Analysis of the law relating to the offence of Murder and relevant offences of Provocation, Diminished Responsibility and Intoxication.
This continuous assessment requires a detailed analysis of the law relating to the offence of Murder and relevant offences of Provocation, Diminished Responsibility and Intoxication. The issue of non-fatal offences will also be dealt with.
Murder is the killing of a human being by a human being within the Queen’s peace, death arising within 3 years of the act by the accused and also caused by the act of the accused. The actus reus of Murder therefore requires that the defendant should have caused the death of the victim through an act of his/her own. Death should be caused within the Queen’s peace and three years of the act of the defendant. In this question the defendant Mo killed her husband Billy. It was Mo’s act of setting fire to Billy’s bed, which caused the death of Billy who is the victim in this instance. It is required to be proved that death was caused by the act of the defendant.
Murder is a consequence crime and therefore accordingly requires causation to be proved in order for the actus reus of murder to be proved. It is in essence proving that it was the act of the defendant that caused the death of the victim. Causation is a 2-stage test and requires firstly causation in fact. The test for causation in fact is the ‘But for test’. But for the act of the defendant, would the victim still have suffered the consequences and if not then there is causation in fact. The element that has to be proved is that it was the act of the defendant that put the victim in a certain setting; in which he would not have been but for the act of the defendant. In this instance it is not difficult to prove causation in fact, as had it not been the act of Mo, Billy would not have died. Once causation in fact is proved the second test of causation has to be satisfied.
The second stage of the causation test is causation in law. Causation in law is that it was the act of the defendant that was the operative and substantial cause of the consequences. An act can be defined as the operative cause of the consequences if it has not ‘exhausted its effect’. Substantial cause has been defined as something that does not fall within the ‘de minimis’ principle. However this can be misleading. Sometimes too trivial acts can result in liability for murder if this principle is applied. The correct test would seem to be that substantial cause is anything, which is more than merely insignificant and does contribute to the death of the victim. It is wrong to direct a jury that the defendant is not liable if he is less than one-fifth to blame. The requirement is that the act should still be significantly contributing to the death.
In this question it seems that in relation to death of Billy there is causation in law as the act of Mo was the operative and substantial cause of Billy’s death. Neither had the act of Mo exhausted its effect and furthermore it was also the significant and sole cause of Billy’s death. It seems therefore that the actus reus of the offence of murder is proved as Billy dies in the fire and the place of his death is within the Queen’s peace. This takes us to the next issue in the question, whether Mo had the requisite mens rea for murder.
The mens rea for murder is intention to kill (express malice) or cause grievous bodily harm (implied malice). Traditionally the mens rea for murder is called “malice aforethought”. In Smith & Hogan Criminal Law 9th Edition malice aforethought has been defined as:
‘a mere arbitrary symbol… for the ‘malice’ may have in it nothing really malicious; and need never be really ‘ aforethought’.
Therefore the requirement today is that the defendant should have intended either death or grievous bodily harm as a result of his/her act. Malice aforethought is generally taken to mean that the defendant should have intention to bring about either of those two consequences.
“Intention” has the same meaning as defined as in Woollin. Intention can be defined as the either the purpose of the defendant’s act or even if it not the purpose of the defendant’s act, intention can be inferred from certain subjective foresight on part of the defendant. In other words if the defendant realizes that the consequences are virtually certain as a result of his act then the courts can hold that the defendant intended the consequences as a result of his act.
In the question before us it has been expressly stated that Mo had written a long letter in which she had mentioned that she was tired of living like this anymore. Thereafter she sets Billy on fire. It is clear therefore that the act of Mo was intentional. However it has not been mentioned whether she intended to cause serious bodily harm to Billy or kill him. It seems though that the courts are likely to hold that Mo has certainly foreseen serious bodily harm and therefore intended the consequences.
Mo intended to set Billy on fire and even if it was not the purpose of her act that Billy should be killed or suffer serious harm, she would have probably foreseen serious bodily harm as a virtually certain result of her act. The basic requirement is that Mo should have realized the consequences as a virtually certain consequence of her act. Furthermore the foresight/realization should be subjectively certain. Even if certain subjective foresight of the consequences is proved, it is at best only evidence of intention and although intention can be gathered/inferred from such foresight, such foresight is not intention itself. In ascertaining whether Mo had the requisite foresight to infer intention, the probability test provided by Lord Scarman can be used a guide.
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It seems therefore that in light of the facts of the case that there was high probability that the Billy would at least suffer serious bodily harm. Therefore it is highly likely that Mo foresaw the consequences and therefore certainly realized serious harm to Billy as a result of her act. In such circumstances it is probable that the courts will hold that Mo intended, through her act, that Billy should suffer serious bodily harm. If this is the case then the courts will hold that Mo had the mens rea for murder. Murder will therefore be proved.
The second offence relates to Mo picking up a shovel and hitting John over the head with causing the death of John. In this act all the elements of the actus Reus of murder, as discussed above, are present. Murder will therefore be proved if the prosecution can prove that Mo certainly realized that she would cause serious bodily harm to John. It is more than likely that this will be proved.
If murder is not proved due to lack of mens rea then alternative charge can be brought for involuntary manslaughter, which is of two kinds; Unlawful act/constructive manslaughter and Gross negligence manslaughter. This will not be discussed in detail, as it is likely that murder will be proved in both the instances and therefore the answer will concentrate on the possible defences to murder.
If murder is proved in either case, then Mo can rely upon the special defences to murder if they are applicable. There are four special defences to murder that reduce a charge of murder to one of voluntary manslaughter. In this question the relevant defences that require discussion are Provocation and Diminished Responsibility. Section 2 and Section 3 of the Homicide Act 1957 define the defences of Diminished Responsibility and Provocation.
Section 2 of the Homicide Act 1957 provides that where the defendant to a charge of murder is suffering from an ‘abnormality of mind’ at the time of committing the offence he can plead the defence of diminished responsibility. Lord Parker CJ has defined abnormality of mind in the case of R v Byrne as “an abnormality of the mind so different from that of ordinary human beings that a reasonable man would term it abnormal” and that this was essentially a matter of fact for the jury to determine. It is important to further understand here that where the abnormality is created by intoxication then the defence is not diminished responsibility unless the defendant is suffering from such an abnormality of mind that he has a craving to drink or take drugs and cannot resist them at all.
The second defence that might be available to Mo is the defence of provocation. Section 3 defines provocation as loss of self-control. Devlin J in the case of R v Duffy defines provocation as sudden temporary loss of self-control. Provocation can be through words or actions. The act of provocation can come from a third party other than the victim and can be directed at a third party other than the defendant. The act of provocation can even be lawful.
The test of provocation has been whether there has been sudden temporary loss of self-control by the defendant and would a reasonable person with the defendant’s characteristics also have lost self-control. Case law clearly indicates that there must be no cooling off time between the provocation and the killing. The loss must be sudden, due to this requirement women cannot take this defence because they mentally work differently to men and their actions are merely not spontaneous. Marie Fox has criticised this stating that the judiciary does not understand a women’s position. Where the defence of provocation is relied upon, then to succeed the jury must consider the existence of certain characteristics of a reasonable man. It was confirmed in R v. Thornton (1995), that battered woman syndrome could be a relevant characteristic for the jury to consider in a defence of provocation in a murder trail.
The criterion is that the jury must be satisfied that the reasonable man would have done as the defendant did. This is the “objective” test based upon a hypothetical reasonable person. For a long time, the only characteristics, which could be attributed to the reasonable man, were age, sex and any personal idiosyncrasies that had some degree of permanence and were characteristic against which the provocation had been directed.
Both of these subjective and objective criteria have given rise to problems for battered women. Kiranjit Ahluwalia, who after enduring many years of violence and humiliation from her husband, threw petrol into his bedroom, whilst he was sleeping in there, and set it alight. Her husband died six days later. She was convicted of murder at trail, her defence of provocation having been unsuccessful. On retrial she was convicted of manslaughter as the medical evidence was admitted. Court of appeal affirmed that as it was major depressions disorder that it could come under the ambit of Section 2 as diminished responsibility.
The test of provocation seems to have become more subjective after the case of R v Morgan James Smith. The effect of Morgan James according to Laurence Toczek is that ‘mental characteristics, whether temporary or permanent, which reduce a defendant's powers of self-control can be taken into account by juries when the defence of provocation is raised’. According to Timothy Macklem the existing common law analysis of provocation provides sufficient leeway for some subjectivity to be taken into account. Further R.D. Mackay and B.J. Mitchell argue that following the case of the distinction between the two pleas is no longer practical and that it would therefore be expeditious to merge them into one defence. They argue in favour of a new defence, suggesting a model that recognises that both "extreme emotional disturbance" and "unsoundness of mind" could operate in tandem to influence the accused's behaviour at the time of the killing.
In this instance Mo has been beaten up repeatedly and is suffering from a condition recognised as battered woman syndrome. It seems therefore her condition will be a factor to be taken into account when the jury is assessing for the defence of provocation that whether a reasonable person would have lost self-control. Furthermore whereas initially battered woman syndrome was only accepted as a situation which could be a factor to be taken into account for situations concerning provocation, in the case of Hobson the defence of diminished responsibility was considered and it was recognised that battered woman syndrome could give rise to the defence.
In both defences mentioned above it is essential to understand the importance of battered woman syndrome. The concept of Battered Women Syndrome is not new in the English jurisdiction and has gained much support through other jurisdiction and by judicial decisions. However there is no precise definition provided of BWS, but it is clear that women who live with violent men do suffer from a mental crisis, characterised by several features such as depression, low self-esteem, anxiety fear, trauma anticipation and desire to please. These characteristics follow on from living in fear of a partner’s violence and intimidation. BWS is not a mental illness but a state of ‘learned helplessness’.
In the US the original intention of expert testimony was to assist the judge and jury in assessing the defendant’s responsibility and mens rea and understand the reasonableness of a woman’s actions. “But expert testimony will not be a new scientific technique whose reliability is unproven”. The defence of BWS has been refused in cases such as Moran v. Ohio thereby clarifying the admissibility question for all US states. The US has however enacted a law of Violence Against Women Act 1994 that offers additional protection to women. VAWA is a landmark legislation that provided new protections for battered immigrants women and created a new civil rights remedy for victims of gender bias crime.
In Canada the admissibility of a BWS defence has been of much more recent origin and enters exclusively as part of a self-defence strategy in the case of Runjanjic v. Kontinennen (1991). More over in the UK attempts to introduce this evidence have been both under the limb of a defence of provocation and diminished responsibility.
Many battered women do not lose their self control immediately prior to the killing of the batterer following long term abuse, some battered women appear to have taken a calculated decision to kill that was not triggered by any very recent provocation, still others appear to have acted in the face of recent provocation, but with more or less deliberation at or close to the moment of the fact. In this instance it seems that this is the case and therefore it might be difficult for Mo to establish provocation as a defence for the death of Billy as there is no sudden temporary loss of self-control. Cooling time for the defendant means that the defence of provocation is not available. Cumulative provocation is a defence if there is sudden temporary loss of self-control.
In relation to the death of John, Mo can successfully plead the defence of provocation if the jury is satisfied that a reasonable person with Mo’s characteristics, that may even include the influence of drugs and the ensuing remark by John about it, would have lost self control and killed the victim. The subjective criterion for provocation is satisfied in this instance as Mo suffered sudden temporary loss of self-control.
In this question another issue is the intoxication of Mo. In R v Anthony Dietschmann it was held that even if a defendant would not have killed if he had not taken drink, a defence of diminished responsibility could be available to him if he could satisfy the jury that, despite the drink, a mental abnormality substantially impaired his mental responsibility for his fatal acts. The defence of diminished responsibility will be available to Mo for both offences if she can prove that she was suffering from an abnormality of mind not caused by her intoxication. The defence of diminished responsibility has been discussed above and will not be discussed any further.
In any instance Mo can also plead the defence of Voluntary Intoxication. Voluntary intoxication is a defence to crimes of specific intent. It is not a defence to basic intent crimes. Intoxication is voluntary where it results from the defendant knowingly taking alcohol or some other drugs even though he does not know its precise nature or strength or even though the effect of the amount taken is much grater than would have been expected. Intoxication is a defence where the defendant is in such a state of mind that he cannot intend the natural and probable consequences of his act. In effect once intoxication is established Mo cannot be held to have intended the consequences and therefore it will be a defence to Murder. However it will not be a defence to a charge of involuntary manslaughter. Therefore Mo will probably be guilty for either unlawful act/ constructive manslaughter or gross negligence manslaughter. In effect therefore voluntary intoxication will prove to be partial defence.
Another point that should be noted here is that the defence of voluntary intoxication will no be available if Mo had the intention of committing the offence prior to being intoxicated and only got intoxicated to gain the courage to commit the offence. The reasoning behind this is that where a person in intoxicated he cannot form the intent to commit a crime, however the intent in such cases is already formed prior to the intoxication and therefore intoxication does not affect the state of mind. In fact intoxication assists the defendant in the commission of the offence.
Lastly it should be considered whether the defence of involuntary intoxication might be available to Mo. The test for intoxication has been defined already defined. It is important to note however that intoxication is involuntary where it is caused by a drug taken under medical advice or by a non-dangerous drug that is a drug that is not normally liable to cause unpredictability or aggressiveness.
In this case Mo has taken anti-depressant drugs. If they have been subscribed to her or are regarded as drugs that are not likely to cause aggressiveness then the defence of involuntary intoxication will be available to Mo, if she can show that she was under the influence of the drugs at the time of committing the act and therefore could not form the requisite mens rea to commit the crime. Involuntary intoxication is a defence to crimes of specific and basic intent due to the nature of the intoxication being involuntary. If successfully pleaded it will be a complete defence.
Another possible defence can be availed by a person who reacts in retaliation and self-defence. This is so under section 3 of the Criminal Law Act 1967. Mo in proving herself under the conditions of the section may find it very difficult to prove her defence as there was no immediate threat at that time and the force used was unreasonable.
In the case of Billy and John not being killed and suffering serious wound a charge under section 18 of the Offences Against the Persons Act (OAPA) 1861 can be brought against Mo. The actus reus of s.18 requires that the defendant should cause Grievous bodily harm (GBH) or wound to the victim. The mens rea of s.18 is intention to cause grievous bodily harm or wound. Mo will be guilty under s.18 if it can be established that she certainly realized that she is likely to cause grievous bodily harm through her act. Provocation and diminished responsibility are not defences to assaults and are special defences to murder only. This is due to the outlying discretion with the courts in sentencing for non-fatal offences against the person.
Voluntary intoxication however might afford a defence to Mo. It will only be a defence to s.18. If Mo can successfully plead the defence of voluntary intoxication then an alternative for the prosecution would be to bring a charge under s.20 of OAPA 1861. Under s.20 Mo can be guilty of inflicting grievous bodily harm or wound if she realizes that she is likely to cause some bodily harm to Billy and John. Realization here is used in the context of subjective recklessness. It is probable that Mo will be guilty under s.20. Involuntary intoxication if proved can be a defence to a charge of s.18 and s.20.
If Billy and John die as a result of Mo’s death then a probable charge of murder will be proved against her. Appropriate defences from the act against Billy would be diminished responsibility and voluntary intoxication. For the act against John, even provocation could be an effective defence. If however the two victims survive then Mo is likely to be convicted under S.20 with a possible defence of voluntary intoxication to a charge under s.18.
1) Textbook on Criminal Law by Michael J. Allen, 6th Edition, Blackstone Press
3) Card, Cross & Jones Criminal Law by Richard Card, 14th edition, Butterworths
4) C.M.V. Clarkson & H.M. Keating, Criminal Law Text and Materials, 5th edition, Sweet & Maxwell, 2003
5) Smith & Hogan, Criminal Law, 10th edition, Butterworths, 2002
6) William Wilson, Criminal law Doctrine and Theory, 2nd edition, Longman, 1998
7) Ashworth, A., Principals of Criminal law, 3rd edition, Oxford University Press, 2003
8) Lacey Wells & Quick, Reconstructing Criminal Law, 3rd edition, 2003
9) Timothy Maclem, John Gardner, “Provocation and Pluralism”, The Modern Law Review, November 2001, MLR Vol.64 No.6, pages 815-830, 1/11/2001- 1/12/2001
10) R.D. Mackat, B.J. Mitchell, “Provoking Diminished Responsibility: two pleas merging in to one?” Criminal Law Review Crim LR, November 2003, pages 745-759, 1/11/2003
11) Susan Edwards, “Injustice that puts a low price on a women’s life: reforms to eradicate a sex bias in the laws dealing with perpetrators of domestic violence are decades overdue”, Times September 2nd 2003.
12) Laurence Toczek, “Self control and the reasonable man”, New Law journal NLJ Vol.150 No. 6948, pages 1222-1223, 11/08/2000
13) Susan Edwards, “Will women be losers after the provocation ruling”. The Times, 21 March 2000, Supplement Page 16
If death arises after three years of the act of the defendant then the consent of the A.G is to be acquired for a charge to be brought against the defendant.
R v White  2 KB 124
R v Smith  2 QB 35
R v Cato  1 All ER 260
Hennington  3 All ER 133
R v Cheshire  3 All ER 670
Hyam  AC 55
Kenny, Outlines (15th Edition) 153.
 AC 82
R v Nedrick  3 All ER 1
R v Moloney  AC 905
R v Hancock & Shankland  AC 455
The defences are not complete defences and are in effect partial defences. If successfully pleaded, they reduce liability from murder to voluntary manslaughter. The significance of these defences is that whereas on a charge of murder the Courts have no discretion in sentencing and have to give a life sentence, in voluntary manslaughter the courts have discretion in sentencing.
 2 QB 396
R v Tandy  1 All ER 267
 1 All ER
R v Humphreys  4 All ER 1009
R v Davies  QB 691 C.A.
R v Pearson  Crim. LR 193
R v Doughty  Crim LR 625
DPP v Camplin  AC 705
R v. Ibrams and Gregory (1981) 74 Cr. App R 154,
Feminist Perspectives on Law. By Jo Bridgeman and Susan Millns, at page 663
R v. Thornton (1995) (No 2) NLJ Rep 1888
Camplin (1978) AC 705 HL, and Newell (1980) 71 Cr App Rep
 Crim LR 63
(2000) 4 All ER 289
Laurence Toczek, “Self control and the reasonable man”, New Law journal NLJ Vol.150 No. 6948, pages 1222-1223, 11/08/2000
Timothy Maclem, John Gardner, “Provocation and Pluralism”, The Modern Law Review, November 2001, MLR Vol.64 No.6, pages 815-830, 1/11/2001- 1/12/2001
R.D. Mackat, B.J. Mitchell, “Provoking Diminished Responsibility: two pleas merging in to one?” Criminal Law Review Crim LR, November 2003, pages 745-759, 1/11/2003
(1997) Crim.LR 759
Here in referred as BWS,
There is no particular law to support BWS, although there is abundant evidence that more and more women are battered in their homes in the UK.
WLA report on Battered Women Who Kill, adopted May 1997,
California, the Evidence Code 1107(1993) page 235 Sex and Gender in the Legal Process
Moran v. Ohio, 83 L Ed 2d 285 (1984), Thomas v Arn 474 US 140 (1985), Neely v. Alabama 488 US, 1020 (1989), and Willis (1994) 38 F 3d 170, 19 June (1995)
Violence Against Women Act (1994), here in referred to (VAWA)
Runjanjic v. Kontinnen (1991) 56 SASR 144
Ahluwalia (1992) 4 All ER 889,
(2003) UKHL 10
DPP v Majewski (1977) AC 433 (H.L)
R v Allen  AC 1029
Section 8 of the Criminal Justice Act 1967
R v Lipman  1 QB 152
Att.-Gen. For Northern Ireland v. Gallagher  A.C. 349
R v Belfon  1 WLR 741
DPP v. Majewski (1977) AC 433 HL
R v. Mowatt  1 QB 421 C.A
R v Parmenter  3 WLR 914.
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