Kiaran Sandhu                          

A2-4 Law Essay

Problem Question

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?

Introduction

In this essay I will be discussing Sandra’s case and advising her on a suitable defence. Sandra has been charged with murder, in order to reduce her sentence to manslaughter she could use the defences of diminished responsibility and provocation. These can only be used on a charge of murder. I will be splitting both up into their three elements, which are required, both for Provocation and Diminished Responsibility.

Provocation

Provocation was recognised by the common law where the D had been provoked after being subjected to a violent physical attack. In Sandra’s case it is clear she had been provoked by Peter, as he said ‘she has always been a hopeless wife and an inadequate mother’ and after this remark physically attacking her by slapping her across the face. Provocation was also allowed for a man who discovered his wife committing adultery, as in Maddy 1671, and killed her or the lover or both. Blackstones early Commentaries stated that such a crime was of ‘the lowest degree of manslaughter’, a view to which not all would subscribe. The defence was at first limited to husbands but, as the cases of Larkin 1943 and Gauthier of the same year illustrate, it was extended to men killing their mistresses in similar circumstances. In Fisher 1837, a father who killed a man he discovered in the act of sodomy with his son was entitled to the defence. It can be seen from these circumstances that, at common law, there had to be a provocative act of some sort, just words weren’t enough. This was so in Sandra’s case as there was a provocative act (Peter slapping her) along with words (‘hopeless wife’). However as a general approach, the judge should leave the issue of whether the provocative act in Sandra’s case is enough to justify a defence (of provocation) for the jury to decide. In Lesbini 1914,the defence wasn’t available for a man who shot and killed a girl in charge of a firing range in an amusement arcade, after she had made derogatory remarks about him. In Holmes v DPP 1946,the House of Lords held that a husband who killed his wife after hearing her verbal confession of adultery could not use the defence. This can be contrasted with the current position as seen in Parnham 2002,where the jury accepted a manslaughter verdict when a teacher killed after his wife threatened to leave him.

The defence under s3 Homicide Act

The restrictive nature of the common law defence was lifted in 1957.Under s3 Homicide Act 1957 it 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 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.

This section of the Homicide Act clearly recognises and builds upon the common law defence of provocation. There has to be evidence of provocation but it now clearly states that this can arise from ‘things said’ in addition to ‘things done’. It also reaffirms the position that it’s the jury who will decide the issue, by measuring the conduct of the accused by the standard of the reasonable man, a concept first introduced in this context at common law in the case of Welsh 1869.Under the Homicide Act 1957 therefore the revised defence of provocation has three elements to it, which have to be satisfied.

These three elements need to be looked at in detail.

1) There has to evidence of provocation

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 D.In Davies 1975,the action of the wife’s lover, of walking towards the place of work to meet her, was taken into account, when the husband lost self control and killed his wife. 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. Similarly in Pearson 1992, the ill treatment meted out over a period of eight years by the victim, had not been principally directed at the D but towards his brother. The Court of Appeal decided that this was still an act of provocation, which the accused could use in his defence when he killed his father by attacking him with a sledgehammer. To stop the possibility of a later appeal therefore, the accused should usually be given the benefit of the doubt. This even includes cases where the accused himself has started the trouble, which in law is known as’ self induced provocation’. A case illustrating this is Johnson 1989.The accused started an argument in a nightclub, during 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.

There is clear evidence that Peter had provoked Sandra during their argument, as we earlier established Peter saying and doing what he did amounted to provocation. If a baby crying seen in Doughty 1986 was held by the Court of Appeal to have been considered by the jury as a possible provoking act, even though it wasn’t directed at the D.Then it has to be said that being slapped amounts to more of a provocative act then a baby crying, thus showing evidence of provocation.

2) The defendant must have lost self-control

It isn’t enough for the D to show that he has been provoked. He must then show that the provocation affected him so strongly that he then lost his self-control. This is obviously a subjective test. The definition provocation in Duffy uttered by Lord Devlin which has firmly been upheld in later cases, 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 masters the mind.

The words ‘sudden and temporary loss of self control’ have also caused problems in cases where the accused has waited some time before acting. The jury are less inclined to believe 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. This was the position in Duffy 1949 along with Thornton 1992 and Ahluwalia 1992.In Duffy 1949, an abused wife, 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. Her conviction for murder therefore was upheld.

In the case of Duffy 1949 the wife had time to change her clothes and return, which can clearly be said to be a cooling off period as after going she couldn’t have suddenly lost her self control and then gone back into the room to kill her husband. The loss of control has to be sudden and at the time of the argument not after, this was the case with Sandra as she didn’t have a cooling off period, her sudden loss of self control was due to the fact she had been told she was a hopeless and inadequate wife and mother and then had been slapped. For that ‘moment she had not mastered her mind’ which in turn led to her grabbing a statuette and killing Peter with it. A jury would see this as Sandra becoming so enraged at Peter’s actions and words that she lost all self-control.

3) A reasonable man must have acted in a similar way

This last point involves examining the behaviour of the accused and assessing the extent of his reaction to the provocation. After this, the jury will decide whether a reasonable man might have acted in the same way. The purely objective test was modified by the House of Lords in DPP v Camplin 1978.Their Lordships felt that a better test should be: ‘would a reasonable man with the same characteristics as the accused have acted in this way?’

In this case, Camplin a 15-year-old boy had been drinking and went with a middle aged man to the latter’s house, where the boy was forcibly subjected to a homosexual assault. When he expressed shame at what had happened, the older man was alleged to have laughed and taunted him. The boy then attacked him with a heavy pan and killed him. He was co0nvicted of murder after a direction from the judge about the qualities of a reasonable man. His appeal eventually reached the House of Lords, where it was decided that, while certain of the boys characteristics wouldn’t be taken into account for policy reasons, such as his drunkenness and excitability, other characteristics, such as his young age, could be. The question for the jury was whether a reasonable youth of 15, in similar circumstance, would have acted as he did. Because this was a possibility an appeal against the murder conviction was allowed. Unfortunately 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, inevitably to further appeals. In Newell 1980,the accused killed the victim by hitting him with a heavy ashtray, after the friend made homosexual advance 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 g/f 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. Even though the appeal was unsuccessful, this case seemed to mark a turning point where a greater range of factors could be classed as characteristics that could be attributed to the reasonable man. The Court of Appeal had relied on a New Zealand authority, that of McGregor 1962 and decided that certain mental characteristics could also be taken into account. In Dryden 1995,the D’s eccentric and obsessional personality traits were considered, on appeal to be mental characteristics, which should have been pointed out to the jury.

In Smith 1998 the D and the V were both alcoholics and long-standing drinking partners and during an argument over an alleged theft of his tools, D became increasingly furious at the others denial of involvement. He then seized a kitchen knife and stabbed his friend to death. At his trial it was put forward the defence of both DR and provocation. He claimed that medical evidence would show that he was suffering from a depressive illness that had damaged substantially his capacity for self-control. The trial judge however directed the jury that with regard to S3 the characteristics of mental impairment could only be brought forward when deciding on the gravity of the provocation they weren’t relevant to the reasonable mans loss of self-control. The accused was subsequently found guilty of murder. The Court of Appeal disagreed with the Crown Court decision and substituted a verdict of manslaughter. On a further appeal to the House of Lords the latter court upheld the wider view of provocation already accepted by the Court of Appeal. Their Lordships decided that the trial judge had erred by telling the jury that the effect of the D’s depression on his powers of self-control wasn’t material. In answer to the certified question therefore ‘whether characteristics other than age or sex attributable to a reasonable man for the purposes of S3 Homicide Act are relevant not only to the gravity of the provocation but also to the standard of self control to be expected?’ the House of Lords decided that the answer was ‘yes’.

The current state of the law, therefore is the same as that stated by the Court of Appeal in Cambell.In Smith their Lordships decided that the main rules relating to provocation are to be found in the case of Camplin and Morhall.When looking at the characteristics possessed by a reasonable man however, they have decided that the jury is now allowed to take certain mental characteristics of the accused into account, not only with regard to the gravity of the provocation but also when seeking to assess the degree of self control to be expected of the reasonable man.

In Sandra’s case we have to consider would a reasonable person with the same characteristics as Sandra have acted in the same way she did. Her doctor had also placed the quarrels that Sandra was having with her husband, was making her very depressed and her on medication. We can’t ignore the fact Sandra was depressed, as it could be seen that people who are depressed may do things that a reasonable person may not. So if Sandra had not been depressed, she may not have responded to the situation in the same way as she did when she was depressed. In Smith 1998 the Lordships had decided that the trial judge had erred by telling the jury that the effect of the D’s depression on his powers of self-control wasn’t material. Therefore characteristics other than age or sex attributable to a reasonable man for the purposes of S3 Homicide Act are relevant not only to the gravity of the provocation but also to the standard of self control to be expected. So Sandra’s depression could be taken as a characteristic.

Diminished Responsibility

S2 Homicide Act 1957 states that a person may be found guilty of the lesser offence of voluntary manslaughter, rather than murder, if he was suffering from a abnormality of the mind, caused by a inside source, that substantially affected his responsibility for his actions. The precise words are to be found in S2 (1). This states:

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.

S2 (2) puts the burden of proof on the D he will have to prove his abnormality of mind on a balance of probabilities and generally he must be the one to raise the defence. If however the accused is charged with murder and he pleads not guilty by reason of insanity, the prosecutor might, instead, show evidence of diminished responsibility. If the D relies on another defence, such as provocation, and during the trial evidence of diminished responsibility comes to light, the judge is only under an obligation to draw the attention of the jury to the possibility of this other defence. Should the D plead guilty to a killing but put up diminished responsibility as a defence, the judge might be prepared to accept this without the case going to the jury. If the D pleads not guilty, but the jury doesn’t believe his version of events and he is convicted, he will only be allowed to introduce the defence of diminished responsibility on appeal in rare case. An example where this was successful was Borthwick 1998.

Now I will go on to examine the three elements of diminished responsibility.

1) An abnormality of the mind

This is a state of mind a reasonable man would find abnormal. It is the task of the jury to decide this, not the medical experts, although the jury will obviously take notice of medical opinion. The summing up of the judge will also influence the jurors. It is therefore vital that this gives the correct statement of the law. This wasn’t held to be the case in Byrne 1960 and the D was successful in his appeal against murder conviction. Byrne strangled a young girl and then carried out horrific mutilations on her body. He claimed that he was suffering from diminished responsibility and had kills the girl while in the grip of an irresistible impulse caused by his perverted sexual desires. Three medical experts had testified that he was indeed a sexual psychopath. The judge told the jury that S2 wasn’t there to give protection ‘where there is nothing else than what is vicious and depraved’ and had earlier given the impression that a difficulty or even inability of the D to control his acts wouldn’t amount to an abnormality of mind. The jury convicted him of murder. The Court of Appeal quashed the murder conviction, believing that, if properly directed the jury would certainly have found that the defence of diminished responsibility had been made out. Lord Parker stated that the term ‘abnormality of the mind’ included the lack of ability to from a rational judgement or exercise the necessary will power to control ones acts. He said that the term was:

Wide enough to cover the minds activities in all its aspects, not only the perception of physical acts and matters and the ability to form a rational judgement whether an act is right or wrong, but also the ability to exercise will power to control physical acts in accordance with that rational judgement.

The appeal against the murder conviction was allowed and a verdict of manslaughter substituted. The sentence of life imprisonment wasn’t however disturbed. It has been noted that the defence of S2 covers /the minds 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 if the abused woman turner on her tormentor and killed him. Evidence of diminished responsibility in respect of such physical abuse was accepted in the retrials of two battered wives, Ahluwalia and Thornton.

Sandra could use the defence of diminished responsibility because of her depression, however this wouldn’t be as strong as the defence of provocation if she were to use it. In Hobson 1997 the Court of Appeal held that the cumulative effects of ’battered woman’s syndrome’ could lead to an abnormality of mind, Sandra could use this as she had been hit by Peter before to and on the night in question when she got slapped by Peter. There is also more evidence of that in retrials of two battered wives Ahluwalia and Thornton where diminished responsibility because of physical abuse was accepted.

2) Caused by an inside source

The second element of the defence of diminished responsibility states that the 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, i.e. some malfunctioning of the mind. Evidence therefore of mere intoxication caused by drinking or drug taking (i.e. outside sources), cant 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 fro drink or drugs that it could not be controlled.

In O’Connel 1997, the Court of Appeal took a similar approach in relation to a prescribed drug called Halcion, which was alleged to have adversely affected the mind of the D.The court noted that the drug was absorbed very rapidly into the system and also that its effects wear off very quickly. They therefore too the view that its effect was similar to that induced by alcohol and decided that it could not therefore come under the definition of an abnormality of mind ‘induced by disease or injury’. It will be seen that a different decision was arrived at in Sanderson 1994 , because the Court of Appeal believed that the mental illness might well have existed before the sustained cocaine abuse. While intoxication temporarily affecting the mind will not amount to an abnormality in this context, it should be clearly noted that the D doesn’t have to be insane to use the defence. Lord Parkers comment that he thought that the phrase ‘diminished responsibility’ meant something bordering on insanity was later criticised by the Court of Appeal in Seers 1984.The defence has been allowed for someone who killed while in a fit of jealousy (Miller 1972) and for women suffering from post menstrual tension (Smith 1982 and Reynolds 1988). Chronic depression may also suffice, as was the case in Seers and Gittens 1984.In the latter case, the D, after a violent quarrel, killed his wife by clubbing her to death and then raped and killed his stepdaughter. He claimed that he was suffering from chronic depression although he had also acted under the effects of drinks and drugs. The Court of Appeal allowed his appeal against a conviction for murder on the grounds of misdirection by the trial judge, although as in Byrne, the sentence of life imprisonment remained. The court also agreed that the jury had been misdirected in Sanderson 1994, and again substituted a conviction for manslaughter rather than murder. As in Gittens, there was evidence of both mental illness and drug abuse and it needed to be decided if the former had existed before the latter. The Court of Appeal felt that in most cases, it wouldn’t be helpful to quote the whole of S2 to the jury as this could cause confusion. Instead, the trial judge should ‘tailor his directions to suit the facts of the particular case’. As an obiter statement, the court also made it clear that the words ’disease or injury’ mentioned in S2 didn’t, as such, cover mental injury but decided that this type of illness was covered by the earlier phrase’ any inherent cause’.

Sandra’s abnormality of the mind could have been caused by Peter often hitting her or by her depression. In Smith 1982 and Reynolds 1988 the defence of diminished responsibility was allowed for women suffering from post menstrual tension, along with Seers and Gittens 1984 where chronic depression also sufficed.

3) Must substantially effect D’s mental responsibility for actions

The difficulty which the D faces here is that his abnormality of mind must have been substantially greater that would have been experienced be an ordinary person. The impairment need not be total but must be more than trivial, as stated in Simcox 1964.There should be medical evidence to support this contention. Generally the jury will accept such evidence, but it need not if there is other evidence available to suggest a more calculated killing.

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:

Having studied the available evidence of what the appellant did and said at the time, both doctors were of the clear opinion that at the time of the killing the appellant had been suffering an abnormality of mind of such significance as seriously to diminish his responsibility for the act he carried out.

A retrial was therefore ordered. Although it was made clear that this could not lead to an acquittal, only a possible reduction of the murder conviction to manslaughter.

Sandra was suffering from depression as she had been placed on medication by doctors, however there was no medical evidence that Sandra was suffering an abnormality of mind of such significance as seriously to diminish her responsibility for the act she carried out. Such as was seen in the case of Campbell 1997 where because of this a retrial was ordered.

Conclusion

To conclude, the advice I would give Sandra is to plead a defence of provocation, as all the three elements necessary for provocation are there. Unlike diminished responsibility, where all three elements are needed and Sandra has no medical evidence that she had abnormality of the mind or that any abnormality that rose from an inside source, substantially effected Sandra’s mental responsibility for her actions on the night in question. However if Sandra had waited for Peter to fall asleep and then killed him with the statuette, I would have advised Sandra differently. This is because in doing so Sandra would have had a cooling off period and a jury would be less inclined to believe that she had lost her self control, as she waited for Peter to fall asleep. Case law to back this up would be Duffy 1949, which was explained earlier on.