If Carl is charged with murder he may have two special and partial defences available to him under the Homicide Act 1957 which would reduce his conviction to voluntary manslaughter and allow the judge discretion on sentencing. These are S.2, diminished responsibility and S.3 provocation.
To plead diminished responsibility he would have to bring medical evidence to show that he was suffering from an abnormality of the mind which substantially impaired his responsibility for his actions. According to Lord Parker in Byrne this means as different from the mind of the ordinary person as to be regarded as normal. Byrne was a sexual psychopath who killed and mutilated a girl’s body because he could not control his sexual urges and was allowed the defence. Depression arises as an internal source. As Carl has been off work with depression he may have this evidence but he must be better now or he wouldn’t be back on the job so he may not be able to rely on this.
He could be better advised to rely on the defence of provocation. There are three elements to the discovery of an affair, Davies, or a slap in the face or even a baby’s crying, Doughty.
Secondly, there must be a sudden and temporary loss of control; this is a subjective question for the jury to answer. Did D suddenly and temporarily lose control or was there evidence that the act was planned, Ibrams? In Thornton and Ahluwalia two battered wives lost their provocation defence because there was evidence that they had waited before killing their husband and fetched a knife and some petrol respectively with which to kill them. According to Duffy there must be no time for the blood to cool and the defendant must be no longer the master of their own mind. This could be a problem for Carl. Although there is evidence of provocation when
Victoria tells him she is having an affair with Wayne and he is shocked and enraged by this he didn’t kill her with the first knife he threw. The fact that he waited until the third knife to kill her might show that his blood had cooled for him to do a calculated act. On the other hand the loss of self control does not have to be immediate but sudden so he might have suddenly ‘lost it’ seeing her there. This is a question for the jury.
Even if they decide there was a sudden loss of self control Carl will also have to satisfy the objective test of provocation. Would a ‘reasonable man’ have lost control and done what he did in the circumstances? The reasonable man test allows a jury to take into account characteristics that are relevant to the accused. In Camplin 1978 it was said that you can take into account the defendant’s age and sex. In that case the defendant was judged by the degree of control that could be expected of the reasonable 15 year old boy after he had been buggered by an older man whom he killed with a chip pan.
Since Camplin there have been a lot of cases which have looked at the characteristics that can be taken into account. In Humphreys an obsessive and immature personality disorder was taken into account and in Morhall being an addicted glue sniffer was allowed as a characteristic even though it was self-induced. More recently the House of Lords in Smith (Morgan James) appeared to say that almost any characteristic of the accused could be taken into account although they ruled out hot tempered so Carl may not be able to rely on that. However, in the later cases of Rowland and Weller the Court of Appeal suggested that any characteristic could be relevant.
In 2005 the Privy Council in Holley said that Smith was wrong. They said you had to separate characteristics which affected to the gravity of the provocation to the accused, which could be anything relevant, from the characteristics that affected an accuser’s power of self-control. This latter limb should not include mental characteristics such as depression which should be proved by medical evidence under the defence of diminished responsibility. Although Holley was a Privy
Council decision it has since been approved as persuasive precedent by the Court of Appeal in Karimi and James.
Therefore Carl may not be able to rely on provocation and would be better to plead diminished responsibility if he can get the medical evidence.