W201 The Individual and the State

Study notes on murder and special defences

(diminished responsibility provocation and suicide pacts)

Murder

The definition

Murder is when a person unlawfully kills a human being with malice aforethought.

Actus reus

The unlawful killing of a human being.

Unlawful means without justification eg self defence or court order as in Airedale NHS
Trust v Bland 1993 Lords (discontinuing medical treatment).

Death occurs following the irreversible death of the brain stem which controls basic
bodily functions such as breathing R v Malcherek and Steel 1981 C A.

It can occur any length of time after the unlawful act but after three years the Attorney
General’s consent is required. His consent is also required if the accused has already
been prosecuted for an offence connected with the death.

A foetus in the womb is not a human being. It becomes a human being in law after being
born when it has drawn breath and has independent circulation. R v Poulton 1832. A
foetus is protected by the separate offence of child destruction punishable with life
imprisonment.

Causation is required eg factual causation - apply the ‘but for’ test - then apply the legal
causation ‘operating and substantial’ test.

Mens Rea

Intent to kill or cause GBH.

Direct intent (consequence desired)

The judge will simply tell the jury to consider all the evidence.

Oblique or indirect intent (consequence not desired but virtually certain)

The judge will explain that the jury may find that the accused had the necessary intention
if “death or serious bodily harm was a virtual certainty … and the accused appreciated
that such was the case” R v Nedrick 1986 C A and R v Woollin 1988 Lords.

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Proposals for reform

Should the mens rea for murder be restricted to an intent to kill only?

Over the years the mens rea for murder has been narrowed.

Up to 1957 you could commit murder if you only had the mens rea of a felony. This was
known as the felony/murder rule or the constructive malice rule. It operated a little like
unlawful dangerous act manslaughter. If an accused caused the death of someone while
carrying out a felony such as rape or burglary the intent to further the felony was
sufficient for murder!

Subsequently we have seen the intent for murder narrowed further as the test for indirect
intent has changed from the natural consequence rule to the ‘virtual certainty’ rule.

The proposals for reform focus on the intent to commit GBH. Is it logical to convict of
murder if the accused never intended to kill?

Lord Edmund Davies in R v Cunningham 1982 Lords said

“I find it passing strange that a person can be convicted of murder if death results
from say his intentional breaking of another’s arm an action which while calling for
severe punishment would in most cases be unlikely to kill”.

The Law Commission Draft Criminal Code meets this objection by proposing that the
new mental element should be:
a) intending to cause death
or b) intending to cause serious injury and being aware he may cause death.

The accused who intended GBH but was not aware he may cause death would be liable to
be convicted of manslaughter instead.

The real problem with a murder conviction is that the life sentence is mandatory (the
judge has no choice) whereas with a conviction for manslaughter the judge can choose
any sentence including probation suspended sentence or a discharge. Some senior judges
favour a change in the law providing for a discretionary life sentence for murder. As long
as there is a mandatory life sentence the argument for keeping the mens rea of murder as
narrow as possible remains.

The Law Commission in 2006 produced detailed proposals for reform of the law of
murder and manslaughter in Report No 304 which are set out in the study note on
Manslaughter.

Special defences to murder

Diminished responsibility Provocation Suicide pact

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Diminished responsibility (sometimes called partial insanity)

Remember this will only reduce a murder conviction to manslaughter. The same
punishment eg life imprisonment may be imposed for manslaughter as for murder see R
v Byrne 1960 CCA (Conviction for murder reduced on appeal to manslaughter but
sentence of life imprisonment remained as the accused was a sexual psychopath).

This is a statutory defence created and set out in the Homicide Act 1957 Section 2

The burden of proof is on the defence on a balance of probabilities.

(1) It requires an ‘abnormality of mind’

This includes absence not only of the ability to tell right from wrong but also of the
willpower to control physical acts. The state of mind must be so different that the
reasonable man would term it abnormal.

The defence will call medical evidence but ultimately the jury do not have to accept it if
other evidence eg the accused’s acts and admissions outweigh it.

(2) It must result in ‘substantial impairment of mental responsibility’

Once again whether impairment is substantial is up to the jury. It is a matter of degree

and the jury does not have to agree with the doctors eg R v Byrne (accused strangled and
mutilated a girl in the Birmingham YWCA - jury returned murder verdict despite medical
evidence).

(3) the cause must be ‘a condition of arrested or retarded development of mind’

or ‘inherent causes’
or ‘induced by disease or injury’
Medical evidence alone would establish the cause.

The purpose of this restriction is to avoid making the defence available to people who kill
because of emotions such as hate or jealousy.

These causes have been liberally interpreted however eg

‘Othello syndrome’ (unfounded suspicion wife was having an affair) R v Vinagre 1979 C
A (close to jealousy!)

‘post natal depression and premenstrual tension’ R v Reynolds 1988

‘battered woman syndrome’ R v Hobson 1998 C A

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If the actions of the accused can be linked to depression or a medical disorder it follows
that it can be linked to either an ‘inherent cause’ or ‘disease’ eg R v Price 1971 (mercy
killing where the dilemma causing the accused to kill was linked with depression).

Intoxication

Voluntary intoxication can not be the cause of the abnormality R v Tandy 1989 C A
(mother drunk on vodka strangles 11 year old daughter) but if the accused suffers from
alcoholism this might qualify as a ‘disease’.

If an accused is drunk and has an abnormality of mind (both at the same time) the jury
have to disregard the drink and decide whether the abnormality of mind on its own led to
substantial impairment of mental responsibility.
They should consider what caused the death separately. Here (construing Section 2(1) of
the Homicide Act 1957) it does not matter that both mental abnormality and the drink are
the cause. The mental abnormality does not have to be the sole cause of the killing. R v
Dietschmann 2003 Lords where the accused was drunk and had a mental abnormality
due to a ‘grief reaction’ on girlfriend’s death (replacing the test in R v Egan 1992 C A).

Footnote

Originally it was believed that under the Homicide Act 1957 the decision on whether
diminished responsibility was made out was for the jury alone. From 1957 to 1962 all
cases went to a jury. After 1962 courts adopted a procedure providing that the decision
whether to accept a plea to manslaughter based on diminished responsibility is one for the
prosecution and judge to agree to (if they don’t agree it is for the jury). However if it is a
novel or a borderline case then it would be proper to present the case to the jury.
If the case is notorious it can also be left to the jury eg the ‘Yorkshire Ripper’ where the
prosecution were prepared to accept diminished responsibility as Sutcliffe was a paranoid
schizophrenic but the judge left it to the jury who heard the evidence and convicted of
murder. They clearly did not accept that there was ‘substantially impaired responsibility’
which is a moral as well as a medical decision.
Today only about 1 in 5 cases of diminished responsibility go to a jury.

Provocation

This is a former common law and now a statutory defence set out in the Homicide Act
1957 Section 3. This sets out two conditions:

a) the ‘subjective’ condition that the accused was actually provoked to lose self control

b) the ‘objective’ condition that the reasonable man would have done so

The burden of proof is not on the defence. Once raised as an issue the prosecution must

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negative it beyond reasonable doubt.

The subjective condition

It can include loss of self control as a result of words or acts.

It can include something done by a person other than the victim R v Davies 1975 C A
(conduct by wife’s lover - husband provoked to kill wife).

It can include something done to someone other than the accused R v Pearson 1992 C A
(accused’s brother).

There must be ‘sudden and temporary’ loss of self control R v Duffy 1949 CCA. This
rules out the case where the accused goes away and plans revenge. Seven days was too
long for provocation to apply in R v Ibrams 1981 C A.

There has been recognition however that conduct may have a cumulative effect as long as
there was a final incident resulting in sudden and temporary loss of control obiter in R v
Ahluwalia 1992 C A (long term domestic violence - provocation not available due to
planning but diminished responsibility applied).

The objective condition

Whether a reasonable man would have responded as the accused did is decided by a two
stage test. At the outset in assessing the gravity of the provocation the jury take the
accused as they find him. At this stage they can attribute to the reasonable man
characteristics of the accused which relate to the provocation. After that the conduct of
the accused is to be assessed by an external standard of a person having ordinary powers
of self control. A G for Jersey v Holley 2005 P C (chronic alcoholism excluded) (not
following R v Smith 2000 Lords and instead applying Luc v The Queen 1997 P C ).

In R v James 2006 C A the Court of Appeal indicated that they would follow the Privy
Council decision and not the earlier Lords decision in Smith. They explained that nine
law lords had sat in Holley and had agreed that Holley clarified definitively the law of
England as well as Jersey. Any further appeal to the Lords would be a foregone
conclusion.

The ten year period up to 2005 saw the courts struggle to decide how far to dilute the
objective ‘reasonable man’ condition in Section 3. The underlying temptation has been to
water down the objective requirement and make it more subjective (allowing any
characteristics of the accused affecting loss of self control to qualify). This extends the
provocation defence and means that more voluntary manslaughter convictions result. The
practical effect is that a judge then has a discretion in fixing a sentence of up to life
imprisonment (instead of the mandatory life sentence). This can enable the court to
achieve a just outcome.

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After the Homicide Act 1957 the law was explained by the House of Lords in DPP v
Camplin 1978 (15 year old youth kills middle aged man - who he claimed had buggered
him then laughed at him – with a chapatti pan). Lord Diplock was prepared first to
attribute to the reasonable man the characteristics of the accused affecting the gravity of
the provocation. Secondly when considering the power of self control he used a test of an
ordinary person but of the same sex and age as the accused (in other words by including
sex and age he did consider that the self control test could be partly subjective).

Later two lines of cases emerged.

Those favouring an even more subjective approach (willing to attribute any characteristic
which affected loss of self control) thereby extending the defence of provocation were:

R v Humphreys 1995 C A (woman of abnormal immaturity and attention seeking traits

kills pimp)
R v Dryden 1995 C A (obsession about land in dispute with planning officer)
R v Thornton No 2 1996 C A (accused suffered from battered woman syndrome)
R v Parker 1997 C A (evidence of chronic alcoholism and brain damage)
R v Smith 2000 Lords (depressive illness reduced threshold for violence)
R v Weller 2004 C A (jealousy)

The second line of cases has stressed the need to retain the objective nature of the test for
self control.

Luc v The Queen 1997 P C emphasised that characteristics must relate to the
provocation and not to loss of self control (mental infirmity causing sudden loss of
temper was found not to be sufficient) (Lord Steyn preferring the Court of Appeal
decisions (see above) dissenting).

A G for Jersey v Holley 2005 P C applying Luc and excluding chronic alcoholism.

Previous case law had indicated that a reasonable man would never be drunk R v Newell
1980 C A or short tempered R v Lesbini 1914 CCA.

Tactically it is an advantage for the defence to raise the accused’s mental state under the
heading of provocation as the burden is then on the prosecution to disprove it. If the
defence raise mental state under diminished responsibility the burden is on them to prove
it on a balance of probabilities

Self induced provocation

An accused can be partly responsible for the provocation he relies on Edwards v The
Queen 1973 PC (blackmailer kills victim who attacked him with knife).

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Comment

It is unusual once the common law has been settled by the House of Lords for it to be
changed quite so quickly and dramatically! The reason is simply that the law lords
themselves are divided. In all the recent cases before the Privy Council or Lords (Luc,
Smith and Holley) there have always been dissenting judgments. In these cases the
arguments themselves have not changed but perhaps significantly there have been
changes in the personnel of the law lords hearing the appeals. In the latest case (Holley) a
majority of the court (six) have adopted a more conservative approach to the statutory
construction of the Homicide Act 1957 and have stressed that the law needs reform but
that it is for parliament to tackle this. Lord Nicholls has said it is “not open to judges…to
change (‘develop’) the common law and thereby depart from the law as declared by
parliament”. The minority (three) who take a more robust approach include Lord
Bingham (the senior law lord), Lord Hoffman (who gave the majority judgment in Smith)
and Lord Carswell. Lord Bingham’s dissenting judgment is very powerful and thorough.
Lord Carswell’s judgment is telling. He says that it is possible to find justification for
either conclusion in the existing law and that it is a policy choice. He suggests three
criteria for development of the criminal law:
1 Legal principles should fit a logical pattern
2 The law should be capable of explanation to a jury
3 The law should achieve justice
He believes the law of provocation set out by the majority in Holley fails to meet these
criteria! Do you agree? It is worth reading the dissenting judgment of Lord Steyn in Luc
where he gives examples of the injustice that may result from the law based on Luc (and
now Holley).

Law Reform

The law on both Diminished Responsibility and Provocation has been reformed and is
now contained in the Coroners and Justice Act 2009.

The new law will come into effect on 4 October 2010. (The OU have indicated that in the
Final Examination you should be prepared to explain both the old and the new law.)

Diminished responsibility (Section 52 Coroners and Justice Act 2009)

There is now an updated definition to reflect current medical thinking.

- an abnormality of mental functioning

- arising from a recognised medical condition
- substantially impairing the accused’s ability to understand the nature of his
conduct and/or to form a rational judgment and/or to exercise self control
- where the abnormality causes (or is a significant contributory factor in causing)
the accused’s conduct.

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The burden of proof on a balance of probabilities is on the accused.

Loss of control (Sections 54 and 55 Coroners and Justice Act 2009)

Provocation is renamed Loss of control and is substantially redefined.

A killing must result from the accused’s loss of self control. The loss of self control must
be attributable to either words or conduct of an extremely grave character causing an
accused to have a justifiable sense of being seriously wronged or to a fear of serious
violence to the accused or another from the deceased (or to a combination of these two
alternatives) and a person of the accused’s sex and age with a normal degree of tolerance
and self restraint, and in the circumstances of the accused, might have so acted.

The court should not take into account matters relating to the accused’s general capacity
for tolerance or self restraint (ie favouring the Holley approach rather than the Smith
approach)

The partial defence will not be available if the accused

- incites a thing to be done or said as an excuse to use violence
- acts in considered desire for revenge
- responds to a thing done or said which constituted sexual infidelity.

Excessive use of force in self defence may now offer a partial defence to murder if it is
covered by ‘fear of serious violence’ in the new definition.

In practical terms this means:

- sudden or immediate loss of control is no longer required
- the new definition is wider as it now covers ‘fear of serious violence’
- the new definition is narrower as the words or conduct must now be ‘of an
extremely grave character’.

Once the partial defence is raised the burden of proof beyond reasonable doubt to
disprove it is on the prosecution.

Suicide Pacts

Section 4 of the Homicide Act 1957 allows a partial defence where an accused kills
another following a suicide pact between them as long as the accused has a settled
intention of dying in pursuance of the pact.

The burden of proof is on the accused on a balance of probabilities.