Murder and Manslaughter problem question

Written by Steven Dibley - Nov 2004

Introduction

There is no statute in this country, which defines murder. Instead, the law of murder is a common law offence, which has been developed through a series of important judgements culminating in the House of Lords decision in Woolin (1998). It is appreciated that in order for a murder conviction to be enforced the defendant (D) must have fulfilled all elements of the actus reus and mens rea. That is, causing the death of another human being under the Queen’s peace within any country of the realm with malice aforethought (either express or implied). The actus reus of murder is exactly the same for manslaughter but if both states of mind are missing the defendant cannot be convicted of murder but may well be facing liability for involuntary manslaughter. Contrary to popular misconception, s.1 of the Homicide Act 1957 does not define murder. The act mainly deals with a number of special defences that can be pleaded to the charge. To answer this problem question I will be considering two of these; provocation, a common law defence, which is regulated by the 1957 Act and diminished responsibility (DR), a statutory defence, introduced by s.2 of the 1957 Act. Both are only a defence to murder and can only reduce D’s liability to manslaughter. There must be some evidence of provocation, which is a question for the judge, before the defence can be left to the jury as per Miao (2003). It is then up to the prosecution to disprove the defence beyond all reasonable doubt. The burden of proving the defence of DR rests with the defence on the balance of probabilities.

Provocation:

(1) Evidence that D was provoked

Under the 1957 Act, provocation need not be something illegal, or even wrongful. It simply has to be something ‘done’ or ‘said’. Hence, Sandra has been provoked by both something ‘said’ after Peter told her that she had been a ‘hopeless wife’ and an ‘inadequate mother’. She was also provoked by something ‘done’ as Peter slapped her face. It stands that after the Court of Appeal’s decision in Doughty (1986) the decision as to whether the evidence of provocation is enough to justify the defence should be left to the jury. In Doughty, D had been convicted of murdering his 19-day-old son after the child would not stop crying. The C of A held that it should have been left to the jury to decide whether the baby’s crying was provocation by ‘things done’. Therefore, it would be up to the jury to decide whether Peter calling Sandra a ‘hopeless wife’ and an ‘inadequate mother’ and slapping her across the face was enough to suggest Sandra was provoked into her response. Indeed, looking at case law such as Davies (1975) where D was provoked by his wife’s lover into shooting her simply by walking to her place of work, it would appear that the evidence of provocation in this case is certainly of a high degree.

(2) Did D lose her self-control as a result of the provocative act?

The next element that must be proven is that Sandra lost her self-control as a result of the things ‘said’ and ‘done’. That is to say, she smashed the statuette on Peter’s head because of the provocative way in which he behaved towards her.

When looking at whether Sandra had lost her self-control, the direction of Devlin J in Duffy (1949), needs to be considered. The definition in Duffy allows the defence of provocation to be used where 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’

It ensued that Sandra did not premeditate or delay her actions in anyway. Therefore, she can be seen to have met the criteria of this test.

(3) The Jury must be satisfied that a reasonable man might have acted in a similar way

It follows that a jury must be satisfied that a reasonable man might also have lost his self-control if subjected to the same provocation and acted in the same way.

Before, the Homicide Act 1957, judges, at common law, consistently held that the reasonable man was an adult with normal physical and mental attributes i.e. this was purely an objective test as per Bedder v DPP (1954). In this case a prostitute taunted D about his impotence, a sensitive issue, with the result that he lost his self-control and stabbed her to death. The H of L held that the jury had to consider the effect of the provocation on a person with no sexual hang-ups.

However, the first move towards softening the objective test occurred in DPP v Camplin (1978), where Mohammed Khan laughed at D having sexually abused him. Subsequently, D proceeded to hit him twice over the head with a chapatti pan, which killed him splitting his skull open in the process. The murder conviction was quashed in the C of A, a decision maintained in the H of L as the trial judge had directed the jury to consider the effect that Khan’s provocation may have had on the reasonable man, as opposed to a reasonable 15 year old boy. The jury should have been told to assess the impact of the provocation on a reasonable 15-year old boy.

The test continued to soften significantly through many cases culminating in the H of L’s decision in Smith (2000), where D, who suffered from a severe depressive illness stabbed an old friend of his through the heart with a kitchen knife after they had argued over some tools, which hadn’t been returned to Smith. However, after his murder conviction was replaced with one of manslaughter in the C of A it was established that now virtually any characteristic of D can be regarded as relevant.

Hence, applying these cases to Sandra it can be submitted that her depression is a relevant characteristic for the jury when considering what could reasonably be expected of D. Therefore, applying Smith who also suffered from a form of depression it follows that psychological characteristics may be taken into account in the context of the objective limb. This means that Sandra’s provocation defence will be made stronger as her depression may be taken into account when the jury considers what could reasonably be expected of her in the situation.

If Sandra had waited until Peter had fallen asleep and then killed him

The provocation defence becomes much weaker if there is a period of deliberation or merely a time lapse between the provocative act and D’s response when applying the Duffy test. It follows that it is much easier for the prosecution to prove that D was not suffering from a ‘sudden and temporary loss of self control’ even in domestic violence cases where D has been a long-term victim of her husband.

In Ibrams and Gregory (1981), D, his girlfriend and Gregory agreed a plan to attack John Monk an ex-boyfriend of D’s girlfriend who regularly terrorised them. The C of A upheld their murder convictions as there was no evidence that Monk had done anything to provoke them recently and the time interval between the last act of provocation, combined with the pre-formulated plan negatived their claims of loss of self-control. Lawton LJ said:

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

Thus, it was decided that revenge rather than provocation was the reason for the crime in this case. This was followed in the case of Ahluwalia (1992) where the C of A stressed that the requirement was that D’s reaction had to be ‘sudden’ as opposed to ‘immediate’, but pointed out that:

‘The longer the delay and the stronger the evidence of deliberation on the part of the accused, the more likely it will be that the prosecution will negative provocation’

Hence, applying this to the hypothetical situation that Sandra had waited until Peter had fallen asleep in his chair and then killed him with the statuette it follows that under the Duffy test she would find the defence of provocation very weak. Instead, the recommendation would be that she offers a defence of diminished responsibility, which recognised battered woman syndrome (BWS) as a mental disease in 1994. I will now consider this area of law in relation to Sandra’s defence in the former scenario.

Diminished responsibility:

(1) There must be an abnormality of the mind

It is up to the jury to decide whether D is suffering from a state of mind that a reasonable man would find abnormal. In Byrne (1960), D a sexual psychopath who suffered violent, perverted sexual desires, which he found difficult if not impossible to control strangled and mutilated a girl in a youth hostel. After his murder conviction was replaced with one of manslaughter in the C of CA Lord Parker CJ said that the term ‘abnormality of mind’ included:

‘A lack of ability to form a rational judgement or exercise the necessary willpower to control one’s acts’

(2) Abnormality must arise from an inside source

The abnormality of mind which D was suffering from at the time des not need to be permanent, provided that it existed at the time of the killing and that it substantially diminished D’s responsibility. However, it must have been caused by one of four things; a condition of arrested or retarded development, an inherent cause, induced by injury or induced by disease. When considering Sandra’s defence it will only be necessary to consider inherent causes as both depression and BWS fall within this title.

The facts of the case state that Sandra is currently depressed and has been placed on medication by her doctor. The relevance of the Doctor is particularly important, as I will discuss later. However, in both Seers (1984), where D who suffered a depressive illness killed and Gittens (1984), where D, who also suffered from depression, one night after consuming a large amount of drink and anti-depressant pills clubbed his wife to death and strangled his step daughter used depression in their defence of DR and had their murder convictions replaced with manslaughter.

The facts also provide that in the past few years Peter has often hit Sandra thus she can claim BWS as since 1994 after evidence of diminished responsibility in respect of such physical abuse was accepted in the retrials of two battered wives in Ahluwalia (1992) and Thornton (No.2) (1995). In Ahluwalia, D was a long-term victim of an abusive and violent marriage, which led to her waiting for him to fall asleep one night before pouring petrol over him and setting him on fire after he made a threat for the next day. In Thornton, D had suffered physical abuse from her husband in what was a stormy relationship. One night after an argument she went it into the kitchen found a bread-knife, sharpened it and after a threat from her husband she stabbed in the stomach and killed him. This manslaughter verdict was also substituted in Hobson (1998), which recognised that BWS was not recognised as a mental disease until two years after her trial at first instance.

(3) This must substantially effect D’s mental responsibility for her actions

It follows that either Sandra’s depression or BWS must substantially impair her mental responsibility so that her abnormality of mind is substantially greater than would have been experienced by an ordinary person. It was established in the case of Lloyd (1967), as stated by Ashworth J that the impairment need not be total but must have been more than trivial or minimal. Hence, the question for the jury is whether Sandra’s mental impairment was more than minimal so as to effect her mental responsibility for her actions. This decision would be much more inclined to the affirmative if there was medical evidence to support her condition as the jury will be the body to decide after listening to the evidence of doctors. This was established in Sanders (1991) where D’s conviction for the murder of his mistress was upheld in the C of A despite two psychiatrists testaments that he was suffering from reactive depression amounting to an abnormality of the mind because his mistress was not considered in his suicide letters or will. This point of law was confirmed in Campbell (1997), where D was successful at his second appeal as two psychiatrists confirmed that his epilepsy and frontal lobe damage caused an abnormality of the mind. Hence, the fact that Sandra was prescribed medication by her doctor suggests that his testimony at her trial would confirm her depression and perhaps even help her argument of BWS as she mentioned her relationship to him. Thus, it follows that such evidence would be crucial in her defence of DR on the balance of these two cases. Furthermore, if such strong medical evidence was provided and the jury ignored it the C of A could quash a conviction and replace one of manslaughter as per Matheson (1958) where it was held that in such circumstances the court was bound to say that the conviction was unsafe.

In conclusion, my advice to Sandra would be that she use both defences of provocation and DR (which often happens) as the circumstances support both defences. Indeed, the Law commission’s consultation paper ‘Partial Defences to Murder’ proposed that the two defences are merged into one single partial defence considering their similarity especially after Smith (2000) and the fact that both defences are offered if one or the other fails. Sandra could argued that she fulfilled all three necessary elements of the provocation defence as she there was evidence that she was provoked e.g. Peter’s remarks about her as a wife and mother as well as the physical provocation of hitting her. It is also submitted that she lost her self-control as a result of this provocation by applying the Duffy test. Finally, relevant cases have been used to suggest that a reasonable person would have acted in the same way. However, as mentioned if circumstances were different in that Sandra had waited for Peter to fall asleep this defence would be weak as it is unlikely she would fulfil the Duffy test. Instead, DR would be a much stronger defence and in the former scenario this would be equally as strong if not stronger considering that the burden of proof is only on a balance of probabilities. Furthermore, she also fulfils all three elements of this defence as there is support that she was suffering from an abnormality of mind, which was an inherent cause and that it substantially impaired her mental responsibility.

Steven Dibley (Nov 2004)

Case list

Woolin (1998)

Miao (2003)

Doughty (1986)

Davies (1975)

Duffy (1949)

Bedder v DPP (1954)

DPP v Camplin (1978)

Smith (2000)

Ibrams and Gregory (1981)

Ahluwalia (1992)

Byrne (1960)

Seers (1984)

Gittens (1984)

Thornton (No.2) (1995)

Hobson (1998)

Lloyd (1967)

Sanders (1991)

Campbell (1997)

Matheson (1958)