LA2-4 - Murder and Manslaughter Homework
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?
Murder and Manslaughter Problem Question
Written by Natasha Wallis.
Introduction
In this essay I will discuss the pleas that Sandra could possibly use in order to reduce her charge of murder to a charge of manslaughter. In order to do this I will examine the defences under the Homicide Act 1957 which would allow her to make a plea for manslaughter. In doing so I will mention relevant case law and look at the elements required for these defences.
Murder
Murder is a common law offence which has been defined by the decisions of judges in cases and the accepted definition 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”. Express malice aforethought refers to the intention to kill and implied malice aforethought refers to the intention to cause grievous bodily harm. The malice aforethought is the mens rea of murder and the actus reas is that the defendant killed a reasonable creature in being under the Queen’s Peace and the killing was unlawful.
If Sandra is convicted of the offence of murder then she will receive a mandatory life sentence. The judge is unable to give a different sentence in this case.
In order to avoid a conviction of murder and reduce this conviction to that of manslaughter, Sandra needs use the defences set out in the Homicide Act 1957.
Voluntary Manslaughter
The Homicide Act 1957 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 suicide pact.”
These defences, however, are only partial defences, meaning that the defendant is not completely acquitted. The judge has discretion in what sentence he imposes as well, meaning that he can choose any sentence he sees as suitable.
It would not be possible for Sandra to use the plea of a suicide pact as it is clear that neither the victim nor the defendant attempted to commit suicide. However, use of the defence of diminished responsibility or provocation may be successful, and I shall now go on to discuss them.
Diminished Responsibility
The defence of diminished responsibility is found in S2 of the Homicide Act 1957. The burden of proving the defence is on the defendant, but they need only prove it on the balance of probabilities. If Sandra is to plead diminished responsibility she must prove that she was suffering from an abnormality of mind, which was caused by arrested or retarded development of mind or an inherent cause or disease or injury and the abnormality of mind substantially impaired her mental responsibility for the killing.
An abnormality of the mind
It is up to the jury to decide whether the defendant was suffering from an abnormality. In the case of Byrne (1960), the Court of Appeal stated that abnormality of the mind could be described as, “a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal”. In the case of Byrne, the defendant was a sexual psychopath who strangled a woman and then mutilated her body. There was medical evidence that because of his condition, he was unable to control his perverted desires. He was convicted of murder but the Court of Appeal reduced his conviction to manslaughter as it was held that his condition came within the definition of diminished responsibility. Diminished responsibility covers a wide range of mental conditions, including depressive illnesses, paranoia, epilepsy, pre-menstrual tension and battered wives’ syndrome.
This is relevant to Sandra as she suffered from battered wives’ syndrome since Peter often hit her, as well as depression for which she had medication. These are considered by Lord Parker CJ as “an abnormality of the mind” according to the case of Byrne. It has also been shown in the case of Ahluwalia (1992) that the Court of Appeal is willing to allow an appeal on the basis of diminished responsibility for battered wives’ syndrome.
Abnormality must be caused by an inside source
This refers to the fact that the abnormality must be caused by “a condition of arrested or retarded development of mind or any inherent cause induced by any disease or induced by injury.” Inherent cause means one which comes from within the defendant, and is not from an outside factor such as alcohol or drugs or a traumatic event or environmental factors.
In the case of Seers (1984), the defendant who was suffering from chronic reactive depression, killed his wife. The trial judge had directed the jury that the defence was only available to those who were “partially insane” or “on the borderline of insanity.” The Court of Appeal quashed Seers conviction for murder and reduced it to one of manslaughter. This states that the defendant therefore 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. Similarly, in the case of Gittens (1984), the defendant suffered from depression for which he had medication. He then clubbed his wife to death and strangled his step-daughter. The Court of Appeal quashed his murder conviction and reduced it to a conviction of manslaughter as the trial judge had misdirected the jury on the effect of intoxication in the case. Here, it was therefore held that chronic depression could also pass as an abnormality of the mind. It is thus evident that Sandra can use depression as a reason for her “abnormality of the mind”.
In the case of Ahluwalia (1992), the Court of Appeal allowed an appeal against a murder conviction on the basis diminished responsibility due to battered wives’ syndrome. Therefore, the courts have been willing to accept battered wives’ syndrome as an abnormality of the mind caused by an inside source. This was similar to the case of Thornton (No. 2) (1996), where the defence of diminished responsibility succeeded as it was accepted that the defendant had suffered from “Battered Woman Syndrome”. In the case of Hobson (1998), it was 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. Battered woman’s syndrome is seen as a factor affecting the defendant’s state of mind. Therefore, it is very likely that the fact Sandra was suffering from battered woman syndrome and the fact she suffered depression would be used in her favour in the defence of diminished responsibility, as both of these are considered as an “abnormality caused by an inside source”.
This must substantially affect the defendant’s mental responsibility for her actions
In the case of Byrne (1960), the appeal court said that the question of whether the impairment was substantial was one of degree and although medical evidence was not irrelevant that it was for the jury to decide. The requirement for medical evidence was seen in the cases of Sanders (1991) and Campbell (1997), where the defendant was successful in pleading diminished responsibility at his second appeal due to epilepsy and front lobe damage. Also, the Court of Appeal can quash a conviction if there is strong medical evidence for the defence and the jury ignores it, it does not matter if the killing was premeditated if the provisions of 2.2(1) are fulfilled as shown by the case of Matheson (1958).
The case of Lloyd (1967) stated that “substantial” does not mean “trivial” or “minimal”, yet it does not mean “total”. It is something in between and is for the jury to decide if the defendant’s mental responsibility is impaired and, if so, whether it is substantially impaired. Therefore, in order to prove that her abnormality of the mind affected Sandra’s mental responsibility, there must be medical evidence. Sandra was prescribed medication by her doctor for the depression that she suffered and this should be enough to show the jury that her mental responsibility was “substantially affected”. However, in order to obtain proof over whether or not the battered woman syndrome substantially affected her mental responsibility a psychiatrist’s opinion may be required as it is questionable as to whether there is enough evidence of this. This should be successful as it was in the case of Hobson (1998).
Provocation
The defence of provocation is set out in s3 of the Homicide Act 1957. It states that; “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”. In order for Sandra to use the defence of provocation, there are three elements which must be proved.
Evidence that the defendant was provoked
The Homicide Act 1957 states that provocation can be things said or done which caused the defendant to lose their self control. In the case of Doughty (1986), the defendant killed his baby because the child would not stop crying. His conviction for murder was quashed as 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”. The case of Davies (1975) involved the actions of the wife’s lover in going to meet her which provoked the defendant to kill his wife. It was taken into account when the husband lost his self control.
In the case of Sandra, it can be argued that the provocative act began with the frequent abuse from Peter, and the actions that Peter took in returning home drunk and starting an argument with Sandra calling her a “hopeless wife and inadequate mother” would be enough to have caused the provocation. Also, the final act of provocation where Peter slapped Sandra across the face could be considered as what made her lose her self control and kill him. She was provoked by things that Peter had both said and done, which fits within the definition of the Homicide Act 1957.
Did D lose her self control as a result of the provocative act?
This must be proved to allow for the defence to succeed and the defendant themselves must show that the provocation so strongly affected them that it was enough to cause them to lose their self control. The accepted test comes from the case of Duffy (1949), where the court stated 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.” This means that provocation is only available as a defence where D suffers a sudden loss of self-control.
The case of Duffy (1949), involved an abused wife, who had a quarrel with her husband and then left the room and changed her clothes. When her husband was in bed she attacked him with a hammer and a hatchet. The defendant’s conviction for murder was upheld since the defendant had what is known as a “cooling-off period” and it was held that the defendant must have a “sudden and temporary loss of self control”. In Sandra’s case, there was no “cooling-off period”, when Peter slapped her face and told her to “pull herself together” she acted almost immediately which shows evidence that there was a “sudden and temporary loss of self-control”.
The jury must be satisfied that a reasonable man might have acted in a similar way
Under s3 of the Homicide Act 1957, the jury must take into account the effect the provocation would have on a reasonable man. Before this Act, the courts ruled that the reasonable man was an adult who was normal both mentally and physically. However this ruling often seemed unfair, for example if a person is suffering from a disorder, this test fails to recognise that a person suffering from the same disorder may have reacted in the same way but as it is in objective test, it only looks at the way a normal person not suffering from such a disorder would have reacted. An example of a case is that of Bedder v DPP (1954). In this case a prostitute had taunted the defendant about his impotence problem and he stabbed her to death. His conviction for murder was upheld because under the “reasonable man” test the jury had to ignore the fact of impotence and the effect it would have on the provocation.
In the case of Camplin (1978), the test was changed to a more subjective one and according to Lord Diplock; “…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, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self control but whether he would react to the provocation as the accused did”. The case of Camplin (1978) involved a 15 year old boy who had been sexually abused by an older man who had then laughed at the defendant. Camplin had reacted by hitting the man over the head with a chapatti pan. At the trial the judge directed the jury to ignore the boy’s age and to consider what effect the provocation would have had on the reasonable adult, and he was convicted of murder. However on appeal, the House of Lords overruled Bedder and allowed the appeal reducing the conviction to manslaughter. In Sandra’s case, the fact that she suffered from depression and had medication for this may be helpful. If age and sex can be considered then mental characteristics such as that of depression must be considered also. Cases which would help Sandra with this are McGregor (1962), Newell (1980) and Smith (Morgan James) (2000). In the case of McGregor it was decided that certain medical characteristics could be taken into account when considering what a reasonable person would have done. This can include depression as a medical condition in Sandra’s case. The case of Newell allowed for further characteristics to be considered when deciding upon the qualities of a reasonable person. Further characteristics of Sandra could therefore be taken into account. The case of Smith involved the defendant who was suffering from a depressive illness which might have reduced his threshold for reacting to provocation. During an argument with a friend the defendant had picked up a kitchen knife and stabbed the victim. The trial judge ruled that this characteristic was not relevant to the reasonable mans loss of self control and he was convicted of murder. The Court of Appeal allowed the defendants appeal against his conviction for murder and when the prosecution appealed to the House of Lords their appeal failed and the Court of Appeal stated; “are characteristics other than age and sex, attributable to a reasonable man for the purpose of s3 of the Homicide Act 1957 relevant not only to the gravity of the provocation to him but also to the standard of self-control to be expected?”. This was reaffirmed by the case of Weller. In this case the defendant lived with his girlfriend. They rowed frequently and the victim said she wanted to end the relationship. Following a heated argument, Weller strangled her to death in their home. 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 when he attempted to appeal on the basis that the judge should have drawn the jury’s attention more specifically to his jealous and possessive nature his appeal was dismissed.
A case which supports Smith (2000) is that of Rowland (2004). Here the defendant had killed his wife by stabbing her repeatedly. He pleaded provocation as his wife had taunted him about a medical condition he had developed which caused a bend in his penis and also the couple had had a heated argument about the breakdown of their marriage in which his wife had stuck her fingernails in his face. The trial judge directed the jury to consider whether a reasonable man of Rowland’s age and sex and with his condition of Peyronie’s disease might have lost self-control. The defence had decided against using the evidence available to them that Rowland was suffering reactive depression believing that it was inadmissible. However, after the decision in Smith, the case was readmitted to the Court of Appeal were a conviction of manslaughter was given.
The case of Smith is very similar to Sandra’s case, as the defendant suffered from depression, argued with their spouse on the night of the killing and was taunting them and then attacked them which caused them to lose their self-control as in Sandra’s. Sandra’s characteristics must be looked at when asking whether or not a reasonable man would have acted in a similar way as the defendant did. Firstly, Sandra’s mental characteristics must be looked at. It can be argued that Sandra’s psychological characteristic of suffering from depression can be taken into account, especially since she was prescribed medication. The fact that Sandra suffered from battered woman syndrome should also be taken into account as someone suffering from this may not be considered as a “reasonable person” and so may have acted in a similar was as Sandra in these circumstances.
Conclusion
Overall I feel that Sandra has a good chance of reducing her charge from murder to manslaughter. I would advise her to use the defence of provocation as there is clear evidence that she has been provoked. There were various provocative acts leading up to the killing and then the final provocative act of Peter slapping Sandra. It is evident that Sandra lost her self control as a result of Peter’s provocation as she acted instantaneously and had no time to consider what she was doing. There is evidence that a reasonable man may have acted similarly to Sandra as she was suffering from both depression and battered wife syndrome. If she pleaded diminished responsibility she may have a chance of still succeeding, however I believe that she has a stronger case if she argues provocation. One problem with diminished responsibility is there may not be enough medical evidence present regardless of the medication as more evidence may be required.
There are however various problems with both of these defences and there is a need for reform. For example, provocation allows a defence for anger, when there is no defence if the defendant kills in fear, despair or compassion. With diminished responsibility, the burden of proof should not have to be on the defendant as it puts defendants pleading this defence at a disadvantage, whereas in most other defences the defendant need only raise the issue and the prosecution has to disprove it.
What if Sandra had waited until Peter had fallen asleep in his chair and then killed him with the statuette?
In these circumstances, one of the points that may be looked at to decide whether there was a “sudden and temporary” loss of self control is the time lapse between the provocation and the killing if Sandra was to use the defence of provocation. The longer the time lapse between the two, the less likely that the defence will succeed. This is illustrated in the case of Ibrams and Gregory (1981). In this case the ex-boyfriend of Ibrams’ current girlfriend had been visiting the flat which Ibrams and the girlfriend shared, and had been terrorising them. On 7th October Ibrams called the police but they did nothing. On the 10th the two defendants made a plan to attack the ex-boyfriend and they carried this out and killed him on the 12th. The Court of Appeal upheld their convictions because there was no evidence of any provocation after 7th October and the gap of 5 days between this and the attack negatived their claims that they had lost their self-control. This does not however, mean that there can never be a time lapse. For example, in the case of Baillie (1995), the defendant discovered that a drug dealer had supplied his sons with drugs and he drove to the drug dealer’s home and shot him. The Court of Appeal quashed his conviction for murder and ordered a retrial. It 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. Looking at these two cases, it is possible that that if Sandra claimed provocation the outcome could go either way depending on her individual circumstances.
A case similar to this situation is Ahluwalia (1992). Here, the defendant had been physically abused for many years by husband. One night, her husband, before he went to bed, threatened her with violence. Later, after her husband was asleep, the defendant poured petrol over him and set him alight. She was convicted of murder and appealed. The Court of Appeal did not allow her appeal on the basis of provocation. It pointed out that the defendants reaction to the provocation had to be “sudden” rather than “immediate” and the longer the delay, the more likely that the act had been deliberate, so that the prosecution could negative the defence of provocation. The Court of Appeal did, however, allow her to appeal on the basis of diminished responsibility. Due to the similarity of these cases, it is likely that the outcome would be similar as well. As a result, in these circumstances I would advise that Sandra pleaded diminished responsibility rather than provocation as this defence would appear to be more effective for this particular case.