Thursday, 14 October 2010

To what extent does English Homicide Law provide sufficient defences to women who kill their abusive husbands?

The offences that are available to women in this situation are self defence, provocation and diminished responsibility. The law on self - defence is set out in both statute and common law. S.3 of the Criminal Law Act 1967 states under 3.1 that a person may use such force as is reasonable in the circumstances in the prevention of crime….”. Under 3.2, subsection (1) shall replace the rules of the common law on the question when force used for a purpose mentioned in the subsection is justified by that purpose.

The common law on self - defence was pronounced by Lord Morris in Palmer v R (1971), stating “the defence of self - defence is one which can be and will be readily understood by any jury.…. It is both good law and good sense that a man who is attacked may defend himself. It is both good law and good sense that he may do, but only may do, what is reasonably necessary…”. How should a defendant be treated if he is labouring under a genuine mistake of fact? Lord Lane in Gladstone Williams (1984), stated “ The reasonableness or unreasonableness of the defendant’s belief is material to the question of whether the belief was held by the defendant at all”. This was approved and applied in Beckford v R (1988), suggesting abused women who had killed their husbands would have little support from the law on self - defence. The jury must ask: “Was the force reasonable in the circumstances as D believed them to be?” The answer is generally ‘No’, unless self - induced intoxication is a factor: O’Grady (1987), proving unfair to abused women. The other question facing the jury is whether “D’s characteristics are relevant in assessing the circumstances ‘ as D believed them to be’”? Justice answers ‘Yes’, which would be supportive in this situation. However, Martin (Anthony) (2001) said ‘No’.

Thus, one of the criticisms of the defence, is the lack of clarity and consistency, resulting in a lack of public confidence. There is a fine line between what is self - defence and what is homicide. Introducing, an offence of excessive force, would fair label in such cases and help the balance of defences and vigilantism.
In conclusion, I would argue that the law on self - defence is not sufficient to protect abused women who kill their abusive husbands and that reform is vital in this area.

Provocation was defined in Duffy (1949), by Devlin J as “…. some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually in the accused, a sudden and temporary loss of control..”. Provocation is set out in S.3 of The Homicide Act 1957; “ ….. person charged was provoked… to lose his self - control…whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury…”. There are three stages in the legal test for determining provocation; 1/ Was D provoked, 2/ Did D lose his self - control and 3/ Would a reasonable person have been provoked to lose his self - control and do as he did? It was decided in Thornton that as she had had a calm period before the killing of he abusive husband, this did not amount to a ‘sudden and temporary loss of self - control’. However, the case of Ahluwalia occurred after the discovery of “battered women syndrome”, which states there is a cycle where there is a calm period of emotions, followed by tension building and the a violent episode, and therefore Ahluwalia’s appeal was allowed. There are still a number of criticisms concerning the offence of provocation. The test of “sudden” loss of self - control favours those with quick tempers over those with slow - burning temperaments. The test could still be considered to be gendered towards men. The Law commission has also added strength to the criticism of the offence by stating that it is an ‘ambiguous and potentially misleading phrase”. I therefore argue, that although this is the most developed and successful defence for women who have killed their abusive husbands, reform is still needed to abolish the criticisms stated.

The final defence available is that of Diminished Responsibility. Under S.2 of the Homicide Act 1957; 1/ Where a person kills or is party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind….as substantially impaired his mental responsibility…”. Lord Parker CJ in Byrne (1960) stated “…that if there is a state of mind so different from that of ordinary human beings that the reasonable man would term It abnormal…and that it is a question for the jury…”. The causes that are specified in S.2 say that for Diminished Responsibility to be allowed, there must be “a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury?” Lord Parker in Byrne said that this is a “matter to be determined on expert evidence”. However, S.2; confuses the roles of medical professions and makes the jury’s role although central yet complex and a ‘sympathy lottery’, whilst overlooking social issues. Additionally, that it is pathologising women who kill abusive partners, by suggesting that they have an abnormality of mind.

In Conclusion, I would argue, that Diminished Responsibility is unsuccessful in providing a successful defence and that reform is necessary.

With regard to the article I have included in week two's topical headline blog, concerning the new reforms, it appears that the legislatures hold the same view as I do and that steps are being taken to banish this dated law, individuals abide by at present.


 S.3 Criminal Law Act 1967
Palmer v R (1971) Ac 8143/Gladstone Williams (1984) 78 Cr App R 2766/ Martin (Anthony) (2001) EWCA Crim 2245 8/ S.3 Homicide Act 1957

Beckford v R (1988) AC 130
O’Grady (1987) 3 All ER 420
Duffy (1949) 1 All ER 932 CCA
Thornton (1992) 4 All ER 306
Ahluwalia’s (1992) 4 All ER 889
11/ S.2 Homicide Act 1957
Byrne (1960) 2 QB 396

 















 
 


 
 

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