Homicide and Defences - Coursework Example

Homicide and Defences It is the right of the defendant under the law, to defend the allegations which have been made against him, and this defence may occur in a criminal indictment or in a civil complaint. A defence which is presented by the barrister of the defendant, does not rest solely on refuting the allegations. A defence can be relied upon to introduce new material, while arguing, on behalf of the defendant, that even if the alleged charges are in fact true, the defendant has the right to prevail for other reasons which will be presented. The Homicide Act 1957 An act of the United Kingdom Parliament. Its purpose was to serve as a means of reform of the English common law offence of murder in English law. Its primary focus was to abolish the doctrine of constructive malice, reform of the partial defence of provocation, and also incorporating the partial defences of suicide pact and diminished responsibility. Further, it cancelled the use of the death penalty for the crime of murder. Law Commission The Law Commission is proposing reforms, and one must bear in mind that the intent of the commission is not to change the homicide laws, instead the scope of the commission is geared towards removing some or most of the liberality, and pave the way for a more rigid interpretation of the existing laws. This is borne out by the fact that the proposals on reform establishes the fact that it does not intend to change the existing mandatory life sentence for murder, and it is the intent of the commission to offer defences for the infraction in a variances of degrees. The following has been proposed as the sentencing categories for offences which involve homicide: • First degree murder: mandatory life sentence o Intentional killing • Second degree murder: discretionary life sentence o Killing with intent to do serious harm; o Killing through reckless indifference to causing death; • Manslaughter: fixed term sentence o Killing through gross negligence as to causing death; or o Killing through a criminal act which the offender intended to cause some injury or realised might cause some injury.( Law Commission 2004) It is clear that the Law Commission has as its intent, to redistribute the existing principles, and place them into three distinct categories. As such, murder or homicide has been broken down into two degrees. First degree murder is of course the most serious. This sentence will be leveled against a person when it has been decided that not only did the accused commit the crime, but also where premediation to committt the act has also been proven, beyond a reasonable doubt. Second degree murder addresses the matter of intent. If and when it is shown that the intent to kill was not present in committing the act, then the charge will be reduced to murder in the second degree, or even manslaughter.In the event of the latter determination, then a lesser sentence will be imposed. This notion is further supported by the High Court, which states: Although inflicting grievous bodily harm with intent is often (or usually) serious, on occasion it can be committed in circumstances where death was highly unlikely, in the sense that the injury was not obviously life-threatening. Murder, in these circumstances, as the charge, is inappropriate The High Court made it clear that there was a need for two legislative definitions for murder. The two tiered approach would constrict the scope of judges to provide a liberal definition, and would enable a more consistent and fairer approach to homicide.The additional advantage in this instance, (of separating murder into two categories), is the usefulness of the partial defences, which would only be available in first degree murder situations. In that the sentencing in second degree murder cases automatically comes with a discretionary sentence of life in prison, there would not be a foreseeable need for a partial defence, because the mandatory life sentience in all likelihood would not be invoked. Considering the second degree murder charge, the judge would be able to review all of the circumstances, and then render a decision based on his findings. Again, this would be a justifiable bed of comfort whenever the intent to kill cannot be presented beyond a reasonable doubt; however, there is evidence, that there was intent to do serious harm. Diminished Responsibility Whenever this defence tactic is offered to the court to explain why a defendant committed a homicide, the burden of proof is always on the defendant to show that they were suffering from diminished responsibility when the crime was committed. This defence is different from the insanity defence. Diminished responsibility means that there existed at the time, an abnormality of the mind, while the insanity defence is based on a disease of the mind. In general terms, diminished responsibility is caused by a temporary mental or emotional state, which causes the accused to not be in touch with themselves as to how or whether to act at all. On the other hand, insanity is an inherent problem which has a radical affect, and the defendant has no control over actions, and can not discern the difference between right or wrong. In R v Thornton (1992) 1 AER 306 a wife suffering from " battered woman syndrome” walked into her kitchen, took her time and sharpened a knife, and went into the room where her husband was, then stabbed him. The appeal referred to s3 which requires the jury to have regard to "everything both said and done according to the effect which in their opinion it would have on a reasonable man". The appellant argued that instead of considering the final provocation, the jury should have considered the events over the years leading up to the killing. Beldam LJ. rejected this, saying: In every such case the question for the jury is whether at the moment the fatal blow was struck the accused had been deprived for that moment of the self-control which previously he or she had been able to exercise.(Thornton 1992). But in R v Thornton (No 2) (1996) 2 AER 1023 after considering new medical evidence, a retrial was ordered and the defendant was convicted of manslaughter on the ground of diminished responsibility.( Thornton 1996) Similarly, in R v Ahluwaliah (1992) 4 AER 889 a retrial was ordered. The wife poured gasoline on her husband and struck a match, the incident resulted in the death of the husband. Her barrister put forward the defence of diminished responsibility on the ground of "battered woman syndrome" and, she was convicted of manslaughter.(Ahluwahah 1992) Then In R v Humphreys (1995) 4 AER 1008, the defendant after years of abuse from her partner, she lost self control, and stabbed the partner. She told the court that her partners final words, had been the straw which broke the camels back. The defendants psychiatric condition, which was caused by the years of abuse, made the conviction for murder unsafe.( Humphreys 1995). It has not always been easy, nor has it been slam dunk defence, to claim battered woman syndrome, and be assured that the charge of murder would be reduced based on the stated circumstance. However, a number of things have contributed to the legal acceptance, as expressed by Vera Baird, the Solicitor General, said: "When I was a practising barrister I did many court cases defending battered women who killed their violent partners. "The new partial defence of killing from losing self control from fear of serious violence would provide a tailored response to cases like these and make it easier for justice to be done."(Prince & Swaine 2008). This legal breakthrough has been leveraged by a mounting tide of social controversy concerning women at risk. The move comes as the Home Office published a map of domestic homicide, showing wide variations in the numbers of women killed by a current or ex partner[s] across police forces around the country.( Prince et al 2008). Additionally, since most case which are now offering the partial defence of diminished responsibility, and the barristers are compelled in most instances to show a preponderance of medical evidence, there is a move about to do away with the term diminished responsibility as a partial defence, and considering the long term medical nature of the state of mind, it would be termed, ‘recognized medical conditions’. Provocation In sum, section 3 of the Homicide Act 1957:says: When on a murder charge, if there is sufficient evidence where a jury can discover whether the person being charged was in any way provoked, which resulted in his losing of his self-control, then the question arises as to whether the nature of the provocation was so pervasive, that it would cause a reasonable man to commit the act being attributed to the defendant. It is up to the jury to decide. In the jury’s decision, they must take into account the totality of the verbal exchange and the acts, and make the determination of what toll it would have on a reasonable man. Whenever the defence is claiming provocation, then the burden of proof is on the defence to raise sufficient evidences.Subsequent to the defence presentation of evidence, the law dictates that the judge will then decide whether the burden is adequate.In any event, this does not change the prosecutions responsibility to sufficiently prove the initial charges brought against the defendant.Prior to the Act, provocation had to be a form of violence committed by the victim, upon the accused. There were only two notable exceptions to the violent rule: a husband discovering his wife in the act of adultery; and a father discovering someone committing sodomy on his son The Act provided that provocation can be by anything done or said without it having to be an illegal act and the provoker and the deceased can be third parties.( Homicide Act1957) . In R v Duffy (1949) 1 AER 932, Devlin J. said that Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.(Duffy 1949) The law considers that during the ‘normal’ course of events, the expected response to provocation will almost always be an offensive move, However, iof there is a cooling off period, the court almost always will find that the person should have regained the self control. If after the cooling off period, the person persist in pursuing the provoker, their actions will be interpreteded as intentional, and if it results in the death of another, then it will be murder. In R v Ibrams & Gregory (1981) 74 Cr. App. R. 154 the defendants had been terrorised and bullied by the deceased over a period of time so they devised a plan to attack him. There was no evidence of a sudden and temporary loss of self-control as required by Duffy. Even the period of time to fetch a weapon should be sufficient to cool off. In every such case the question for the jury is whether at the moment the fatal blow was struck the accused had been deprived for that moment of the self-control which previously he or she had been able to exercise.(Ibrahms & Gregory 1981) Self Induced Provocation The Privy Council held in Edwards v R (1973) AC 648 that a blackmailer could not rely on the predictable results of his demands for money when his victim attacked him (a policy decision to prevent a criminal from relying on his own wrongdoing as the cause of the subsequent death).(Edwards 1973) In R v Johnson (1989) 2 AER 839, the defendant had become involved in an escalating argument with the deceased and his female companion. When the victim threatened the defendant with a beer glass, the defendant fatally stabbed him with a knife. The judge held that the threatening situation had been self-induced. The Court of Appeal held that s3 Homicide Act 1957 provides that anything can amount to provocation, and there is no reason to exclude responsive actions provoked by the defendant. A conviction of manslaughter was substituted.(Johnson 1989) Abnormality of the mind An abnormality of the mind is a "state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal" (R v Byrne [1960). This can arises from a mental incapacity to reason properly or from an inability to exercise will power to control physical acts.(R v Byrne 1960) The defendant was convicted, for the killing of a young woman. His defence was he suffered from diminished responsibility, as per section 2 of the Homicide Act 1957, and on this basis, he was not guilty of murder, due to his abnormality of mind, he was found guilty of manslaughter.The inherent problems which the court is relegated to deal with, whenever an abnormality of mind defence is presented is an unscientific attempt to assess the ‘step between’; which is when one is considering the accused’s self control the inference arises, he did not resist his impulse, and he could not resist his impulse. This issue must be dealt with on the basis of the evidence, since no scientific measurement of the degree of difficulty which an ‘abnormal’ person exercises in attempts to control their impulses. The Jurors are allowed to take a broad stroke of the canvass and apply common sense assessments of the evidence. Examples of an abnormality of the mind include: post-natal depression (R v Reynolds [1988) battered woman syndrome (R v Ahluwahlia [1992]; R v Hobson [1998]) excessive jealousy (R v Vinagre [1979]) In R v Hobson, her partner was an alcoholic, and during one of their many arguments, in 1992, she stabbed her partner to death. During the trial she claimed her act was in self defence, and there was an interviening issue of provocation. The diagnosis of the psychiatrists at trial was that she was a victim of battered woman syndrome. The problem for her was, not until two years subsequent to her trial was battered woman syndrome recognized in the standard British classification of mental diseases, and therefore, not yet recognized by by the court as a defence, and therefore no basis was found for the defence of diminished responsibility. However, the Court of Appeal was forward looking, and ruled that the evidence should be heard. In view of the Appeal Courts decision, the Crown did not attempt to support the previous conviction as safe.   The mere act of being inebriated may not constitute an abnormality of the mind, unless the craving for alcohol has become involuntary.(R v Tandy 1989). In this case, the defendant was an alcoholic, and she strangled her 11 yr old daughter, subsequent to consuming a bottle of Vodka. The court noted that this was not her normal brand of libation. Her barrister was presenting the defence of abnormality of the mind. The court said in essence, that for any consideration to be given for the consideration of the defence sought, that the days first drink had to be one which was an involuntary act. That the state of mind had to be induced by the disease, which would have sparked grossly impaired emotional responses and negatively impacted her judgment. The court further held that if the first drink was not involuntary, then the drinking which she participated in during the course of the day was also voluntary. As a consequence, the defence of diminished responsibility was not available to her. She was summarily found guilty of murder. Substantial impairment of mental responsibility There must be a "substantial" impairment of mental responsibility. Whether the impairment is "substantial" is defined either according to a common-sense standard or as "more than some trivial degree of impairment but less than total impairment" ( Lloyd 1967). Works Cited R v Ahluwahah (1992) 4 AER 889 R v Byrne (1960) 2 QB 396 R v Duffy (1949) 1 AER 932 Edwards v R (1973) AC 648 R v Thorton (1992) 1AER 306 R v Hobson 1998 Homicide Act 1957 R v Humphries (1995) 4 AER 1008 R v Ibrams & Gregory (1981) 74 Cr. App. R. 154 R v Johnson 2 AER 839 Law Commission Report on Partial Defences to Murder (2004), Part 4 (pp. 78-86) R v Lloyd 1967 Prince R., & Swaine J., (2008) Killing an abusive partner may no longer be murder, Political Correspondent, Daily Telegraph, 29 July 2008 Retrieved on line on 17 August 2008, from www.dailytelegraph.com R v Reynolds (1988) Crim LR 679 R v Tandy 1989 1 AER 267 R v Vinagre 1979 69 Cr App 104 Read More