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?

Essay written by Suzie Davis (Nov 2004

It would be possible for Sandra to plead a special and partial defence to the charge of murder. There would be two possible defences available to her and I will go on to examine each one and then advise her as to what would be the best course of action.

PROVOCATION

The first defence that Sandra could plead is that of provocation. Provocation exists at common law, however the common law rule has been modified by s.3 of the Homicide Act 1957, which states:

‘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 said or both together) to lose his self-control, the question whether 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 both done and said according to the effect which, in their opinion, it would have on a reasonable man.’

As a result of the Homicide Act there are three criteria that must be fulfilled for a plea of provocation to succeed. It is vital that all three parts are fulfilled as is illustrated by Acott (1997) where the defendant killed his mother in a frenzied attack but there was no evidence why. It is therefore not enough for the defendant just to show he/she lost their self-control.

(1) Evidence that D was provoked

In Doughty (1986) it was found provocation could be something ‘done’ or ‘said’. In relation to Sandra’s plea the provoking acts would be Peter slapping her and calling her an inadequate mother. She may also be successful in claiming provocation as a result of the previous domestic violence, as the evidence of provocation is not confined to the last act or word before the killing.

Sandra would not have a problem proving this limb of provocation, as there is clear evidence she was indeed provoked by both things done and said.

(2) D must lose his/her self-control

It is necessary to show that there was a certain degree of loss of self-control when the killing occurred. This loss does not require the defendant to completely lose control to the point that they are no longer aware of their actions as then they would not have intended to kill and thus not be guilty of murder. In Richens (1993) the Court of Appeal confirmed this stating that ‘it is not necessary to show that there was a complete loss of self-control, in the sense that the defendant did not know what he was doing, or was not able to stop himself acting in the way he did. It was sufficient that the defendant was unable to restrain himself.’

In Duffy (1949) the courts insisted that provocation should not provide a defence to anyone who acted out of a desire for revenge. As a result the following definition was constructed:

‘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.’

There was some degree of conflict over this requirement as in recent cases it has prevented women who have killed violent husbands a defence. Although they may have been provoked, the anger builds up slowly (‘slow burn reaction’) until there is suddenly an outburst, maybe some time after the last provoking incident. This was the case in Thornton (1992).

Thornton’s marriage had quickly degenerated and her husband had begun to physically abuse her. He was extremely jealous and possessive and a heavy drinker. One night after returning from work she found her husband lying on the sofa. He called her a ‘whore’ and as a result she went into the kitchen, found a bread knife, sharpened it, and returned to the living room. Her husband said he would kill her when she was asleep, to which she replied she would kill him first and stabbed him in the stomach. She was convicted of murder and her appeal dismissed, her years of provocation were ignored, as at the crucial time she was not suffering a ‘sudden temporary loss of self-control’. The fact she had gone to the kitchen to fetch, and sharpen the knife were crucial factors.

After several years imprisonment a new appeal was put forward with the plea of provocation, but it was dismissed, however a plea of diminished responsibility was accepted as the condition known as ‘Battered Woman’s Syndrome’ had become recognised as an abnormality of mind.

In Sandra’s case there was only a fraction of a time gap between she was last provoked and when she responded. This would help her plea of provocation and may indeed allow the judge to distinguish from the above case and allow a defence of provocation to succeed.

However, if Sandra had indeed waited until Peter was asleep her defence may fail at this point. The Duffy test was established to prevent it being used as a defence to a revenge killing as was cited by Devlin J:

‘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.’

Although there would still be the chance her defence would succeed as in Ahluwalia it was said that simply because there was a delay it did not mean that this would immediately cause the defence to fail. However, ‘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.’

(3) The jury must be satisfied that the reasonable man would reacted to the provocation as the defendant did

The jury should consider how the reasonable person would react to the provocation, as it was understood by the defendant. Before the Homicide Act 1957, judges held that the reasonable man was an adult with normal physical and mental attributes. This led to some harsh decisions as illustrated in Bedder v DPP (1954). A prostitute taunted D about his impotence with the result that he lost his self-control and stabbed her to death. The House of Lords upheld the murder conviction stating that the jury should consider how a reasonable man would react to the taunts, and that the reasonable man would not be regarded as impotent. This is obviously not a sensible approach to the defence of provocation and thus in Camplin (1978) the decision was reversed. The House of Lords held that the Homicide Act of 1957 had overruled Bedder.

Lord Diplock, in Camplin, gave a model direction concluding that:

‘A proper direction to a jury… should state… that 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 circumstance be provoked to lose his self-control but also whether he would react to the provocation as the accused did.’

However this was overruled in Smith (2000) and Weller (2004) and the current law is now such that the test is whether D ‘should reasonably have controlled himself’ and any characteristic of D is potentially relevant.

A final point to consider is that the jury must consider the provocation in the light of the defendant’s history. The courts have previously referred to the concept of ‘cumulative provocation’ where a long series of incidents, each a minor in itself, causes the defendant to lose her self-control after being provoked by the ‘last straw’. This would help Sandra’s defence as it could be put to the jury that the years of domestic violence led to the sudden outburst, which resulted in Peter’s death.

It is possible Sandra would succeed with the defence of provocation as she does fulfill the three elements of provocation. It would be possible for the judge to put the defence to the jury and for them to opt in favour of Sandra. Previous cases similar, though not identical, in facts have failed but that was as a result of a time gap between the provocation and the reaction. In Sandra’s case as long as she did not wait for Peter to fall asleep she stands a fairly good chance of succeeding with this defence especially as the plight of battered women becomes more recognised.

DIMINISHED RESPONSIBILITY (DR)

If the defence for any reason fails there would be the possibility of Sandra also putting forward a plea of Diminished Responsibility. As with provocation it only provides a partial defence and thus reduces the sentence from murder to manslaughter. This does allow the judge discretion in sentencing, as if convicted of murder Sandra would face a life sentence, whereas if convicted of manslaughter the judge can impose what they deem an appropriate sentence.

Diminished Responsibility is defined in Section 2(1) of the Homicide Act 1957:

‘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 a 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 party to the killing.’

There are three requirements that must be met for a defence of diminished responsibility to succeed. The burden of proof of establishing the defence rests with the defendant but only on a balance of probabilities.

(1) D was suffering from an abnormality of mind

The decision of whether the defendant was suffering from an abnormality of mind is one for the jury to decide, however it will often be based on medical evidence. In the case of Byrne (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 and mutilated the body. He was originally convicted of murder but the Court of Appeal substituted a conviction of manslaughter. Lord Parker CJ said that ‘Abnormality of mind… means a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal.’

It has been noted that the defence of Section 2 covers ‘the mind’s activities in all its aspects.’ In Hobson (1997), the Court of Appeal held 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. This was shown in the cases of Ahluwalia (1992) and Thornton (1992) where defences of provocation failed but defences of diminished responsibility were accepted.

This would allow Sandra a very good chance at a successful plea of diminished responsibility as previous precedent indicates that ‘battered woman’s syndrome’ can indeed cause an abnormality of mind.

(2) The abnormality was caused by an inside source

The abnormality can arise in one of three ways:

• Arrested or retarded development of mind – for this the condition must be permanent
• Any inherent causes – includes all mental disorders, which do not have an external cause, and includes functional disorders
• Induced by disease/injury – includes diseases of the brain, battered woman’s syndrome (BWS), pre-menstrual syndrome, post-natal depression, and stress produced by caring for a terminally ill relative

Sandra could chose to base her defence of diminished responsibility on the fact that she is suffering from BWS and that she is also suffering from depression. The depression is obviously quite serious as her doctor has prescribed medication, and under Section 2 depression is provided for as an ‘inherent cause’. This was confirmed in the case of Seers (1984) where the defendant suffered from a depressive illness and was convicted of murder. The judge had directed the jury that the defence of diminished responsibility was only available to those who were ‘partially insane’ or ‘on the borderline of insanity’. The Court of Appeal substituted manslaughter, as whilst a depressive illness could amount to an abnormality of mind, few people would consider it on the borderline of insanity.

(3) The abnormality substantially impaired D’s mental responsibility

What needs to be shown is not necessarily that the defendant was incapable of controlling his behaviour, but rather that it was subsequently more difficult for him to control his behaviour than it would have been for other people.

The expression ‘diminished responsibility’ does not actually appear in Section 2, but rather the phrase ‘substantially impaired… mental responsibility’. In Byrne the Court of Appeal said the question was one of degree and therefore one for the jury.

In Lloyd (1967) 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?’

If the circumstances of the case were such that Peter had fallen asleep before Sandra killed him then it is possible a plea of provocation would fail. However, if a plea of diminished responsibility was put forward this is unlikely to fail due to this as previous cases, which are similar in facts have been successful. For example, in the case of Ahluwalia (1992) a plea of provocation was dismissed, however a plea of diminished responsibility was accepted.

Ahluwalia was an Asian woman who had entered an arranged marriage with her husband. He was violent towards and attempted once to kill her. One evening the husband threatened to attack and once he fell asleep Ahluwalia poured petrol over him and set it alight. The husband died and she faced a murder charge. The trial judge told the jury it had to be shown that she had suffered a sudden and temporary loss of self-control. She appealed, inter alia, on the ground that such a direction was incorrect. The Court of Appeal did not feel the direction was incorrect, however they did order a retrial as evidence of diminished responsibility was not properly left for the jury to consider.