Murder and Manslaughter Homework
Written by Isla Gray (Nov 2005)
Peter and Sandra have been married for several years and have two young children. In the past few years they have had frequent quarrels, during the course of which Peter has often hit Sandra. She has become very depressed and has been placed on medication by her doctor after telling the doctor how she feels 'trapped' in the relationship.
One evening, Peter returns home from the pub rather drunk. They begin an argument and Peter tells Sandra that she has always been a hopeless wife and an inadequate mother. Sandra begins to cry. Peter slaps her face and tells her to pull herself together. Enraged, Sandra grabs a marble statuette from the mantle shelf next to her and smashes it over Peter's head, killing him instantly.
Advise Sandra, who is charged with the murder of Peter.
Would it make any difference to your advice if Sandra had waited until Peter had fallen asleep in his chair and then killed him with the statuette?
Introduction
There is no statute giving a definition murder, the law on murder is defined under case law, which has evolved through a series of important judgements in decided cases since the seventeenth century. The current definition of murder is ‘the unlawful killing of a human being, under the Queen’s peace with malice aforethought’. The Homicide Act 1957 mainly deals with a number of special defences that can be pleaded to the charge. Manslaughter is similar to murder, in which the actus reus is satisfied, i.e. the unlawful killing of a human being but with no malice aforethought. Manslaughter can be voluntary or involuntary. Involuntary manslaughter occurs where there is no malice aforethought but a death results because of an unlawful act or gross negligence. Voluntary manslaughter arises where actus reus of murder appears to have been satisfied but one of three possible defences granted by statute can be pleaded which will reduce the offence from murder to manslaughter. These defences are contained in the Homicide Act 1957 which are diminished responsibility, provocation and the survivor of a suicide pact. It is not a specific charge in itself but rather can arise from a charge of murder to which a special and partial defence has been pleaded. These special and partial defences are called special since they may only be pleaded in defence to murder and partial because if a successful plea results, there is not an acquittal but a conviction for manslaughter. This allows the judge to exercise discretion in choosing the appropriate sentence depending upon all the circumstances of the individual case.
In Sandra’s case, she has committed murder as she has satisfied both the actus reus (the unlawful killing of a human being) and the mens rea (with malice aforethought) which are both necessary for someone to be convicted of murder. However, she could reduce her charge of murder to manslaughter, by arguing it was voluntary manslaughter if she can prove one of the three defences. In this essay, I am going to examine and discuss the defences Sandra could use to drop her charge of murder to manslaughter. I shall discuss the possibility of using diminished responsibility or provocation as a defence and whether they could be successful or not by using case law and facts to illustrate my arguments.
Provocation
45 per cent of all killings are committed by people who lose their temper. The defence of provocation may be available if this loss of control has been caused by the provocative act of the other party. The Homicide Act 1957 s.3 gives a partial definition of this defence;
‘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 by both together) to lose his self control, the question whether provocation was enough to make a reasonable man do as he did shall take into account everything both done and said according to the effect which, in their opinion, it would have had on ‘a reasonable man’.
Section 3 is divided into two ‘limbs’ for the purposes of exposition. The first was the accused in fact provoked, and the second is whether a reasonable man would have been provoked. The Homicide Act does not fully explicate the definition of provocation. The best-known definition before statute was that of Devlin J in the Court of Criminal Appeal in Duffy 1949;
‘Provocation is some act or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes the accused 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 Homicide Act 1957 recognises that there has to be evidence of provocation but it now states that this can arise from ‘things said’ as well as ‘things done’. There are no limitations on these concepts. The provocation does not necessarily have to come from V (Davies 1975), nor does it need to have been directed at D (Pearson 1992). It is the jury who will have to decide this issue, by measuring the conduct of the accused by the standard of the reasonable man. An example of provocation could be in a situation where V insults D about D’s deformed nose, a characteristic about which D has very strong feelings. D loses his self-control and smashes V over the head with a beer glass he happens to be holding, thereby killing V.
In relation to Sandra’s situation, under the Homicide Act 1957 the defence of provocation has three elements to it which have to be satisfied;
I will discuss these elements below to illustrate whether the defence of provocation is suitable for Sandra.
Evidence that Sandra was provoked
To find evidence that Sandra was provoked, I must first discuss what actions can amount to provocation. Under the 1957 Act, provocation need not be something illegal or wrong. It simply has to be something ‘done’ or ‘said’. Primarily, it is the judge who will decide whether there is enough evidence of whether the provocative act is enough to justify the defence of provocation to be put before the jury. In Doughty 1986, the defendant’s murder conviction was quashed on the ground that provocation should have been left to the jury. He killed his 19-day-old son after the child would not stop crying. The Court of Appeal held that it should have been left to the jury to decide whether the baby’s crying was provocation by ‘things done’. In Davies 1975, the provocative act of the wife’s lover, walking towards her place of work to meet her, was taken into account when the husband lost control and killed his wife. In Pearson 1992, the Court of Appeal decided that this was still an act of provocation where the defendant was provoked by his father’s abusive treatment of the defendant’s brother into killing the father with a sledgehammer. Provocation could arise where the act was ‘self-induced’ i.e. even when the accused started the trouble as seen in Baillie 1995 and Johnson 1989 where the Court of Appeal allow the defendants appeal, despite the fact that he had been the one who started the trouble and even though he had been armed with a knife and the other only had a broken glass. However, ‘self-induced’ provocation is irrelevant to Sandra’s case because Peter had started the trouble. We could argue in Sandra’s case that the provocative act started of with a series of Peter’s actions, in which Peter came home drunk and started an argument with Sandra calling her a hopeless wife and inadequate mother. However, the final provocative act was when Peter slapped her across the face in which pushed Sandra to make her become fearful and angry and so to lose her self-control. I believe that Sandra has enough evidence to show that she was provoked because there are series of provocative acts leading up to her action and a final act in which cause her action.
Did Sandra lose her self-control as a result of the provocative act?
There is the subjective question which the jury need to consider which is, was Sandra provoked to the extent where it affected her so strong that she felt the need to lose her self-control? The definition in Duffy (as explained above) 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.’
In Ibrams and Gregory 1981 and Thornton (No.1) 1992, the Court of Appeal approved the Duffy test. In Ibrams and Gregory, Lawton LJ said:
‘Indeed, 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’.
In the case of Ibrams and Gregory 1981, the defendants had been terrorised and bullied by the victim. They and another woman involved in the case had failed to obtain satisfactory police protection so decided to take matters into their own hands. A few days later, they devised a plan for the woman to lure the man to bed, whereupon the defendants would burst in, attack him and break his arms and legs. Instead, the victim was killed and the defendants were found guilty of murder. The Court of Appeal upheld the conviction, deciding that the formulation of a plan indicated that there was no sudden loss of self control and therefore no defence. Although the defence of provocation was unsuccessful in this case, in relation to Sandra’s case, her action of smashing the statute over Peter’s head was a spur of the moment action from when Peter slapped her across the face. This could show evidence in her favour to the defence of provocation, that she had lost her self-control because there was no premeditation and it was a ‘sudden’ action of lose of self-control.
In Duffy 1949, an 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. Lord Devlin gave the direction know as the now famous ‘Duffy test’ and decided that the woman’s actions did not fall within it. Her conviction for murder was, therefore upheld. The courts are less inclined to believe that a person has lost his self control if he or she has had time for a ‘cooling-off’ period and has then gone on to commit the offence. Sandra had no ‘cooling-off’ period, she was upset and crying and when Peter slapped her she acted almost instantaneously which shows evidence that there was a ‘sudden and temporary loss of self-control’. Her state of mind was obviously temporary because she was crying and in distress and when Peter slapped her across the face this was the final act, which leads her to lose her self-control.
Evidence of provocation is not confined to the last act or word before the killing. There may have been previous acts or words which, when added together, cause the defendant to lose self-control, even though the last act on its own may have been ‘relatively un-provocative if taken in isolation’, according to Lord Goff in Luc Thiet Thuan 1997. All the evidence must be left to the jury to consider (Humphreys 1995). It has been argued that, in domestic violence cases, the ‘sudden and temporary loss of self-control’ test is inappropriate. Where a woman who has suffered years of violence and abuse finally seizes her opportunity when the husband is asleep or drunk or both, and kills him, she may not be reacting to any particular act or incident, but rather the accumulation of years of abuse. This is known as the ‘slow burn’ effect. Although the situation does call for mitigation, the courts in such cases have consistently upheld the Duffy test. Consequently, battered women who kill face life sentences for murder. In Thornton 1996, the defendant had a stormy relationship with her husband, both of them drank heavily and sometimes her husband became violent and assaulted his wife. One the night in question, the couple quarrelled and the defendant went into the kitchen and sharpened a knife and returned to where her drunken husband was sleeping on the sofa. She asked him to come to bed and he refused and, after a further acrimonious exchange, she stabbed him in the stomach and killed him. The defence relied on the plea of diminished responsibility at the trial but the trial judge also introduced the possible defence of provocation. Both pleas were unsuccessful and the jury conviction Thornton of murder. The Court of Appeal ruled that the accused must be deprived of self control ‘at the moment of the fatal blow was struck’ as Beldam LJ put it. The issue of provocation was again raised on her first appeal but this, too, was unsuccessful because it was felt that her actions of obtaining a knife and sharpening it did not indicate a loss of self-control. After several years in prison, another appeal was allowed and, at this, a retrial was ordered. The defence of provocation was again dismissed but the alternative plea of diminished responsibility was accepted by the jury and a verdict of manslaughter substituted for murder. A sentence of six years’ imprisonment was given, which in view of the time already served, meant that Thornton could walk free from court. Similarly in Ahluwalia 1992, the defendant had suffered years of physical abuse from her 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 then poured petrol over the bed and set fire to it. The victim later died from his injuries. Once again, it was difficult for the defence to show a sudden loss of self control and Ahluwalia was convicted for murder. After a strenuous campaign to free her, the murder conviction was changed to one of diminished responsibility, caused by what has become known as ‘battered woman syndrome’ and ‘learned helplessness’, was accepted. The Court of Appeal was prepared to accept that acts of provocation could take place over a period of time, a ‘slow burn’ effect, but Lord Taylor, the Lord Chief Justice at that time still reiterated that the actual loss of control at the end of the period had to be a sudden one. He said that ‘the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation’. The judge at the trial made the following comment;
‘Circumstances which induce 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.
Although Thornton 1996 and Ahluwalia 1992 were both unsuccessful using the plea of provocation, this can be used as persuasive in Sandra’s case. Sandra had suffered the ‘slow burn’ effect of the acts of provocation, this being in the past few years she had been at the hands of Peter abuse and violence causing her to go medication for depression. The courts are prepared to accept the ‘slow burn’ effect as in Ahluwalia 1992. Both in Thornton and Ahluwalia, their actions where not out of a sudden temporary lose of self-control. Whereas Sandra’s actions were sudden, with the final provocative act being when Peter had slapped her, on top of this she had been suffering the ‘slow-burn’ effect of the abuse and violence she was suffering from her husband and also the series of acts (the argument and what Peter had said). Also the fact that Sandra acted momentarily after Peter had slapped her and she was enraged, shows that she had no time to reflect or consider any formulation of plan, which in turn highlights the fact she had a ‘sudden temporary loss of self-control’.
Would the jury must be satisfied that a reasonable man might have acted in a similar way?
This is a more objective test, where the jury must be satisfied that the reasonable man would a) have lost self-control, and b) done as the defendant did. This examines the behaviour of the defendant and assesses the extent of his reaction to the provocation and asking the jury to decide whether a reasonable man might have acted in the same way. We assume that a reasonable man is an adult of normal temperament and attributes? Before the Homicide Act 1957, judges consistently held that the reasonable man was an adult with normal physical and mental attributes. A reasonable man is now said to be a reasonable person sharing similar characteristics to the accused. This means that the defendant’s age, sex and all other physical and mental characteristics may be taken into account when assessing the effect of the provocation on the accused. This led to some very harsh decisions. The more objective view of a reasonable man can be seen in Bedder v DPP 1954, where a prostitute taunted D about his impotence (something that he was, unsurprisingly, very sensitive about) with the result that he lost his self-control and stabbed her to death. The Lords approved a direction that the jury had to consider what effect the provocation would have on the ordinary person with no sexual hang-ups (presumably, very little). The House of Lords dismissed his appeal against the conviction for murder, stating that a reasonable man would not have lost control in this way. No allowance was made for the special circumstances of the man’s impotency. The objective approach of a reasonable man was developed 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?’ The defendant was a 15-year-old boy who 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 chapatti 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, while certain of the boy’s characteristics should not be taken into account for policy reasons, such as his drunkenness and excitability, other characteristics, such as his young age, could be. The question for the jury, therefore, was whether a reasonable youth of 15, in similar circumstances, would have acted as he did. Because this was a possibility, the appeal against the murder conviction was allowed. The Camplin distinction allowed juries to take into account of D’s characteristics when deciding whether a reasonable man may have lost self-control. Lord Diplock’s direction divides the objective question into two separate and distinct issues; the gravity of the provocation: theoretically, any of the defendants may be relevant and the power of self-control: this remained a ‘purely’ objective standard (only the defendant’s sex and age were relevant). This distinction was confirmed by the House of Lords in Morhall 1996 and by a majority of the Privy Council in Luc Thiet Thuan 1997. In Smith 2000, however, a majority of the House of Lords (Lords Clyde, Hoffman and Slynn), decided that the objective test should not be divided up in the way suggest by Lord Diplock. Mental characteristics can be taken into account on whether a reasonable man would have lost his self control. This new approach can be seen in the case of Humphreys 1995, where the defendant had been convicted of murder after stabbing her lover. The court decided the girl’s characteristics of immaturity and attention-seeking could be likened to an illness like anorexia. They could be seen as part of a psychological illness and were thus sufficiently permanent characteristics to be attributed to the reasonable young woman. The court also stated that, in a complex case such as this, the jury should have been given a more detailed analysis of the possible areas of provocation and not have been left without guidance simply to make its own decision. The appeal was allowed. In Ahluwalia 1992, the Court of Appeal it had stated that post traumatic stress disorder and battered woman syndrome, a psychological condition caused by enduring years of domestic violence, could be a relevant characteristic because battered woman might well perceive threats of violence more seriously than women who had never suffered physical violence before could come under the heading of characteristics for the purposes of provocation. This was also supported in Thornton (No 2) 1996, even though, as in the previous case, diminished responsibility rather than provocation was accepted as the more relevant defence. The jury could be satisfied that a reasonable man with the characteristics of battered women syndrome would have acted in the same way, seeing as the courts have been sympathetic in the past towards this attitude. Sandra also suffered from depression, in which she was prescribed medication; this is also another characteristic that can be taken into account. In Smith 2000, the defendant had suffered a severe depressive illness. One day he got in a heated argument with an old friend of his, over some tools belonging to Smith which had gone missing, and eventually stabbed him through the head with a kitchen knife. Smith was charged with murder and pleaded various defences: lack of intent, diminished responsibility, and provocation. As to the latter defence, the trial judge directed the jury that evidence that while Smith’s depressive illness was a characteristic that was relevant to the gravity of the provocation, it was not relevant to the standard of self-control to be expected of the reasonable man. The jury rejected all of Smith’s defences and he was convicted of murder. However, the Court of Appeal quashed the conviction and substituted one of manslaughter. The House of Lords dismissed the prosecution’s appeal on the basis of a wider view of provocation. The majority decided that to draw a distinction between the two parts of the objective tests would be very difficult for juries and thus probably unworkable. Lord Hoffman described the effect of the distinction as requiring the jury to perform ‘mental gymnastics’. The minorities view and their decisions were described by Professor Sir John Smith as ‘completely convincing’. He argued that allowing juries to consider evidence of a depressive illness when deciding on the standard of self-control possessed by the reasonable man effectively eliminated the objective element altogether. Psychological characteristics can be taken into account in the context of the objective limb of the provocation defence. In Rowland 2004 the defendant killed his wife, by stabbing her repeatedly with a carving knife. At his trial in 1997, he pleaded provocation. There were two provoking incidents; his wife taunted him about a medical condition he had developed called Peyronie’s Disease, which caused a bend in his penis and the second the couple had a heated argument about the breakdown of their marriage in which his wife had stuck fingernails in his face. The trial judge directed the jury to consider whether a reasonable man of Rowland’s age and sex and having Peyronie’s Disease might have lost self-control. The defence team decided not to use evidence available to them that Rowland was suffering reactive depression, believing that, under law as it then was, it was inadmissible. However, after Smith was decided in 2000, the case was remitted to the Court of Appeal where a conviction of manslaughter was substituted. Potter LJ said that ‘had the legal position at the time of trial been that determined by Smith, it is likely that the defence would have sought expert opinion on the issue of provocation, the jury being provided with evidence of Rowland’s personal characteristics in support of such a defence.
This case in very similar to Sandra’s case, in which the defendant suffered from depression, argued with a spouse on the night in question and was taunted by them and then attacked then which then caused them to lose there self-control.
In Weller 2004, the defendant lived with his 18-year-old girlfriend for about five months. They frequently rowed and the victim had said she wanted to end the relationship. Following another heated argument, Weller strangled her to death in the flat. At his murder trial, there was evidence that Weller was usually possessive and jealous. The trial judge directed the jury that, ‘You of course make allowances for human nature and the power of emotions but you have to consider and decide what society expects of a man like this defendant in his position.’ Weller was convicted and appealed on the basis that the judge should have drawn the jury’s attention more specifically to his jealous and possessiveness. The Court of Appeal dismissed the appeal.
The jury will have to look at Sandra’s characteristics when asking whether a reasonable man would have acted in a similar way as the defendant did. The courts must first examine Sandra’s mental characteristic’s. We can argue that Sandra had suffered from battered woman syndrome, which is now accepted as a relevant characteristic as a ‘slow-burn’ effect in the cases of Ahluwalia and Thornton. Psychological characteristics can also be taken into account, as per Rowland. Sandra suffered from depression and was prescribed medication, which would be relevant. We can argue that someone suffering from battered women syndrome is not a ‘reasonable person’ and might well have acted in a similar way to Sandra.
Diminished Responsibility
The defence of diminished responsibility was introduced into English law by s.2 of the Homicide Act 1957. It is arguable that a person whose mental responsibility is impaired should not be found guilty at all, but a special defence applying only to murder has been created. Section 2 (1) of the Homicide Act states;
‘Where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from 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 by injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being party to the killing’.
Section.2(1) can be broken down into three components, in which Sandra will have to prove in order to be successful to plead diminished responsibility. This concerns;
Section 2(2) puts the burden of proof on the defendant; he will have to prove his abnormality on a balance of probabilities and generally he must be the one to raise the defence.
An Abnormality of Mind
Although medical evidence is important, the decision whether the defendant was suffering such an abnormality is one for the jury. This is based on whether the abnormality is a state of mind a reasonable man would find abnormal. Medical evidence is an important influence on the jurors’ decision but should not be the basis, the jurors will also be influence by the summing up of the judge. In Bryne 1960, the defendant was a sexual psychopath who suffered violent, perverted sexual desires, which he found difficult, if not impossible, to control. He strangled a girl in a YWCA hostel in Birmingham and then mutilated the body. He was convicted of murder, but the Court of Criminal Appeal reduced his conviction to manslaughter. Lord Parker CJ said that ‘Abnormality of mind…means a state so different from that of ordinary human beings that the reasonable man would term it abnormal.’ This phrase covers psychopaths, depressives and people suffering battered woman syndrome. The Court of Appeal believed that, if properly direct, the jury would certainly have found that the defence of diminished responsibility would have been made out.
This is relevant to Sandra, as she had both suffered from battered wives syndrome and depression which is consider in Bryne 1960, from Lord Parker CJ as an ‘abnormality of the mind’. The courts have been willing to accept battered woman syndrome as an ‘abnormality of the mind’ in Ahluwalia.
Abnormality must arise from an inside source
This states that the abnormality must be caused by ‘arrested or retarded development of mind or any inherent causes or induced by disease or injury’. There must be evidence of malfunctioning of the mind. Evidence, therefore, of mere intoxication, caused by drinking or drug taking (i.e. outside sources), will not, on its own, be sufficient. In Seers 1984, the judge directed the jury that diminished responsibility was only available to those who were ‘partially insane’ or ‘on the borderline of insanity’. The defendant, who suffered a depressive illness, was convicted of murder, but the Court of Appeal substituted manslaughter. While a depressive illness could amount to an abnormality of mind, few people would consider it to be on the ‘borderline of insanity.’ This was also similar in Gittens 1984 were the defendant suffered from depression for which he sought and received medical treatment. One night he consumed a large amount of drink and anti-depressant pills. In this state he clubbed his wife to death and then strangled his step daughter. The Court of Appeal quashed his murder conviction and substituted one of manslaughter because of misdirection to the jury about the role of intoxicants. The courts in England were slow to accept battered woman syndrome, despite its recognition as a psychological condition, especially in the United States, as providing a basis for a successful defence of diminished responsibility. However, in Ahluwalia 1993, the Court of Appeal allowed her appeal against a murder conviction on the basis of such a condition. The courts have been willing to accept battered woman syndrome as an ‘abnormality of the mind that arises from an inside source’ in Ahluwalia. This was similar in Thornton 1992 where diminished responsibility succeeded as the courts accepted the defendant suffered from battered woman syndrome. In Hobson 1998, the Court of Appeal held that the cumulative effects of ‘battered woman’s syndrome’ could lead to a charge of murder if the abused woman turned on her tormentor and killed him. The courts are now sympathetic to women suffering from battered woman syndrome. It is seen by the courts as a factor affecting the defendants’ state of mind. Both Sandra’s depression and the fact she was suffering from battered woman syndrome can be used in her favour, as they are both seen as ‘an abnormality arising from an inside source’.
Which substantially impairs her mental responsibility
In Bryne 1960, Lord Parker CJ in the Court of Criminal Appeal, pointed out that the ‘Abnormality of mind’ includes the inability to for a rational judgement or to exercise will-power to control one’s acts. It covers ‘the minds’ activities in all its aspects’.
The question whether the accused was suffering from abnormality of mind and whether than substantially impaired ‘mental responsibility’ are for the jury not for the psychiatrist. The Court of Appeal confirmed this in Tandy 1989. However, this case is irrelevant, because Sandra was no intoxicated. In Bryne, the Court of Criminal Appeal said that the question of whether the defendant’s impairment could be described as ‘substantial’ was a question of degree and, hence, although medical evidence was not irrelevant, one for the jury. The need for medical evidence was seen in Sanders 1991 and Camberwell 1997, where the defendant did succeed in pleading diminished responsibility at his second appeal. He had picked up a female hitchhiker and attacked her when she refused his advances. When he discovered that she was not dead, he tried to strangle her and eventually hit her across the throat with his hockey stick. He maintained that he was suffering from diminished responsibility caused by his epilepsy and front lobe damage. The Court of Appeal could quash a conviction if there is strong evidence for the defence and the jury ignores it. It does not matter that the killing was premeditated if the provisions of 2.2(1) are fulfilled as seen in Matheson 1958. Substantial does not mean total, nor does it mean trivial or minimal. In Lloyd 1967, the trial judge, Ashworth J, directed the jury as follows:
‘Substantial does not mean total, that is to say, the mental responsibility need not be totally impaired, so to speak, destroyed altogether. At the other end of the scale substantial does not mean trivial or minimal. It is something in between and Parliament has left it to you and other juries to say on the evidence, was the mental responsibility impaired and if so, was it substantially impaired?’
In Hobson 1998, the trial judge refused to leave diminished responsibility the jury and they convicted. However, in 1997 she appealed, claiming that the evidence at trial supported a diminished responsibility defences, battered woman syndrome. The Court of Appeal, allowing the appeal and ordering a retrial, not that BWS was not recognised until 1994, two years after her trial.
It is important for Sandra, in proving that her abnormality of mind substantially affect her mental responsibility, in doing this it is vital we had medical evidence. Sandra suffered from depression and was treated by a doctor and prescribed medication, this should be enough evidence to show to the jury and whether it ‘substantially’ affected her. However, we are unsure whether there is sufficient evidence on whether BWS substantially affected her mental responsibility. To prove this there would need to be a psychiatrist’s opinion. This could be successful because it was shown in Hobson 1998.
Conclusion
I believe Sandra has a good chance of reducing her charge from murder to manslaughter. However I would advise her to plead both provocation and diminished responsibility as a double barrier. Provocation would work because there is evidence that she has been provoked, for example there is evidence of the ‘slow-burn’ affect of BWS which is accepted by the courts, and other provocative acts leading up to the incident (Peter starting an argument) and then the final provocative act. There is evidence that she lost her self-control as a result of this provocative act, in which she was upset when arguing and then enraged when he slapped her that she acted instantaneously and had no time to reflect on her actions. There is evidence that a reasonable man might have acted similarly to her because of her mental characteristics and psychological characteristics, because she was suffering from battered woman syndrome and depression. It can be argued that someone with the same mental characteristics and psychological characteristics might have reacted in a similar way when provoked in her situation. Diminished responsibility may be successful because she can show the three elements required; she has an abnormality of the mind, as the courts have been willing to accept depression and battered woman syndrome as an abnormality of mind. She can show that it came from an inside source, because BWS and depression have been accepted in Hobson, Seers and Gittins. She also has evidence has medical evidence to show both these factors substantially affected her mental responsibility, which is vital when proving this final element.
Murder and Manslaughter Question
Essay Plan
Introduction
Provocation
Diminished Responsibility
Conclusion