Murder and Manslaughter Homework

Written by Ruth Maltby

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

Murder is a common law offence and is not defined by any particular act of parliament; it is simply defined by the decisions of judges. The general consensus is that murder is:

“The unlawful killing of a reasonable person in being and under the King's (or Queen's) peace with malice aforethought, express or implied.”

This is the description given by Lord Coke, a seventeenth century judge. It has since been modified to the modern definition of:

“The unlawful killing of a human being under the Queen's peace with malice aforethought”

Firstly, the defendant must have unlawfully killed a reasonable creature in being, under the Queen's Peace. This is the actus reus for murder. Secondly, the defendant must fulfil the mens rea of murder which is stated as 'malice aforethought, express or implied”. This means that the defendant must either expressly wish to kill the victim or it may be implied - through the intention to cause GBH. The case of Cunningham (1981) shows that an intent to cause GBH is enough for the mens rea of murder. GBH has been described in DPP v Smith (1961) as 'really serious harm', although the word 'really' may be left out.

If someone fulfils both the actus reus and mens rea of the offence of murder they can be convicted of murder. The judge must give a mandatory life sentence to this offence, meaning that they have no alternative but to send the defendant to prison for a life term.

However, there are three defences to murder; diminished responsibility, provocation or suicide pact. These defences are set out in the Homicide Act (1957) and are only available to the offence of murder. Also, they are not complete defences (meaning that they do not get the defendant completely acquitted), but if one of the defences is successful the charge of murder will be reduced to one of (voluntary) manslaughter, where the judge has discretion over sentencing. The judge may still however impose a life sentence as in Byrne (1960) or impose no sentence at all.

In this case, Sandra has fulfilled both the actus reus and mens rea of murder by unlawfully killing a human being under the Queen's Peace. It can be assumed that hitting her husband, Peter, over the head with a marble statuette she intended to cause 'really serious harm' at the very least. Although Sandra has committed the offence of murder there are several defences that she may take; diminished responsibility or provocation. If the defence was successful then her charge would be reduced to manslaughter. In this essay I will discuss the defences of diminished responsibility and provocation and conclude if they would be effective or not.

Provocation

Provocation has been described under the Homicide Act (1957), s 3:

“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 the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything done and said according to the effect which, in their opinion, it would have on a reasonable man”

This section does not describe what provocation can be apart from 'things done or by things said', it does however impose a two stage test for the jury. Firstly the jury should be asked if D was provoked to lose his self control (subjective test) and secondly, whether the provocation was enough to cause a reasonable man to lose his self control (objective test).

An simple example of provocation is V hits D, D loses his self control and hits V over the head with the bottle he is holding, killing him.

In Sandra's case, for the defence of provocation to be successful three elements must be present; evidence that Sandra was provoked, that Sandra lost her self-control as a result of the provocative act and the jury must be satisfied that a reasonable man might have acted in a similar way. I will discuss these elements to see if the defence of provocation is possible.

Evidence that Sandra was provoked:

To determine that there is evidence that Sandra was provoked, I firstly need to establish what provocation is and what actions count as provocation. Primarily, it is the judge who will decide whether there is enough evidence of provocation to be put before the jury. S3 of the Homicide Act (1957) says that provocation can arise from things done or said (or both). The things said or done do not have to have come from the victim, or be directed at the defendant. This is illustrated in the case of Davies (1975) the defendant's wife's lover walked to work to meet her, this action caused the husband to lose his self-control and kill his wife. Further evidence that the things done or said do not have to be directed at the defendant is shown in the case of Doughty (1986). This is where the defendant killed a 19-day-old baby for continuously crying, the crying cannot have been directed at the defendant. Furthermore, in Pearson (1992) the defendant killed his father with a sledgehammer for ill treatment that had mainly been directed at the defendant's brother.

Provocation can also be 'self-induced'; this includes cases where the D has started the trouble themselves. This can be seen in the cases of Johnson (1989) and also Baillie (1995) where the D went to the house of a drug dealer with a sawn off shotgun and a knife because the V (the drug dealer) had threatened the D's sons.

'Self induced' provocation is not relevant to Sandra's case, as her husband Peter clearly started the trouble by things he said and did. The series of provocative acts started when Peter came home drunk, he then insulted her (by calling her a 'hopeless wife' and an 'inadequate mother') and finally he slapped her. This final act, combined with the series of provocative acts, could be said to be sufficient for Sandra to lose her self-control. Sandra should have little problem proving this element as there is a clear series of things said and done to provoke her, however the judge would leave it to the jury to decide whether the provocative acts were sufficient to justify a defence of provocation.

Did Sandra lose her self-control as a result of the provocative act?

It is not enough for Sandra to prove that she was provoked; she must also prove that this provocation led to a loss of her self-control (this is a subjective test).

The main definition of provocation comes from Lord Devlin in Duffy (1949) and despite the Homicide Act (1957) and the changes that it has made, the following part of his definition allows the defence of provocation to be used when it 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”

However, the loss of control does not have to be a complete loss, to the extent that the D is completely unaware of what they were doing. This is shown in the case of Richens (1993) where it was held that it simply had to be proven that the D was provoked to lose their self-control and then killed.

There has been some problem with the words 'sudden and temporary' as in cases where the D has waited for a period of time before acting, the jury are less likely to believe that the D has lost their self-control as they have had a 'cooling off period' before they kill. This is a particular problem in cases of 'battered wives', where the anger can build up slowly following provocative acts (called 'slow-burn') until there is a final outburst. This can be illustrated through the cases of Duffy (1949) and Thornton (1992)

Firstly, in the case of Duffy (1949) the D was a 'battered wife' and she had an argument with her husband. She went and changed her clothes and then attacked her husband in bed with a hammer, killing him. The D was charged with murder and it was held that there must be '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 'slow-burn' effect was considered in the case of Thornton (no.2)(1996) where the D's husband was very possessive of her and physically abused her; he was also a heavy drinker. One time he came home and called her names and threatened to kill her when she was sleeping. The D went into the kitchen, sharpened a knife and stabbed her husband, killing him. It was held that there could be a sudden loss of self control triggered by a minor incident - it can be the 'last straw' that is the provocation for the killing. It was also found that the D was suffering from 'Battered Woman Syndrome' that can help explain 'slow burn'.

Sandra could indeed be described as a 'battered woman' suffering from abuse from her husband Peter causing an abnormality of mind (she became depressed). However, there was only a short period of time between Sandra being provoked and her act that resulted in Peter's death. This would help her claim of provocation and distinguish between this and other cases. This should allow a claim of provocation to be successful.

If Sandra had waited until Peter had fallen asleep in his chair and then killed him with the statuette

If Sandra had waited for Peter to fall asleep in his chair and then killed him, her defence of provocation could fail based primarily upon the words of Lord Devlin in Duffy (1949) used to stop provocation being used in revenge cases:

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

However, in the case of Ahluwalia (1992) the D had been physically abused by her husband for along time and one night after threatening her with violence, the V (the husband) went to bed. The D waited until he was asleep and then poured petrol over him and set it alight. He died. Although, the defense of provocation was not valid here, it was stated that the provocation only had to be 'sudden' not 'immediate' although the longer the delay the more likely it is that the act was deliberate.

The jury must be satisfied that a reasonable man might have acted in a similar way

Under s.3 of the Homicide Act (1957), The jury has to consider whether a 'reasonable man' would have acted in the same way as a result of the provocation.

In the case of Phillips (1969) Lord Diplock stated:

“The test of provocation is two-fold. The first, which has always been a question of fact for the jury, assuming that there is any evidence upon which they can so find, is 'Was the defendant provoked into losing his self control?' The second, which is one not of fact but of opinion, is 'would a reasonable man have reacted to the same provocation in the same way as the defendant did?”

He went on to say that the jury must determine this.

The phrase 'reasonable man' is a problematic one, and before the 1957 act was described by the courts as an 'adult who was normal both mentally and physically'. Using the case of Bedder v DPP (1954) as an example this seems unfair as the D was impotent, for which he was taunted by a prostitute who he then killed. The jury had to ignore his impotence and use the 'reasonable man' test.

This was followed by the leading case of Camplin (1978) where the objective test was changed by the House of Lords, who felt that a better test would be:

“Would a reasonable man with the same characteristics of the accused have acted in the same way?”

In this case, a 15year old boy had been sexually abused by a man who had then laughed at him. The D hit him over the head with a pan, killing him. It was held that this was manslaughter and Lord Diplock stated:

“...The reasonable man is a person having the power of self control to be expected of an ordinary person of the sex and age of the accused…”

Since Camplin, the cases of Smith (Morgan James) (2000) and of Weller (2004) have changed the definition of a 'reasonable man' to being (as stated in Smith):

“Are characteristics other than age and sex, attributable to a reasonable man for the purpose of s 3 of the Homicide Act 1957 relevant not only to the gravity of the provocation to him but also the standard of self-control to be expected”

Basically now any characteristic of the defendant could be relevant and the test is whether or not the D should have controlled themselves.

A further case in this area is Holley (2005) where it was held that the jury must “take the defendant as they find him, 'warts and all'”

Sandra's depression is a characteristic that can be taken into account, the fact that she had depression (because of the abusive relationship) and had been given medicine by a doctor could help her case of provocation as a reasonable depressed person may act differently to a reasonable person.

Sandra could succeed with her defence of provocation, as it would appear that she fulfils the three necessary elements for provocation. Previous, similar cases have failed on the fact there has been a delay between provocation and action, Sandra had no such delay. Also, Sandra could be classed easily as a 'battered woman' with depression and the 'slow burn' effect could be considered in her favour.

Diminished Responsibility

The defence of diminished responsibility was introduced by the Homicide Act (1957) it did not exist in England before that, meaning that if a person with mental problems murdered someone pre-1957 their only defence was insanity which has a very narrow test. S 2(1) of the Homicide Act (1957) states:

“Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from 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.”

The burden of proof is upon the defendant, however they only need to prove it on the balance of probabilities. Sandra must therefore be able to prove that she was suffering from an abnormality of the mind, that this abnormality arose from an inside source and that it substantially effected her mental responsibility for her actions.

Sandra must be able to prove that she was suffering from an abnormality of the mind.

An abnormality is a state of mind which a reasonable man would find abnormal, the decision of whether the defendant was suffering from an abnormality of mind rests with the jury and can often be based upon medical evidence, also the jurors are heavily influenced by the summing up of the judge. Abnormality of mind covers a broad range of situations. In the case of Byrne (1960) abnormality of mind is described as:

“A state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal”

In this case, the D was a sexual psychopath who killed and mutilated a woman. Medical evidence stated that because of his condition he was unable to control his perverted desires, it was held that his condition came within the definition of an abnormality of the mind and was said to cover:

“The mind's 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 physical acts in accordance with that rational judgement”

The defendant was convicted of manslaughter, but still received a life sentence.

Sandra was depressed and suffering from 'Battered Wives Syndrome', both of these could be described as causing her to have 'a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal'. Also, the courts have been willing to accept the claim of 'Battered Wives Syndrome' as an abnormality of the mind (Ahluwalia, 1992 and Hobson, 1997)

This abnormality must arise from an inside source

The second aspect of the defence of diminished responsibility says abnormality must be caused by “arrested or retarded development of mind or any inherent causes or induced by disease or injury” meaning that it must arise from an inside source as opposed to an outside factor. It does not have to be permanent. However a totally external factor like drinking or taking drugs cannot be put forward by the defence unless this drinking or drug taking had damaged the mind, or the cravings for these items could not be controlled.

The Homicide Act (1957) s2 (1) sets out what can constitute as a cause of an abnormality of the mind:

“A condition of arrested or retarded development of mind or,
Any inherent cause,
Induced by any disease or,
Induced by injury”

This defence of abnormality of mind has been allowed for a person who killed in a 'fit of jealousy' (Miller, 1972), for women with postmenstrual tension (Smith, 1982) and for someone with chronic depression (Seers, 1984).

Seers (1984) shows that comparisons with insanity should be avoided and that diminished responsibility can cover a wide range of mental conditions for example, depressive conditions, epilepsy and battered wives' syndrome. In Seers a depressive was given a conviction of manslaughter.

Sandra suffers from depression and battered wives' syndrome; she could base her defence of diminished responsibility on these factors. The depression has been diagnosed by her doctor and it could be said that the depression is an 'inherent cause'.

This must substantially affect her mental responsibility for her actions

The main problem for a defendant is proving that their abnormality of mind is greater than that of an ordinary person. For example, their abnormality of mind doesn't have to be total, however it does have to be 'more than trivial' (Simcox, 1964).

The judge in Lloyd (1967), Ashworth said:

“Substantial does not mean total, that is to say, the mental responsibility need not be totally impaired, so to speak, destroyed altogether.”

Medical evidence should also be used to support the case. However, in the case of Sanders (1991) the D's conviction for murder was upheld despite the fact that two psychiatrists testified that he had 'reactive depression'. Other evidence was more important here.

In the case of Campbell (1997) the D successfully pleaded diminished responsibility on second appeal. The D picked up a female hitchhiker and attacked her when she refused his advances. He claimed that he had diminished responsibility because of his epilepsy and frontal lobe damage; evidence was heard from two psychiatrists. Lord Bingham Stated:

“Both doctors were of the clear opinion that at the time of 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.”

These cases clearly show that two medical opinions can prove essential.

In the case of Hobson (1997) the judge did not allow the plea of diminished responsibility to go to the jury and they convicted the D of murder. However, the D, a battered wife, appealed and 'Battered Wives' Syndrome' was developed and the courts held that the cumulative effects of this 'Battered Wives' Syndrome' could lead to an abnormality of the mind causing a woman to turn and to kill her husband.

Sandra, to be successful in claiming diminished responsibility would need medical evidence for example in the form of two doctors or psychiatrists. The depression can be proven as she went to her doctor and received medication, the medication shows that Sandra was 'substantially' affected by the depression. The case of Hobson (1997) is key here as Sandra could claims 'Battered Wives' Syndrome' and following this case she should be successful.

Conclusion:

There is a good chance that Sandra could reduce her conviction from murder to manslaughter, and it would be advisable for her to plead both provocation and diminished responsibility in the event that one should fail.

Her plea of diminished responsibility should include evidence from experts to back up her case; she could claim both depression and 'Battered Wives' Syndrome'.

If Sandra had waited until Peter had fallen asleep and then killed him, a defence of diminished responsibility would be most likely to succeed, as provocation would be likely to fail, as there was not necessarily a 'sudden and temporary loss of self control'.

On the basis of several 'battered wives' cases like Ahluwalia and Thornton it would appear likely that Sandra would be successful in her pleas for either diminished responsibility of provocation - lowering her charge to manslaughter.

References:

Roe, D - Criminal Law 2nd Edition

Martin, J - Criminal Law for A2

Smith & Hogan - Criminal Law, cases and materials 8th edition.

Short listed Essays

Cases:

Cunningham, 1981

DPP v Smith, 1961

Byrne, 1960

Doughty, 1986

Pearson, 1992

Davies, 1975

Johnson, 1989

Baillie, 1995

Richens, 1993

Duffy, 1949

Thornton, 1992 and (no.2), 1996

Ahluwalia, 1992

Phillips, 1969

Bedder v DPP, 1954

Camplin, 1978

Smith (Morgan James), 2000

Weller, 2004

Holley, 2005

Byrne, 1960

Simcox, 1964

Miller, 1972

Smith, 1982

Sanders, 1991

Campbell, 1997

Statutes:

Homicide Act, 1957