It is a basic criminal law principle that in the determination of whether a crime has been committed, the elements of the crime based on the statute must first be identified (Ashworth, 2006). Moreover, the crime does not consist of only the bad act or the actus reus but also the frame of mind or the mens rea of the person charged with the crime (Ashworth, 2006). There are two general classifications of homicide offences, i. e. murder and manslaughter (Law Commission No. 304, 2006).
In retrospect, the law which provides for these offenses is Offences against Persons Act 1861 and has been extensively amended and modified by later enactments of the Parliament (CIRP. org web site, n. d. ). Murder constitutes unlawful killing of another with an intention to do so or to inflict serious harm (Law Commission No. 304, 2006). This carries a mandatory life sentence (Criminal Justice Act 2003, s 269). Manslaughter may be committed voluntarily through ‘killing with intent for murder but where partial defence applies such as provocation, diminished responsibility or killing pursuant to a suicide pact” (Law Commission No. 304, 2006).
There are also ways in committing manslaughter involuntarily such as reckless manslaughter or ‘killing by conduct that the defendant knew involved a risk of killing or causing serious harm’, gross negligence manslaughter or ‘killing by conduct that was grossly negligent given the risk of killing’, and unlawful act manslaughter or ‘killing by conduct taking the form of an unlawful act involving some danger of some harm to the person’ (Law Commission No. 304, 2006). Discussion and Analysis For the past years, private violence within families increased and which present legislation failed to address (McColgan, 1993).
The plight of the battered women who kill their abusers, most often their partners, i. e. husband or common law husbands is brought into focus especially in the case of Sara Thornton with citation Regina v. Thornton  1 WLR 1174,  2 All ER 1023,  2 Cr App R 108,  EWCA Crim 6 (McColgan, 1993). In the instant case, Phyllis may be charged for the criminal offence of murder for having unlawfully killed her husband, Graham. The actus reus elements of the crime may be proved as well as the factual causation of Graham’s death to her shooting him.
She may interpose a complete defence of self-defence; however, this may not successfully acquit her from the charge considering that time has already lapsed from the unlawful aggression of Graham. This being the case, there is nothing to defend her against as the aggression no longer exists. Recourse can be made to partial defences albeit if proved would not bring acquittal but a conversion of the charge of murder to manslaughter with an attached penalty of lesser than the mandatory life sentence (Law Commission No. 304, 2006).
As it now stands, there are partial defences of provocation, diminished responsibility and killing in pursuance of a suicide pact. Provocation as a partial defence in the line of court cases have conflicting judicial precedents considering that higher courts disagree on pertinent matters (Law Commission No. 304, 2006). The defendant must prove that she killed the victim unlawfully because she was provoked thereby losing her self-control.
In the case of Thornton, the Court ruled that ‘the subjective element in the defence of provocation would not as a matter of law be negatived simply because of a delayed reaction in such cases, provided that there was at the time of the killing a ‘sudden and temporary loss of self-control’ caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it would be that the prosecution would negative provocation’ (Regina v. Thornton  1 WLR 1174,  2 All ER 1023,  2 Cr App R 108,  EWCA Crim 6).
Another partial defence that can be availed of is that of diminished responsibility. Thus, ‘Where, on the trial of a person for murder, it appears that at the time of the acts or omissions causing the death charged the person 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 disease or injury) as substantially impaired his mental responsibility for the acts or omissions, he shall not be convicted of murder’ (Law Reform Commission, 1997).
Phyllis may rely on the “battered woman syndrome” by showing that she was suffering from it and it made her lose temporarily her self control. This may constitute a basis of actus reus The jury may be convinced that the row may have triggered sudden loss of control by reason of the many years of abuse as a last straw. Moreover, medical evidence may be presented to show the effect and relevancy of the syndrome to her personality (Regina v. Thornton  1 WLR 1174,  2 All ER 1023,  2 Cr App R 108,  EWCA Crim 6).
References Ashworth, A. 2006. Principles of Criminal Law. Oxford: Oxford University Press, 5th ed. CIRP. Org web site. Offences against the person act 1861. Retrieved on October 30, 2007, from http://www. cirp. org/library/legal/UKlaw/oap1861 Law Reform Commission No. 304 2006. Murder, manslaughter, and infanticide. Retrieved on October 30, 2007, from http://www. lawcom. gov. uk/docs/lc304. pdf Law Reform Commission 1997. The defence of diminished responsibility.
Retrieved on October 30, 2007, from http://www.lawlink. nsw. gov. au/lrc. nsf/pages/R82CHP3 McColgan, A. 1997. In defence of battered women who kill Oxford of Legal Studies Vol. 13 No. 4 , pp. 508-529. Retrieved on October 30, 2007, from http://links. jstor. org/sici? sici=0143-6503%28199324%2913%3A4%3C508%3AIDOBWW%3E2. 0. CO%3B2-W&size=LARGE&origin=JSTOR-enlargePage Regina v. Thornton (1995). Retrieved on October 30, 2007, from http://www. bailii. org/cgi- bin/markup. cgi? doc=/ew/cases/EWCA/Crim/1995/6. html