LW2041: Criminal Law

In order for Amina to be successful in the application for the defence of provocation, she must under the act prove that, firstly there were acts that were done by Yasin and Khadija that constituted provocation and secondly such acts of provocation would lead to any reasonable man to losing self-control as she did.

The definition of provocation is expanded on by section 3 of the Homicide Act 1957. The Homicide Act 1957, section 3 gives partial definition of this defence: “Where on a charge murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or said or by both together) to loose his self control. The question whether the provocation was enough to make a reasonable man do as he did shall be left t be determined by the jury, and in determining that question the jury will take into account everything both done and said according to the effect which in their opinion, it would have on a reasonable man”.

A general rule is that provocation must result in a ‘sudden and temporary loss of self control’ and that it should be distinguished from revenge. Where there is significant time delay it is less likely to be a case of provocation, as it may be expected that the defendant has had time to reflect. However, provocation may be cumulative for example in the cases of battered women syndrome; nonetheless there must still be evidence that the defendant did actually lose self-control. This can be seen in the case of R v Humphreys (1995) the appellant had turned to drugs and prostitution during her adolescence. At the age of 17 she started a relationship with the victim. He was a possessive man who on a number of occasions had beaten the appellant. One night the appellant cut her wrists. The victim taunted her saying that she had not done a good job of slashing her wrists. She responded by stabbing him with a kitchen knife. She raised provocation as a defence citing the cumulative violent behavior to which she had been subjected.

As it is clear from the facts Yasin often-beat Amina so it can be argued that the provocation may be cumulative and she was suffering from battered women syndrome.

Whilst Amina has a strong argument to reduce liability from murder to manslaughter by arguing provocation, she can alternatively argue diminished responsibility under section 2 (1) of the Homicide Act 1957: “Where a person kills he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by decease or injury) as substantially improved by mental responsibility for his acts or omissions in doing or being party of the killing”. 

In order for diminished responsibility to succeed as a successful defence there a three requirements:

1. Abnormality of mind; which
2. Results from disease/injury/inherent cause/ arrested or retarded development; which
3. substantially impairs defendants mental responsibility

Amina needs to establish that all three requirements for diminished responsibility are present if she wants to use diminished responsibility as a defence.

The fact that Amina was under the influence of alcohol at the time of committing the murder is largely relevant to the issue of diminished responsibility.Amina may raise the defence of intoxication as it is clearly established that she had drunk several glasses of whisky, which was offered to her by her friend to calm her down. So it can be argued that at the time of committing the crime she was intoxicated as she had a large quantity of alcohol which would have affected her judgment. This can be seen in the case of O’Grady (1987) defendant, because of intoxication, mistakenly thought he was being attacked by a friend and reacted violently, causing death. Defendant was convicted of manslaughter and appealed against conviction, relying on the defence of self defence in the circumstances as he mistakenly believed them to be. The Court of Appeal held that a defendant was precluded from relying on self-defence, if, as a result of voluntary intoxication, he had used excessive force when defending himself.

In concern with Yasin the defences of provocation and diminished responsibility would reduce Amina’s liability for murder to manslaughter from which the sentence is at the discretion of the judge, as she only stabbed him once and it can be argued that her intention was to harm and not to kill. However in concern with Khadija the defences of provocation and diminished responsibility may not be successful as it can be argued that Amina’s intention was to kill and not to harm Khadija as she repeatedly stabbed her.

Khadija had been pregnant at the time and the foetus had died in the womb due to Amina’s actions. Amina could be held liable for the murder of Khadija but would not be held liable for the murder of the baby as the actus reus of murder is causing death of a human being; the unlawful killing of unborn child is not murder as there is no actus reus present.

In concern to Yasin it can be argued that Jake owes a duty of care and although Jake was doing a life saving operation to save Yasin’s life it clearly states in the facts that Jake did not realize that the tube which had been supplying oxygen to Yasin had become detached. Therefore it can be argued that Jake was negligent.

In murder cases where the defendant claims to have been suffering at the time of the offence from some sort of mental disturbance or impairment, then automatism and insanity may be considered.

Automatism was defined in Bratty v Attorney General for Northern Ireland (1963) by Lord Denning “ No act is punishable if it is done involuntarily: and an involuntary act in this context-some people nowadays prefer to speak of it as ‘automatism’- means an act which is done by the  muscles without the control  by the mind such as a spasm, a reflex action or a convulsion; or an act done by a person who is not conscious of what he is doing such as an act done while suffering from concussion or whilst sleep-walking”.

Automatism is a condition which consists of the body operating without the control of the mind, whereas insanity is the disease of the mind which renders the defendant incapable of knowing the nature of his actions and that his actions are legally wrong. If a defendant is successful in the defence of automatism the effect of successful plea will be not guilty. However if the defendant is successful in the defence of insanity the effect of a successful plea may be not guilty or in some cases it may be that the defendant is to be said to be unfit to plead simply because he is not of sane mind therefore an acquittal may be given on the grounds of insanity.

The requirements for a defence of insanity were first set out in the McNaughten Rules which were answers given by a panel of judges which arose in parliament following an insanity verdict in the case of Daniel McNaughten (1843) who had killed the prime minister private secretary. He pleaded not guilty. Medical evidence was called on the behalf of the prisoner to prove that he was not in the sound state of mind at the time of committing the act, following his acquittal on the grounds of insanity. The Rules state that every man is presumed to be sane until the contrary is proved, and that to establish insanity: “…. It must be clearly proved that at the time of the committing of the act the party accused was labouring under such a defect of reason, from disease of mind, as not to know the nature and quality of the act he was doing; or, if he did know it, that he did not know he was doing wrong”.

According to these rules it must be proved that at the time the offence was committed, the defendant was labouring under a defect arising from a disease of mind. Although medical evidence will be of relevance, whether a particular condition amounts to a disease of mind is a legal not a medical question. It seems that any disease which affects the functioning of the mind is a disease of mind. Examples such as diabetes, epilepsy and even sleep walking would be included in this. Internal and external factors need to be considered in such cases, however the factors concerned can not be self induced. In the case of R v Hennessy (1989) Defendant was charged with taking a conveyance without authority and driving whilst disqualified. He was a diabetic who had been suffering from stress, and the stress had affected his blood sugar level and his requirement of insulin. His dose therefore had been inadequate and had been suffering from hyperglycemia. He pleaded automatism claiming he was in state of unconscious automatism, that he was hyperglycaemic at the time. The judge ruled that this, if, true amounted to insanity. The Court of Appeal upheld this ruling, holding that the hyperglyceamia was caused by an internal condition, diabetes, a disease of the mind. The stress and anxiety could not be treated as external causative factors.

In practice automatism is closely related to the defence of insanity. However insanity needs to be carefully distinguished between automatism because of the consequences of a successful plea.

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