Liability for Murder

Question 1 Charlie attacks Betty with an ashtray, killing her and incurring prima facie liability for murder. The actus reus of murder is causing death which requires that the defendant’s act satisfies factual and legal causation. As there are no competing causes of death, these requirements are established and the actus reus of murder is satisfied. The mens rea of murder is intention to kill or cause GBH.[1] Charlie attacks Betty with the aim of killing her thus establishing the mens rea and completing his liability for murder. Charlie will receive the mandatory life sentence for murder unless liability is reduced to voluntary manslaughter by one of the partial defences: diminished responsibility[2] or provocation.[3] Section 2(1) state that diminished responsibility is available if the defendant was “suffering from such abnormality of mind…as substantially impairs his mental responsibility’ for his actions.

This abnormality of mind must arise from one the specified causes: arrested or retarded development, inherent causes or induced by disease or injury. Therefore, Charlie must be suffering from an abnormality of mind, defined as “a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal”.[4] He suffers from moderate learning difficulties, is partially deaf and suffers from a stutter and tic thus the question is whether this renders his state of mind so different to the ordinary person’s mind that it amounts to an abnormality. This determination of whether a defendant’s situation falls within diminished responsibility is a question of fact for the jury who will take into account medical evidence.[5] The jury may take into account Charlie’s disabilities and the impact that they have upon his lifestyle when reaching their decision about his state of mind. The breadth of the phrase ‘abnormality of mind’ is accepted as conferring immense discretion upon the jury to reach a finding of diminished responsibility in cases which arouse their sympathy and in which they feel that the defendant should benefit from the discretion in sentencing which accompanies a verdict of voluntary manslaughter.[6] Although this has been demonstrated in relation to ‘mercy killings’ of the terminally ill[7] and in relation to women who kill abusive partners,[8] it is not certain that the jury will be prompted to sympathy by Charlie’s circumstances. For example, they may feel that his disabilities did not justify his self-imposed reclusive lifestyle and that he merely used them as a shield from the normal vicissitudes of life. If so, the jury could conclude that his state of mind was not sufficiently different from the ordinary person and his defence of diminished responsibility will fail. The level of discretion conferred upon the jury in relation to diminished responsibility mean that it is difficult to predict the likelihood of its success for Charlie. As such, it would be advisable to raise provocation as an alternative basis upon which the conviction for murder could be reduced to voluntary manslaughter. Provocation is defined in section 3 giving rise to a two-stage test. The first stage of the test is subjective and addresses whether the defendant was provoked, by things said or done, to lose self-control.

This considers the defendant’s reaction to provocative conduct. Charlie attacked Betty after she had forced her way into his home and shouted abuse. It has been held that this subjective limb requires that the defendant’s loss of control must be both ‘sudden and temporary’.[9] Here, Charlie tolerates Betty’s abuse for a short period of time until he ‘suddenly snaps’ and grabs an ashtray to attack her.

The use of the nearest object to hand as a weapon is indicative of a sudden response to provocative conduct[10] thus Charlie appears to satisfy the first subjective limb of the test of provocation. The second limb of provocation poses the objective question of whether the reasonable man would have been provoked and acted as the defendant did in attacking the victim. This provides a benchmark of the level of self-control expected of reasonable members of society and, historically, placed a brake on the availability of the defence. However, the House of Lords in Smith adopted a liberal approach to the characteristics that are attributed to the reasonable man which, arguably, negated its limiting qualities.[11] In Smith, the House of Lords held that the reasonable man should be given any characteristics of the defendant that affected his ability to exercise self-control. Following this approach, the reasonable man would be 28-year-old man with learning difficulties and some disabilities who leads a reclusive life and who, presumably, shies away from unpleasant situations.

The question is then asked whether such a person would have been provoked by Betty’s conduct. Given that the reasonable man has all of Charlie’s characteristics and he was certainly provoked, it is likely that the answer to this question would be ‘yes’ which suggests that the defence of provocation would succeed. However, although Smith is a decision of the House of Lords, it was held to be wrongly decided by the Privy Council in the recent case of Holley.[12] The Privy Council cannot overrule a decision of the House of Lords so Smith should remain authoritative but the Court of Appeal refused to apply it recently, preferring the more restrictive approach in Holley.[13] Therefore, it may be that Charlie’s case will be decided on the basis of the narrower approach advocated by the Privy Council in which the characteristics are only attributed to the reasonable man if they were the subject-matter of the provocation. Here, Betty taunted Charlie using the words ‘degenerate’, ‘idiot’ and ‘retard’. Following Holley, only characteristics indicative of low intelligence and mental and moral inferiority will be attributed to the reasonable man which could reduce Charlie’s prospects of a successful plea of provocation. However, as the law in this area is clearly in a state of uncertainty, it may be that the courts would apply the more favourable approach from Smith thus improving Charlie’s chances of avoiding a conviction for murder. However, even if the narrower test were used, it is possible that a jury may decide that a reasonable man with characteristics pertinent to Betty’s taunts would have lost control and acted as he did in which case his plea of provocation will succeed and reduce his liability to voluntary manslaughter. Ultimately, the success of a defence to murder will hinge upon the jury’s evaluation of Charlie’s state of mind in relation to diminished responsibility (a question of fact) and the test used by the courts to determine the characteristics attributable to the reasonable man for the purposes of provocation (an issue of law). Derek shot Arthur to prevent him reporting Betty’s death to the police. As such, he intentionally caused Arthur’s death thus giving rise to prima facie liability for murder. It is difficult to identify basis for a defence of diminished responsibility as Derek is described as being ‘in fine health’ which is not compatible with a finding that he is suffering from any abnormality of mind arising from one of the specified causes.[14] As such, Derek will need to rely upon provocation to reduce his liability to voluntary manslaughter but this may also be problematic due to the requirement that the defendant suffers a sudden and temporary loss of self-control.[15] Derek has not hit out in the heat of the moment but has appraised the situation before him and made a decision about a course of action. He has found his gun and loaded it before going to find Arthur, actions which suggest deliberation and planning rather than an uncontrollable reaction to external pressure which is at the heart of the defence of provocation.

The courts have traditionally maintained that a ‘cooling off’ period is incompatible with the defence of provocation because it indicates that the defendant has had an opportunity to regain his composure and exercise control over his actions.[16] However, there is judicial recognition that a lapse in time between the provocative conduct and the killing is not always fatal to the availability of the defence, provided that the defendant was not in control at the time of the killing.[17] This has been particularly successful in ‘last straw’ cases in which the final provocative act appears insignificant unless viewed in the context of the history between the defendant and the victim.[18] However, it is unlikely that the court would take account of the previous animosity between the neighbours in light of Derek’s use of a gun, particularly against the husband of the man who has just been killed by his son. Moreover, Derek is a former soldier so can be presumed to know, more so than the ordinary man, of the fatal effects of gunshot wounds, so it is difficult to conceive that his actions are anything other than a deliberate killing in an attempt to obscure his son’s crime. Given the degree of planning involved, the requirement of a sudden and temporary loss of control would not be satisfied and Derek’s defence of provocation will fail rendering him liability for a conviction for murder. Word Count: 1500 words Question 2 In 2003, the Home Secretary requested that the Law Commission report on the operation of the partial defences to murder with a view to ascertaining whether they were in need of reform. In particular, it was to be considered whether, in light of the degree of overlap created by case law (particularly the House of Lords decision in Smith), the two defences should remain separate or be subsumed into a single defence. This issue is demonstrated in relation to Charlie as the same facts give rise to potential reliance on both diminished responsibility and provocation. The codification of the partial defences to murder in the Homicide Act 1957 was a specific attempt to add clarity and coherence to an area of law which, as a result of piecemeal common law developments, was in a state of some disarray.

Concerns were particularly pressing following the execution of Ruth Ellis when it appeared that either diminished responsibility or provocation could have provided a defence.[19] The review of the law which followed led to the defences being put upon a statutory footing with the express intention that they should have a separate realm of operation. In other words, it was intended that provocation would be available to those who had killed as a response to external stimuli whereas diminished responsibility would be applicable to those whose internal disorders led them to kill. This bifurcation on the basis of internal and external causes was always fraught with the potential for confusion as it is possible that a person with a mental abnormality (internal cause: diminished responsibility) would kill in response to external provocation.[20] Such situations caused case law to create significant overlap between the defences. In many respects, it should not have been problematic; provocation provides a benchmark of the level of self-control expected of the reasonable person in society by including a second objective requirement that must be satisfied if the defence is to succeed.[21] As the reasonable person is not suffering from an internal abnormality, they would not have reacted in the same way as the defendant thus provocation is will not be available but the defendant may rely instead upon diminished responsibility. In other words, the very factor that removes the availability of provocation from the defendant will form the basis of a defence of diminished responsibility. Seen in this sense, there is no reason why the defences could not have had a mutually exclusive sphere of operation. If this had remained the position, Charlie’s mental condition would have precluded him from reliance upon provocation and left him reliant on the availability of diminished responsibility. This raises two problems; firstly, the degree of discretion given to the jury to determine the availability of diminished responsibility made it an unpredictable defence that could be denied to even the most disturbed defendant[22] and, secondly, diminished responsibility has connotations of mental illness which many defendants were keen to avoid, preferring reliance on provocation which placed responsibility on factors outside the control of the defendant. This was pertinent in relation to women who killed abusive partners; if the defendant was required to rely upon diminished responsibility, this suggested that the fault lay within their mentality rather than with the actions of a violent abuser who had pushed them beyond control.[23] In response, case law broadened the scope of provocation by increasing the characteristics of the defendant which were attributed to the reasonable man.[24] In particular, it was considered important to ensure that those possessed of lower levels of self-control as a result of mental illness were not deprived of the defence merely because the reasonable person would not be afflicted with an equivalent disorder.[25] This was a matter of particular concern for the Law Commission who made reference to the controversy created by the House of Lords decision in Smith which was seen as a means to “enable a defendant to rely on personal idiosyncrasies which make him…more short-tempered than other people”.[26] The Law Commission gave close consideration to whether the two defences should be amalgamated into a single defence that contained elements of both as recommended by Mackay and Mitchell.[27] They rejected this approach[28] and formulated a proposed definition of provocation that would reassert the emphasis on the defence as a response to external pressure whilst underplaying the individual characteristics of the defendant.[29] The delineation between the internal and external compulsions to kill was further reinforced by the recommendation that the law of diminished responsibility should be left unchanged.[30] Accordingly, the Law Commission has sought to return to the position that was originally envisaged whereby each defence would have a separate realm of operation. According to the proposals, the law on provocation should be reformulated to apply only when the defendant has acted in response to ‘gross provocation’ which is defined as ‘words or conduct or a combination [thereof]…which caused the defendant to have a justifiable sense of being wronged’ or a ‘fear of serious violence’ or these two factors combined.[31] If the defendant has responded to gross provocation, he will have a defence only if ‘a person of the defendant’s age and ordinary temperament, i.e. ordinary tolerance and restraint’ might have reacted in the same or a similar way’.[32] If this approach to provocation were enacted, the outcome in relation to Charlie may well have differed as it is likely to have placed the defence further from his grasp than even the reformulated test proposed by the Privy Council in Holley.[33] It is questionable whether Betty’s conduct would amount to ‘gross provocation’. Could Charlie have a ‘justifiable sense of being wronged’ when Betty is merely complaining, albeit in vehement terms, about the noise he has created and objecting to the serious health risk posed by his tendency to leave rubbish in the vicinity of her home? The mere inclusion of a ‘justifiable’ requirement is indicative of the modification of the subjectivity and is tantamount to importing a reasonableness requirement into the first, as well as the second, limb of the test of provocation. Of course, the definition does extend the defence of provocation to those who act out of fear of violence (a questionable extension in light of the Law Commission’s later discussion of self-defence)[34] and this could provide a basis to strengthen Charlie’s case in terms of reliance on provocation. Betty has been banging on the door for half-an-hour, a fair indication of a high level of anger, annoyance or other negative emotion, and has forced her way into this home, shouting as she does so. This may well be sufficient to engender a ‘fear of violence’ in anyone, let alone someone as timorous as Charlie who is known to avoid leaving his home due to his dislike of being teased by local boys. Therefore, although the reformulation of provocation in terms of conduct that engenders a ‘justifiable sense of being wronged’ may weaken Charlie’s prospects of success, the inclusion of the ‘fear of violence’ requirement seems to strengthen it. Overall, it seems reasonable to assert that Charlie would have a fair chance of satisfying this first limb of the proposed test of provocation. The second limb of the proposed test seems to obviate any prospect of reliance upon provocation by Charlie as it is based upon the powers of restraint and temperament of the ordinary person.

The Law Commission proposals elaborate on the meaning of this requirement, making it clear that the only characteristics that are attributable to the ‘ordinary person’ are those arising from the provocation and not those ‘whose only relevance is to the defendant’s ability to exercise self-control’. Accordingly, the Law Commission’s view of the objective limb is largely in accord with the view of the Privy Council in Holley and represents a return to a narrow approach to provocation. The narrowing of provocation proposed by the Law Commission would do nothing to improve the position of Derek who would not have a defence under the existing law. It is difficult to see how Arthur’s actions in reporting Charlie to the police for killing Betty could be perceived as ‘gross provocation’. Overall, the Law Commission proposals regarding the interplay of provocation and diminished responsibility seek to restore the delineation between the defences[35] and rectify the weakening of the objective benchmark in provocation caused by the House of Lords decision in Smith; a process that has been effected to a certain degree by the condemnation of this decision as flawed by the Privy Council.[36] The overall aim of the criminal law in relation to homicide offences is to reflect degrees of culpability by facilitating differentiation between murder and manslaughter.[37] Whilst it is right that it is less blameworthy to kill in the heat of the moment in response to some external pressure than it is to engage in calculated and cold-blooded killing, there needs to be some limitation on the availability of provocation or the distinction becomes meaningless.[38] The Law Commission proposals restrict the availability of provocation by reinstating the objective requirements that have been eroded by case law. Word Count: 1500 words Case List Attorney-General for Jersey v. Holley [2005] 3 All ER 371 Luc Thiet Thuan v. R [1996] 3 WLR 45 R v. Alhuwalia [1992] 4 All ER 889 R v. Baillie [1995] Crim LR 739 R v. Bryne [1960] 3 All ER 1 R v. Duffy [1949] 1 All ER 932 R v. Hayward (1833) 6 C & P 157 R v. Humphreys [1995] 4 All ER 1008 R v. King [1965] 1 QB 443 R v. Mohammed [2005] EWCA 1880 R v. Moloney [1985] AC 905 R v. Morhall [1996] AC 90 R v. Price (1971) The Times 22 December R v. Smith (Morgan) [2000] 3 WLR 654 R v. Thornton [1992] 1 All ER 306 Bibliography Allen, M., (2003) Textbook on Criminal Law, 7th ed., Oxford: Oxford University Press Chalmers, J., ‘Merging Provocation and Diminished Responsibility; some Reasons for Scepticism’ [2004] Criminal Law Review 198 Clarkson, C.M.V. and Keating, H.M., (2003) Criminal Law: Text and Materials, 5th ed., London: Sweet & Maxwell Elliot, C., ‘What Future for Voluntary Manslaughter?’ [2004] Journal of Criminal Law 253 Gale, C. and James, A., ‘Provocation: Law at Time of Trial Relevant’ (2004) Journal of Criminal Law 96 Herring, J., (2004) Criminal Law: Text, Cases and Materials, Oxford: Oxford University Press Law Commission Report 290 (2003) Partial Defences to Murder Mackay, R.D. and Mitchell, B.J., ‘Provoking Diminished Responsibility: Two Pleas Merging Together’ [2003] Criminal Law Review 745 Nourse, V., ‘Passion’s Progress: Model Law Reform and the Provocation Defence’ (1997) 106 Yale Law Journal 1331 Padfield, N., (2004) Criminal Law, 4th ed., Oxford: Clarendon Law Press Thornton, P., ‘A New Look at Expert Testimony’ (1995) New Law Journal 94 Wilson, W., ‘The Structure of Criminal Defences’ [2005] Criminal Law Review 108 1

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Footnotes

[1] R v. Moloney [1985] AC 905

[2] Section 2 Homicide Act 1957

[3] Section 3 Homicide Act 1957

[4] R v. Bryne [1960] 3 All ER 1 per Lord Parker

[5] R v. Bryne [1960] 3 All ER 1

[6] Mackay, R.D. and Mitchell, B.J., ‘Provoking Diminished Responsibility: Two Pleas Merging Together’ [2003] Criminal Law Review 745

[7] R v. Price (1971) The Times 22 December

[8] R v. Alhuwalia [1992] 4 All ER 889

[9] R v. Duffy [1949] 1 All ER 932 [10] R v. Thornton [1992] 1 All ER 306; R v. Alhuwalia [1992] 4 All ER 889 [11] R v. Smith (Morgan) [2000] 3 WLR 654 [12] Attorney-General for Jersey v. Holley [2005] 3 All ER 371 [13] R v. Mohammed [2005] EWCA 1880 [14] R v. King [1965] 1 QB 443 [15] R v. Duffy [1949] 1 All ER 932 [16] R v. Hayward (1833) 6 C & P 157 [17] R v. Alhuwalia [1992] 4 All ER 889; R v. Baillie [1995] Crim LR 739 [18] R v. Humphreys [1995] 4 All ER 1008 [19] Gale, C. and James, A., ‘Provocation: Law at Time of Trial Relevant’ (2004) Journal of Criminal Law 96 [20] R v. Smith (Morgan) [2000] 3 WLR 654; Luc Thiet Thuan v. R [1996] 3 WLR 45 [21] Section 3(1) Homicide Act 1957 [22] Thornton, P., ‘A New Look at Expert Testimony’ (1995) New Law Journal 94 [23] Nourse, V., ‘Passion’s Progress: Model Law Reform and the Provocation Defence’ (1997) 106 Yale Law Journal 1331; R v. Alhuwalia [1992] 4 All ER 889; R v. Thornton [1992] 1 All ER 306 [24] Luc Thiet Thuan v. R [1996] 3 WLR 45; R v. Morhall [1996] AC 90 [25] R v. Smith (Morgan) [2000] 3 WLR 654 [26] Law Commission Report 290 (2003) Partial Defences to Murder, para. 3.20 [27] Mackay, R.D. and Mitchell, B.J., ‘Provoking Diminished Responsibility: Two Pleas Merging Together’ [2003] Criminal Law Review 745 [28] Law Commission Report 209 (2003) Partial Defences to Murder, para. 3.166 [29] Law Commission Report 209 (2003) Partial Defences to Murder, para. 3.168 [30] Law Commission Report 209 (2003) Partial Defences to Murder, para. 5.86 [31] Law Commission Report 209 (2003) Partial Defences to Murder, para. 3.168 [32] Law Commission Report 209 (2003) Partial Defences to Murder, para. 3.168 [33] Attorney-General for Jersey v. Holley [2005] 3 All ER 371; R v. Mohammed [2005] EWCA 1880 [34] Law Commission Report 209 (2003) Partial Defences to Murder, para. 4.27 [35] Chalmers, J., ‘Merging Provocation and Diminished Responsibility; some Reasons for Scepticism’ [2004] Criminal Law Review 198 [36] Attorney-General for Jersey v. Holley [2005] 3 All ER 371 [37] Elliot, C., ‘What Future for Voluntary Manslaughter?’ [2004] Journal of Criminal Law 253 [38] Wilson, W., ‘The Structure of Criminal Defences’ [2005] Criminal Law Review 108

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