed his shame and disgust at what had occurred. This provoked the defendant, causing him to lash out and attack the man using a heavy pan. The man was killed of his injuries. The judge within the trial directed the jury using the term a reasonable man and referring to the qualities and therefore the boy was convicted, but appealed. When the case reached the House of Lords they examined the points and viewed that certain “characteristics” of the boy should be taken into account, the main one being his age. They disregarded other characteristics such as that of his intoxication and his appeal was successful.
One point helping Sandra is that in the facts of the case it states that she was a depressive and that she had been placed on medication by her doctor to help relieve this depression. If age and sex can be considered, then metal characteristics such as this must also be taken into account. There are three cases which would help Sandra in regard to this. These case are; McGregor 1962, Newell 1980 and Smith (Morgan) 2000. I will now examine these cases in regard to Sandra’s case.
In the case of McGregor a New Zealand Court decided that certain medical characteristics could be taken into account when considering what a reasonable person would have done. Therefore in Sandra’s case her depressiveness could be considered within the case. The case of Newell is important as it allowed for further characteristics to be considered when deciding upon the qualities of a reasonable person. Therefore further characteristics of Sandra could be considered.
The case of Smith (Morgan) 2000, however is he most important to consider within Sandra’s case. In this case the point of Depression was actually brought up as a characteristic of the defendant.
In Smith, the defendant was an alcoholic suffering from depression. He had had an argument with a fellow alcoholic over the disappearance of some tools. In the argument, Smith seized a knife and stabbed the victim, killing him. Smith claimed both provocation and diminished responsibility and argued further that he was suffering from depression and that this had contributed to his ability of self control. However the judge decided that mental impairment could not be used to justify a reasonable persons loss of self control and therefore he was found guilty of murder. However he appealed to the House of Lords and the appeal was successful. They viewed that the effect of the depression upon the defendant was material and that it should be considered when deciding whether a reasonable person would have acted the same. They did state though that it could not be an excuse for the behaviour and it was not enough to say that “I am a depressive, therefore I cannot exercise self control”.
This case was also reaffirmed by the case of Weller 2003 and therefore places the subjective test at the centre of the reasonable person concept.
For Sandra’s case, the case of Smith will help greatly as it proves that depression must be taken into account when deciding how a reasonable person would react. If we were to examine whether a woman who is regularly beaten by her husband and suffered from depression were to react within this way it would be most probable.
We should however consider the possibility of Diminished Responsibility and the possible claim that Sandra suffers from the condition “Battered Womans Syndrome”.
Diminished Responsibility

The defence of diminished responsibility can be found under the Homicide Act 1957, S2. Once again it involves 3 elements, however in this defence is it up to the defendant to provide the burden of proof. This will be done so upon a balance of probabilities. However it must be mentioned that diminished responsibility is not intended as a defence for those suffering from severe mental abnormality and for this the defence of insanity which is a much narrower concept is to be used. It is often successful and upto 90% of claims made succeed.
I will now discuss the first element of Diminished Responsibility.
The First Element: An Abnormality of the Mind

For a person to fulfil the first element of Diminished Responsibility the defendant must prove that they have an abnormality of mind which a reasonable man would find abnormal. Ultimately it will come down to the jury to decide whether the defendant has an abnormality of the mind, however this will be based partly upon medical evidence and the summing up of the judge. When looking at this it does seem a partly absurd concept that 12 reasonable people will decide whether a person is abnormal, based upon evidence from a number of different doctors most probably arguing different defences. The term of diminished responsibility is defined below:

“the term is wide enough to cover the minds activities in all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgement whether an act is right or wrong, but also the ability to exercise willpower to control the physical acts in accordance with that rational judgement.”

The main concept is covered clearly in the case of Byrne 1960.
In the case a man strangled to death a young girl and then performed mutilations upon her corpse. The defendant said that he suffered from severe perverted sexual desires and this had lead to him carry out the crime. His claim was backed up by medical evidence and he was described as being a sexual psychopath. He used the defence of diminished responsibility, however the judge would not accept this claim and did not place it forward to the jury claiming that he was simply “vicious and depraved”. However this was quashed and the above definition applied.
When we examine the case facts in Sandra’s case, it appear that we will definitely be able to classify depression as an abnormality of mind. As the definition states it covers the “minds activities in all aspects”. We could however also attempt to succeed in a claim regarding the condition of Battered Woman’s Syndrome.
In the cases of Hobson 1998 and Ahluwalia 1992 this concept was brought forward to the courts. It is a condition caused by the repeated beatings by a man upon a woman which leads to forms of depression and learned helplessness. From the case facts we become aware that Sandra had “frequent” quarrels which often lead to Peter abusing her. This may have lead to her having the condition battered woman’s syndrome and may be proved through medical opinions.
However, we must prove that the conditions have arisen through an inside source in the second element of provocation.
The Second Element: Abnormality must be caused by an Inside Source

Abnormality must be caused by:

“arrested or retarded development of mind or by any inherent causes or induced by disease”.

Therefore the abnormality must have been caused by an inside source. The defendant could not claim that they were intoxicated, and that this caused their abnormality of mind. This would be an external source and would therefore not succeed as a claim of diminished responsibility. If however the intoxication had lead to damage of the brain then the claim may well succeed.
There are a number of conditions which fall under this claim of “an inside source” and this includes; Psychopathy, Paranoia, Epilepsy, Depression and Battered Woman’s Syndrome.
The concept of Psychopathy was seen in the case of Byrne, however Paranoia can be seen in the case of Martin 2001. This was a famous case involving farmer Tony Martin who shot a fleeing burglar in the back with a shotgun. He was convicted of murder, however later appealed on the fact that he was suffering from “paranoid personality disorder”. He was successful on this appeal. Therefore the judges accepted that Paranoia could be an inside source leading to abnormality of mind.
Sandra’s case in particular would be relying upon the fact that depression can be considered as an abnormality of mind. Therefore we must examine the cases of Seers 1984 and Gittens 1984 with regard to this matter. In the case of Seers it was stated that the defendant does not have to be insane to use the defence of diminished responsibility. It was held that depressive illness could be a form of abnormality. In Gittens it was further held that Chronic Depression could also pass as an abnormality of the mind. In this case the defendant had been suffering from Chronic Depression which had lead to him killing and raping his wife and stepdaughter.
It is therefore evident that Sandra can use depression as a reason for her abnormality of mind.
We must also consider, as mentioned earlier, the possibility of the claim of “battered woman’s syndrome. This was mentioned in the cases of Ahluwalia and can also be seen in the cases of Hobson 1998 and Thornton 1996. In these case the original plea of provocation was not successful however they were able to reduce the charge of murder via the plea of diminished responsibility caused by Battered Woman’s Syndrome.
Therefore I feel that there is plenty of evidence which Sandra could rely upon and for a plea of diminished responsibility. However it must be mentioned that the evidence is required to be strong medical evidence backed up by medical experts. This was expressed in the cases of Sanders 1991 and Campbell 1997. This is discussed more strongly in the third element but overall I feel Sandra’s chances of a plea of Diminished Responsibility to succeed would be high.
The Third Element: Substantial Affect upon the Defendants Mental Responsibility

The abnormality must have had a substantial affect upon the defendants mental responsibility. The case of Lloyd 1967 stated that the impairment must be more than merely trial or minimal however it does not need to be total. Therefore as long as the condition affected their responsibility it may succeed (as in Sandra’s case).
The medical evidence must also be strong as stated in the cases of Sanders 1991 and Campbell 1997. Therefore as long as the medical evidence was strong then Sandra’s claim would most likely be able to succeed. If the jury were to ignore strong evidence then as per Matheson 1958, the conviction can be quashed.
Conclusion

Overall I feel that Sandra would be best to try a claim for Provocation initially although Diminished Responsibility may be better if there is strong medical evidence present. There may also be the need for reform of these areas. Many critics state that these defences are to biased towards males and that less defences are available for women. However serious consideration would be needed in order to ensure that the defences do not become two easy allowing guilty offenders to get away with lesser sentences.

BIBLIOGRAPHY
Criminal Law 3rd Edition by Roe, D. 2005, Hodder Arnold
Criminal Law: Text, Cases and Materials by Herring, J. 2004, Oxford UP
www.peterjepson.com

Essay Plan for Murder and Manslaughter Problem Question

Introduction
Discuss the issue of Murder
Refer to any cases which related to the case
Discuss Possible Manslaughter
Discuss Defences
Discuss Provocation and uses cases as example. Explain the 3 Elements.
Discuss Diminished Responsibility and use cases as examples. Explain the 3 Elements. Refer to “Battered Woman’s Syndrome”.
Conclusion