Problem Question A2-4.

It was clear from the homework, which I have marked, that a number of students had difficulties in answering the provocation/diminished responsibility problem question. Essentially, this arose because students are used to taking materials from a textbook and the textbook did not have this problem question within.

The major difficulty is that students created all sorts of weird and wonderful structures for their essays. However, the statute (Homicide Act 1957) provides the ideal and logical structure in the form of possible defences to murder (thus establishing voluntary manslaughter). Accordingly, it makes sense that students should establish sub-headings for each of the three elements required for both provocation and DR.

For provocation (s3 of the Homicide Act 1957) the structure (and required sub-headings) should be:

• Evidence that D was provoked (something “said” or “done”) - relate to the facts of the problem question and apply relevant cases. Refer to Doughty and make clear that, as a general approach, the judge should leave the issue of whether the provocative act is enough to justify a defence (of provocation) for the jury to decide.
• Did D lose her self-control as a result of the provocative act? - again apply the facts of the problem question and use cases. Duffy Test etc
• The jury must be satisfied that a reasonable man might have acted in a similar way (in this area you relate to the characteristics case-law etc. Note also that depression is a characteristic that could be taken into account). Relevant cases – Camplin, Smith, Rowland, Weller etc.

For Diminished Responsibility (s2 of the Homicide Act 1957) the structure (and required sub-headings) should be:

• There must be an abnormality of the mind – Byrne 1960 often useful.
• Abnormality must arise from an inside source -  Seers, Gittens, Aluwhalia, Thornton, Hobson etc. [Consider battered-wives syndrome.]
• This must substantially effect D’s mental responsibility for her actions. Lloyd 1967. Note that in the problem question there was no intoxication - so Tandy etc was not really relevant.

You should refer to the fact that the defence - on the balance of probability - must prove all three elements. It is also important to refer to the need for medical evidence Sanders 1991, Campbell 1997 and that the C of A could quash a conviction if there is strong medical evidence for the defence and the jury ignores it Matheson 1958.

A few central confusions also seemed to be evident. A number of students argued that the judges in Aluwhalia  accepted that a ‘slow burn affect’ could establish provocation. They may well have said that – but such comments can only be obiter since provocation was rejected in that case and she succeeded on the basis of DR.

You MUST have a clear and explicit structure (discuss the facts using case law).

Dr Peter Jepson.                                                                                                  21st Nov 2004.