Murder and Manslaughter Homework
by Chantelle Sawadye
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.
Advice 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?
Plan
For provocation (s3 of the Homicide Act 1957) the structure (and required sub-headings) should be:
For Diminished Responsibility (s2 of the Homicide Act 1957) the structure (and required sub-headings) should be:
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).
Introduction
In this essay I am being required to advice Sandra, who is charged with the murder of Peter. I also have to consider whether it would make any difference to my advice if Sandra had waited until Peter had fallen asleep in his chair and then killed him with the statuette. Murder is a law under common law which means it was made by judges. The accepted definition of murder is by a 17th century judge, Lord Coke. He defined murder as the unlawful killing of a reasonable person in being and under the King’s or Queen’s Peace with malice aforethought, express or implied. From the facts in the case it is plain, very clear that the defendant has committed murder, however, she could possibly use the defence of provocation and diminished responsibility to reduce the charge to manslaughter.
Evidence that D was provoked
Prior to the Homicide Act 1957, provocation is recognised as common law defence. Under s3 Homicide Act 1957 it stateswhere 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 he question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury. Initially it is the judge who will decide whether there is enough evidence of provocation to be put before the jury. The provocation can, under S3 Homicide Act, arise from either things done or things said. In addition, the words or actions don’t need to have come from the deceased, even though in Sandra’s case they did (Peter), as was the case at common law, nor need they be directed at the defendant. In Doughty 1986, the Court of Appeal 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. In this case, the provocation was clearly directed at the defendant. There is also the case of Pearson 1992, in this case the Court of appeal held that the fact that ill-treatment of the defendant’s brother for over a period of eight years was enough provocation which the defendant could use in his defence after he killed his father with a sledgehammer. In the law there is what is called self induced provocation’, this basically refers whereby the defendant is the one who cause or triggers the provocation. This is illustrated by the case of Johnson 1989. In this case the accused started an argument in a night club of 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 D’s 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. Watkins L J for the Court of Appeal stated, ‘ in view of the express wording of S3 we find it impossible to accept that the mere fact that a D caused a reaction in others, which in turn led him to lose his self-control, should result in the issue of provocation being kept outside a jury’s consideration.’ In this case Sandra did not trigger the provocation, his husband was drunk and he called her names. It may be argued she provoked him when she started crying and he slapped her but then she was crying as a result of the painful words the victim had said (provocation can be things said). This clearly shows that the defendant did not trigger the provocation.
In the case of Doughty 1986 and Pearson 1992 the courts allowed the defence of provocation even though it was clear that the provocation was not directed to the defendants. It is clear that there is enough evidence to show that Sandra was provoked. Also the case of Johnson (1989) shows that a defendant can be the trigger of the provocation and still can use the defence of provocation. There is enough evidence to show that Sandra was provoked through the words used by the defendant (when he told her that she was a hopeless wife and an inadequate mother) Also she was clearly provoked when she was slapped across the face and I do not see any reason why she should be refused the use of the provocation defence.
Did D lose her self-control as a result of the provocative act?
There are tests for the jury to find out or to decide if the jury is satisfied that the defendant lost self-control as a result of the provocation. The acceptable test comes from the case of Duffy (1949) which is a case that was actually decided under the common law before the Homicide Act was passed. In this case there was an abused wife, who 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 now famous direction and decided that the woman’s actions didn’t fall within it, she was convicted. In this case the court stated that there must be a sudden and temporary loss of self-control, rendering the accused as subject to passion as to make him or her not master of his own mind for that moment. This same concept in this case of sudden and temporary loss of self-control has been approved by the Court of Appeal in later cases since the Homicide Act 1957 .This sets out that provocation is only available as defence in cases where the defendant suffers a sudden loss of self-control. The same happened in the case Thornton (NO 2)1992. In this case the defendant was also a wife who had reacted to his husband’s physical abuse after a lapse of time and had killed him whilst sleeping. It is very obvious from the facts given that Sandra’s reaction was a sudden loss of control. Her case can be distinguished from the cases of Duffy and Thornton because she did not wait for the defendant to sleep, she did not have time to think, she just reacted by using the statuette to hit the husband.
Another point that can be considered to help decide whether there was a sudden and temporary loss of self-control is the time lapse between the provocation and the killing. The defence of provocation is less likely to succeed if the time lapse between the provocation and the killing is long. This can be illustrated by the case Ibrams and Gregory (1981). In this case there were two defendants who had been terrorised by the ex-boyfriend of the girlfriend. On the 17th of October the girlfriend and boyfriend called the police who did nothing. On the 10th of the same month the two planned to attack the ex-boyfriend of which they followed on the 12th and they killed him. They were convicted of murder and the Court of Appeal upheld their convictions as there was no evidence of any provocation after the 7th of October. The gap of five days between this and the attack negatives their claims that they had lost their self-control. However, other cases have pointed out that there can still be a sudden and temporary loss of self-control even if a time gap. This can be shown by the case of Baillie (1995). In this case the defendant heard that the victim had supplied his sons with drugs and was now threatening them with violence. The defendant then armed himself with a sawn-off shotgun and a cut-throat razor and drove to the drug dealer’s home and shot him. He quashed but this conviction was quashed and the Court of Appeal ordered that there be a re-trial. It was held that even though there are factors such as a lapse of time which tend to equate with a desire for revenge, it is still possible for there to be a sudden and temporary loss of self-control. It is however argued that this need for a sudden loss of self-control makes the defence more available to men than women than women. This is probably because men are more likely than women to respond quickly to violence. The jury are less inclined to trust 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. The defendant Sandra need not worry about the time lapse because it is not present, hers was a sudden reaction, loss of control. She was provoked by the victim’s words and actions, there was no time lapse, and she just reacted there and there, no cooling off time.
The jury must be satisfied that a reasonable man might have acted in a similar way
There is also a test to determine whether a reasonable man would have been affected by the provocation. However, the phrase reasonable man has been known to cause problems within the law. Before the passing of the Homicide Act, the common law ruled that the reasonable man was any adult who was normal both mentally and physically. This rule has appeared to be unfair as shown by the case of Bedder v DPP 1954. In this case the defendant had been an impotent man who had a prostitute taunting him because of that. He then stabbed the prostitution to death and his conviction was upheld. This is because under the reasonable man test, the jury had to ignore the fact of impotence and the effect it would on provocation. However in a different case this case was overruled. In the case of Camplin (1987), the defendant was a 15 year old boy who had been sexually abused by old men who had then laughed at him causing the defendant to hit him with a chapatti pan resulting in his death. At the trial the jury had been asked to ignore the age of the boy and had convicted him of murder. On Appeal the House of Lords overruled Bedder, allowing the appeal substituting a conviction of manslaughter. Because of the comments that were made in the House of Lords, it was clear that there were two parts to the reasonable man test in s 3 of the Homicide Act 1957. The test is, (1) for the purposes of self-control, the level is the power of self-control to be expected from a person of the age and sex of the defendant but (2) for the gravity of the provocation, the reasonable man shares such of the defendant’s characteristics as the jury think would affect the gravity to the defendant.
The use of the word characteristics and the question of which of these may or may not be taken in to account, has caused confusion among both judges and juries, leading unavoidably to more appeals. In the case of Newell 1980, the accused had killed the victim by hitting him with a heavy ashtray, after the friend made homosexual advances to him. The D was an alcoholic who, at the time of the attack, was recovering from a drug overdose. He was in a bad emotional state because his girlfriend had recently left him. The Court of Appeal held that, when looking at the characteristics of the accused, the jury shouldn’t take into account permanent ones and ones that actually relate to the provocation. Therefore the effects of his drinking and drug taking couldn’t be considered. It was decided that alcoholism could be a permanent factors, which in some situations could be taken in to account, but not in this case because it was unrelated to the actual attack. The appeal against the murder conviction was therefore unsuccessful. However as much as this appeal was unsuccessful, this case appeared to mark a turning point where a greater range of factors could be ranked as characteristics that could be attributed to the reasonable man.
Now the question in Sandra’s case is, would a reasonable person with the same characteristics as Sandra have acted in the same way she did. Her doctor had put her on medication as she was depressed by the arguments she had with the husband. The fact Sandra was depressed, can help conclude that a reasonable person would not have reacted the way she did. This basically means that if she had been ok and not under depression she would not have reacted the way she did. In the case of Smith (1998) Lordships decided that the trial judge had made a mistake by informing the jury that the effect of the defendant’s depression on his powers of self-control was not material. Therefore characteristics other than age or sex attributable to a reasonable man for the purposes of S3 Homicide Act are important not only to the gravity of the provocation but also to the standard of self control to be expected. This means that Sandra’s depression could be considered as one of these characteristics.
Diminished Responsibility
Under section 2(1) of the Homicide Act, it is stated that, ‘Where a person kills or is a party to the killing of another he shall not be convicted of murder if he was suffering from such abnormality of the mind as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing’. It is left for the defendant to prove this defence but the defendant need only prove it on the balance of probability. Basically he needs to prove that he was suffering from an abnormality of the mind which was caused by arrested or retarded development of mind or an inherent cause or disease or injury and that the abnormality of mind substantially impaired his mental responsibility for the killing. I shall then go on to discuss these in detail and figure out if this defence is available to Sandra.
There must be an abnormality of the mind
Abnormality must be caused by ‘arrested or retarded development of mind or any inherent causes or induced by disease or injury’. This means that the abnormality must have been caused by an inside source, such as some malfunctioning of the mind. Evidence of mere intoxication caused by drinking or drug taking ( outside sources), cannot be put forward for this defence, unless the drinking or drug taking has actually damaged the mind itself, or where there was such a craving for drink or drugs that it could not be controlled. The phrase ‘abnormality of the mind’ covers a wide range of situations. There is a case that describes what abnormality of the mind is. In the case of Byrne (1960) the Court of Appeal described it 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 defendant was a psychopath who strangled a young woman and then carried out horrific mutilations on her body. The claimed that he was suffering from diminished responsibility and had killed the woman while in the grip of an irresistible, uncontrollable impulse caused by his perverted sexual desires. Medical experts testified that he was indeed a sexual psychopath and they described his condition as amounting to partial insanity and the Court of Criminal Appeal approved of this. They held that abnormality of the mind was wide enough to cover the perception of physical acts and matters, the ability to form a rational judgment as to whether an act is right or wrong and the ability to exercise will-power to control physical acts in accordance with that rational judgement. In another case, the case of Seers (1984), the Court of Appeal allowed diminished responsibility to cover a wide range of mental conditions including depressive illnesses, paranoia, epilepsy, pre-menstrual tension and battered wives syndrome. The defence has been allowed for defendants who have killed while in a fit of jealousy like in the case of Miller (1972) and for women suffering from post menstrual tension shown by cases such as Smith (1982) and Reynolds (1988). Chronic depression may also be enough, as was the case in Seers and Gittens (1984).
Abnormality must arise from an inside source
In the case of Seers (1984), the Court of Appeal allowed diminished responsibility to cover a wide range of mental conditions including depressive illnesses, paranoia, epilepsy, pre-menstrual tension and battered wives syndrome. Surely this must apply to the defendant Sandra because she is suffering from depression and is actually on medication. Is that not proof enough to show that show has a depressive illness? Also we can argue that she is suffering from battered wives syndrome as the husband has been battering her for quite sometime. The medication for depression should be able to cover the required medical evidence; Sandra’s doctor can testify that the defendant felt depressed. She felt trapped in a relationship which is most probably the result of the battering therefore the defendant was suffering from battered wives syndrome. Battered wives syndrome is a psychological problem and it can be very well argued that it is an inside source. In the case of Hobson 1998, it was held by the Court of Appeal 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. It is very clear in Sandra’s case that she turned to her tormenter, the man she called as husband who had been physically abusing her for a number of years when they argued.
The cases of Ahluwalia and Thornton show the use diminished responsibility in respect of such physical abuse in retrials of two battered wives. In Thornton 1996, the wife had gone to the kitchen and sharpened a knife to use as defence and then came back, tried to wake the husband to go to bed of which he refused and she had stabbed him in the stomach with the knife. This case reached the House of Lords and the defence of diminished responsibility was accepted and the conviction of murder was changed to manslaughter. In this case the defence of diminished responsibility had been refused as it was held that the fact that the defendant had to go fetch and sharpen a knife after the argument did not indicate any loss of self-control. If the defendant in this case could use this defence then I do not see any reasons why Sandra can use it. Sandra did not go away to get the statute, she just grabbed it from a mental self that was next to her and used it, that was sudden loss of control and it came from inside as she was depressed.
In the case of Aluwhalia 1992 the defendant was a wife who had been a subject of physical abuse from her unfaithful husband for a number of years. The defendant was threatened by a further beating in the morning, she waited for the husband to sleep and then she poured petrol on him and set him alight, he died from the injuries. The defendant was convicted of murder. After some protesting, the defendant was convicted of manslaughter because the diminished responsibility caused by battered wives syndrome was accepted. The defendant can use this as defence because for a period of time her anger was building, she had a slow burn effect. And like Lord Chief Justice Taylor said, the self control at the end of the period had to be a sudden one. In the case of Aluwhalia the defendant had had time to cool off whilst the husband was asleep before she set him alight. However in Sandra’s case it was a sudden loss of control and so the defendant should be able, and should be allowed to use this as a defence as the defendant in Aluwhalia used it after there was no sudden loss of control.
This must substantially affect D’s mental responsibility for her actions.
The abnormality of mind must substantially impair the defendant’s mental responsibility for his acts and omissions in doing or being a party to the killing. The defendant, Sandra had been a victim of violence from the husband for a number of years. The fact that the defendant was exposed to violence from the husband for a long time should be enough to affect her mentality. From what I understand from the given facts, the defendant has been suffering and her anger has been building up and the facts do not suggest the defendant ever fighting back physically. This must be proof enough that the defendant just snapped, she was not thinking, her mentality did not allow her to control her own actions, her mentality was responsible for her actions, for her killing the husband. In the case of Byrne the appeal court said that the question of whether the impairment was substantial was a one of degree and that it was for the jury to decide. The case of Lloyd (1967) established that substantial does not mean ‘total’ nor ‘trivial’ or ‘minimal’ but something in between. However, this is a question of the fact and the judge can withdraw the point from the jury if there is no evidence for it to conclude that the defendant’s mental responsibility was substantially impair, substantially damaged.
In Sanders 1991, the D’s conviction for the murder of his long standing mistress was upheld by the Court of Appeal, despite the fact that 2 psychiatrists had testified that the accused was suffering from reactive depression amounting to an abnormality of mind. The jury convicted him despite such evidence, because it was shown that he had written letters to others stating that he was going to commit suicide but hadn’t written to his mistress, or included her in his will.
In Campbell 1997, the D did succeed in pleading diminished responsibility at his second appeal. He 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 frontal lobe damage and at his second appeal the court heard the evidence of 2 eminent psychiatrists in this field. Lord Bingham C J stated:
The defendant Sandra was hurt and obviously felt angry when she was called a useless mother and wife. The slap she got was the final straw. She was crying because of him and he made matters worse when he had the nerve to insult her physically. The defendant was on medication, she was under stress because of the husband and the further insults that day caused her to loss control. However the medication she got from the doctor for her depression is not evidence enough
Conclusion
I would advice Sandra to use the provocation defence as there are all three elements of it, clear and straight forward. The defence of diminished responsibility seem too complex and is more likely to be ignored by the jury. The jury may not look very well at the evidence of the diminished responsibility bearing in mind she is the one who has to proof it rather than the prosecution its non existence And yes if she had waited for the husband to sleep it would have been different. She may not be able to succeed with both of the defence although in some case like Aluwhalia 1992 diminished responsibility was accepted as a defence although clearly there was no sudden loss of self-control. The defendant, Sandra is therefore in a better position than other women in the cases that I have discussed as they had no sudden loss of self control like she did. There was a time lapse between the moment of provocation and the actually killing.
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