The most serious offence with which Pat (P) may be charged is murder. She may put forward a plea of guilty to manslaughter on the grounds of provocation and diminished responsibility. The actus reus of these two offences is identical: the defendant must unlawfully kill the victim[1]. Murder is committed when the defendant unlawfully kills his victim with malice aforethought; the mens rea of murder is called ‘malice aforethought’[2]. The defendant may have mens rea of murder in voluntary manslaughter, but the presence of some defined mitigating circumstance reduces her crime to the less serious grade of criminal homicide[3]. The prosecution will satisfy the mens rea for Osman’s (O) murder establishing that (P) intended to kill or cause grievous bodily harm as stated in: R v. Moloney[4] and confirmed by the House of Lords in R v. Hancock and Shankland[5].
There was evidence in the fact that she was acting under provocation. The defence of (P) is a partial defence, applicable only to murder. If successfully pleaded, liability is reduced to manslaughter. The defence is of common law origin, but was significantly modified by S3 of the Homicide Act 1957[6]. In order to establish provocation, the jury must decide by two tests: firstly, was she provoked to lose her sudden and temporary self-control? A subjective question[7]. (P) bears an evidential burden in support of her plea whereas the burden of disproving provocation lies with the Crown[8].
It is a fact that (P) had been abused by her husband cumulatively, in acts and words over a period of time. She was provoked to lose her self-control by the words, “you are an ugly old scar-faced junkie”, said by (O) at the time of the killing. The question is whether she should have been angered by the words of (O) at all. Anger, provocation, is a fundamentally interpersonal emotion[9]. With respect to the issue, S3 of The Homicide Act 1957 provides that provocation may be verbal which can give grounds for the defence: Acott[10]and, secondly, the Court of Appeal inDavies[11] held that the provocation may emanate from third parties; or be directed at third parties: Pearson[12].
(P) has been suffering from a ‘battered woman syndrome’ for a long period of time. She cannot succeed in relying on provocation unless she suffered a sudden and temporary loss of self-control at the time of the killing as stated byDevlin J in R v. Duffy[13]. A jury may more readily find there was a sudden loss of self control triggered by (O)’s words even it is a minor incident as she has endured abuse over a period, on the ‘last straw’ basis: R v.Thornton[14]. There is evidence that (P) has been subjected frequently to violent treatment which may have caused the final act or words by a ‘slow burn’ reaction rather than by an immediate loss of self control: R v. Ahluwalia[15].So, the principle of cumulative provocation is recognised, thus even if she reacts violently to a relatively trivial act, the defence of provocation can succeed on the ‘final straw basis’[16].
The House of Lords confirmed that there must be some evidence on the first limb from which a reasonable jury might properly conclude that the defendant was in fact provoked to lose her self-control; If the judge decides that there is not such evidence, he ought not to leave provocation to the jury: Acott[17]. If on the other hand, he concludes there is such evidence on the first limb of the two stage test, the statute obliges him to leave provocation to the jury: Lord Reading in Hopper[18]. In fact in a line of cases culminating in R v. Cambridge[19], the Court of Appeal confirmed that even if the accused did not raise provocation, if the evidence suggested the existence of the defence, the trial judge was obliged to direct the jury on this[20].
If the court is satisfied that there is evidence that she was provoked, then, the second test would be applied, was the provocation enough to make a reasonable woman do as she did? An objective question[21]. In this case, the jury should consider whether a married woman of the same age as (P) sharing relevant characteristics such as a battered women syndrome, hideous scars on her face and junkie, but having reasonable powers of self control, in the circumstances which she had been provoked, would have responded as she did.
In this case should her certain characteristics be taken into account when considering the gravity of the provocation. Judges from the speeches of Lord Diplock in DPP v. Camplin[22], Lord Hoffmann in Fox v R[23] and Lord Steyn (dissented) in Luc Thiet Thuan v. R[24], it should be taken into account. In assessing the objective test, the court suggested that certain characteristics might be attributed to the reasonable person[25]. Examples include: a glue sniffer R v. Morhall[26]; an immature attention seeker R v. Humphreys[27]; and a woman suffering from battered women syndrome and severe depression: R v. Ahluwalia. Finally, the Court of Appeal have confirmed in R v. Thornton that defendant’s bettered women syndrome, i.e. mental as well as physical characteristics, should be attributed to the reasonable person[28]. However, Lord Bingham CJ in R v. Campbell (No-2)[29] considered that fairness demanded that mental infirmities be attributed to the reasonable man.
On the other hand, it is arguable that, there was no medical or other evidence in the fact, to suggest that she had been suffering from a battered women syndrome or any other specific condition, which could amount to characteristics as defined in R v. Thornton[30]. There was much evidence that she had suffered grievous ill treatment, but nothing to suggest that this effect made her a different person from others.
However, her characteristics may not be taken into account for reason of public policy[31]. Further, the majority of the Privy Council has held that any unusual physical characteristics of the accused, such as brain damage which impairs or reduces his powers of self control should not be attributed to the reasonable man: Luc Thiet Thuan v. R, Lord Steyn (dissented)[32]. The Court of Appeal took the same approach again in the later case of Smith (Morgan James)[33], that defendant’s characteristics of mental impairment were relevant only to the gravity of the provocation but not to the reasonable man’s loss of self-control. Relying on the Privy Council decision in the Luc Thiet Thuan, the judge may convict her of a murder.
However, Professor Ashworth in ‘The Doctrine of provocation’[34], expressed the view that the defence of provocation was for those who were mentally normal, where as those suffering from a mental abnormality should rely on the defence of diminished responsibility under S2 of the 1957 Act[35]. Also Lord Goddard in R v. Duffy stated that fists might be answered with fists, but not with a deadly weapon[36].
As an alternative to the defence of provocation, she may be able to take advantage of the defence of diminished responsibility, introduced by S2 of The Homicide Act 1957. For a successful plea, she has to prove the requirements laid down in diminished responsibility, on the balance of probabilities.
In Ahluwalia, the appeal was allowed and a retrial ordered because diminished responsibility had not been raised at the defendant’s trial despite medical evidence available at this time, which indicated that she suffered from endogenous depression when the act was committed[37]. But in Straw[38], the defendant was refused to allow diminished responsibility to be pleaded.
If (P) successfully pleads provocation or diminished responsibility, she will be convicted of manslaughter and the court will have discretion as to sentence, ranging from absolute discharge to life imprisonment or, if appropriate, a hospital order may be made. On the other hand, if neither plea is successful, she will be convicted of the murder of (O) and, sentenced to life imprisonment.
The Homicide Act 1957, S2, introduced into law a partial defence to murder, known as “diminished responsibility”, which reduces liability from murder to manslaughter, thus enabling the trial judge to exercise discretion in sentencing[39]. This defence was introduced due to the problems arising from the Mc Naughten Rules, and has been given a very broad statutory interpretation by the courts[40].
The defence of diminished responsibility was introduced in response of substantial reasons: the more substantial reason is that the defendant acted the way he did because of his illness or condition. If his illness or condition was not related to his action then it should have no effect on his liability. However, if he acted due to his illness or condition, he has no intention or mens rea in his action then he should be seen as blameless. So, it would be unjust to find him guilty of murder when he is suffering from an illness or similar condition. The second reason is that the defence exists because of the mandatory life sentence for murder[41].
If defendant pleads diminished responsibility, then he must prove it on the balance of probabilities [S2 (2)],Dunbar[42]. On the other hand, the prosecution must prove it beyond reasonable doubt if they raise diminished responsibility. However, evidence must be supported by at least two medical experts to substantiate claim[43].
For a successful plea, three concepts have to be proved:
a) Defendant was suffering from ‘abnormality of mind’;
b) Resulting from a condition of arrested or retarded development of the mind on any inherent causes or is induced by disease or injury;
c) That substantially impaired his responsibility for the killing[44].
The defence must not be left to the jury unless there is medical evidence in support of these three elements as stated in Dix[45]; however, there must be clear evidence that he is mentally imbalanced: Vinagre[46]. The elements (a) and (c) are issues for the jury, who should take into account all the evidence, but, if the medical evidence is unanimous, and there is nothing in the facts or circumstances which could lead to a contrary conclusion, they are bound to accept it: Byrne[47]; Matheson[48]. The second element concerns the cause of the abnormality. This issue is to be resolved solely by reference to the medical evidence: Byrne.
An abnormality of mind is a state of mind, which a reasonable person would consider abnormal, and it covers all aspects of the mind’s activities, rather than just the brain as stated by Lord Parker in R v. Byrn[49]e. The defence of irresistible impulse is differentiated between: a) he did not resist his impulse and, b) he could not resist his impulse. This is incapable of scientific proof and there is no scientific measurement of the degree of difficulty that an abnormal person finds in controlling his impulse[50]. Thus, in R v. Hobson, Ahluwalia, and Thornton Court of Appeal laid down that battered women syndrome held to be mental disease and could cause an abnormality[51].
The second requirement is that the abnormality must be caused by a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury. The aetiology of the abnormality of mind is a matter to be determined by medical evidence: Byrne. The general rule that drink does not give rise to an abnormality of mind due to inherent causes was authoritatively established in Fenton[52], and confirmed in Gittens[53]. In line with those authorities, Tandy[54] established that drink is only capable of giving rise to a defence under S2 if it either causes damage to the brain or produces an irresistible craving so that consumption is involuntary.
The third requirement is that the abnormality was such as to “ substantially impair the defendant’s responsibility for her actions”[55]. The impairment need not be total, but it must be more than trivial or minimal. In Lloyd[56], this court held that “substantial” for the purposes of S2 means real and not illusory. In R v. Dietschamann[57], held that the defendant’s responsibility was not substantially diminished by anything.
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1 See, Jonathan Herring & Marise Cremona ,Criminal Law, 2nd, p-129.
[2] See, C. M. V Clarkson, Understanding Criminal Law, 3rd, p-164
[3] See, Smith & Hogan, Criminal Law, 9th, p-352
[4] (1985) 1 All ER 1025
[5] (1986) 1 All ER 641
[6] See, Smith and Hogan, Criminal Law Cases and Materials, 7th , p-447.
[7] See, Catherine Elliott and Frances Quinn, Criminal Law, 3rd,p-55
[8] See, Duncan Bloy & Philip Parry, Principles of Criminal Law, 3rd, p-190
[9] See, Modern Law Review, Nov-2001, Vol-64, p-820.
10 (1997) 1 All ER 706
[11] (1975) QB 691
[12] (1992). Crim LR 193
[13] (1949) 1 All ER 932
[14] (1996). 2 All ER 1023
[15] (1992) 4 All ER 889
[16] Justice of The Peace Reports, 2000,165(40).
[17] Criminal Law, Michael Jefferson, 5th, p-82
[18] (1915) 2 KB 431
[19] (1994), 2 All ER 760
[20] See, Janet Dine & Jamess Gobert, Cases & Materials On Criminal Law, , 3rd , p-278
[21] See, C.M.V. Clarkson and H.M Keating ,Criminal Law, 4th ,p-699
[22] (1978) AC 705
[23] (2001)1All ER 58
[24] (1996) 2 All ER 1033
[25] See, Russell Heaton , Cases & materials Criminal Law, 2nd ,p-92
[26] (1995) 3 All ER 659
[27] (1995) 4 All ER 1008
[28] See, Alan Reed & Peter Seago, Criminal Law, p-325
[29] 1997 1CR APP R 199
[30] See, Michael J Allen ,Criminal Law, , 8th,p-545
[31] Archbold News, 2000, 8.
[32] Journal of Criminal Law, 2000, 64(3).
[33] 2000 3 WLR 654
[34] (1976) 35 CLJ 292
[35] See, Michael J. Allen ,Textbook On Criminal Law, 6th ,p-305
[36] See, Alan Reed & Peter Seago ,Criminal Law,p-335
[37] See, Duncan Bloy & Philip Parry, Principles of Criminal Law, 3rd ,p-202
[38] (1995) All ER 361
[39] See, Smith and Hogan, Criminal Law Cases and Materials, 7th , p-441.
[40] See, Catherine Elliott and Frances Quinn, Criminal Law, 3rd,p-65
[41] See, Jonathan Herring & Marise Cremona ,Criminal Law, 2nd ,p-281
[42] (1958) 1 QB 1
[43] See, Jonathan Herring & Marise Cremona ,2nd ,p-280
[44] See, Russell Heaton , 2nd ,p-101
[45] (1982) CA 42
[46] (1979) 69 Cr App R 104
[47] (1960) 2 QB 396
[48] (1958) 2 All ER 87
[49] See, Catherine Elliott and Frances Quinn, 3rd,p-65
[50] See, Smith & Hogan, 9th, p-213
[51] See, Catherine Elliott and Frances Quinn, 3rd,p-66
[52] (1975) 61 Cr App R 261
[53] (1984) 79 Cr App R 272
[54] (1989) 87 Cr App R 45
[55] See, Smith & Hogan, 9th, p-213
[56] (1965) 50 Cr App R 61
[57] (2001) 1 All ER 60