Negate provocation

It is likely Mo's application for provocation would be struck out along the same lines. Prior to killing Bill, Mo wrote a long letter declaring her unhappiness and than took the children out of the house. The courts may declare that this gave time to Mo to consider her thoughts and premeditate her actions (a cooling off period). On these grounds the plea of provocation may not suffice as there were no 'sudden loss' of self-control. The ruling of Duffy however, may not be used to argue that provocation cannot operate as a cumulative process.

In the later case of Ahluwalia15, the courts addressed the issue that a series of acts and words over a period of time may amount to provocation. The concept of a 'slow burn' reaction was considered. This occurs when women whom are subjected to violence over a period of time, gradually build up to a reaction, amounting to a loss of self-control, as a pose to an impulsive reaction which is the main feature of cases which establish provocation successfully. Lord Taylor explained the current position of the courts in regard to this matter.

'We accept the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the 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 will be that the prosecution will negative provocation'.

The defence of provocation has been criticised by feminists, whom suggest it is a predominantly male defence, as it favours the impulsive reaction of men, yet dismisses the 'slow burn' reaction of women whom are victims of the same provocation, yet react differently due to their nature and psychology. As the case of Duffy illustrates the courts are not ignorant of this issue yet due to binding effect of precedent, the decision to change the law remains with the houses of parliament.

A separate issue which applies to defences both provocation and diminished reasonability is the condition of battered woman syndrome. The relevance of the condition to provocation is that it may be considered as a relevant characteristic under the 'reasonable man' test. This was expressed by Lord Taylor CJ in Thornton. 'The severity of such a syndrome and the extent to which it may have affected a particular defendant will no doubt vary and is for the jury to consider. First, it may from an important background to whatever triggered the actors reus…

Secondly, depending on the medical evidence, the syndrome may have affected the defendant's personality so as to constitute a significant characteristic… 'It is interesting to note here that the Jury failed to disclose whether the charge was reduced to manslaughter on grounds of provocation, or diminished responsibility18. The gives rise to the assumption that the law is unclear in this area, and therefore when assessing Mo's defences it is important to identify the legal implications of battered woman syndrome in both areas.

At present a strong alternative defence to a charge of this nature, lies with diminished responsibility. This defence has been referred to (although not explicitly) in statute19, and as provocation it remains to be a partial defence, only relevant to the charge of murder. There are three main conditions required for this defence. Firstly there must have been an abnormality of the mind apparent, at the time the crime was committed. An abnormality of the mind has been defined by Parker CJ as: 'A state of the mind so different from that of an ordinary human beings that the reasonable man would term it abnormal.

'20 The jury determines this by judging medical evidence and with acts or statements of the accused. 21 The abnormality must arise from one of the causes specified in parenthesis. In addition: the abnormality of the mind arise from one of the specified causes, and must have substantially impaired the metal responsibility of the defendant. In factual terms this can be interpreted as: the influence of a mental condition (recognised by law), which affects the ability to make a reasonable or moral judgment, making the individual less culpable for their actions and ultimately the crime that was committed.

Although no condition is explicitly mentioned in relation Mo's mental health, there is a possibility of that Mo was suffering from battered woman syndrome, considering that she was beaten frequently over a period of time. The condition is accepted as a specified cause, and has been included in the British classification of mental diseases since 1994. Battered woman syndrome was successfully classified as an abnormality of the mind in the case of R v Robson (1998)22, leading to a retrial of the case. This may indicate that Mo has a reasonable chance of securing the defense of diminished responsibility.

This will depend however, on whether the jury is satisfied with: the medical evidence, the actions and statements of the defendant as well as the considerations given to moral culpability. Diminished responsibility may appear to be more attainable to women when compared with provocation. However, this is not to suggest that it is a popular alternative. The defense of diminished reasonability gives rise to a presumption that the accused suffers from a mental deficiency, which may not accurately reflect the status of the defendant. This is why it is important to consider all aspects of the defenses.

A further defense to the charge of murder is intoxication. Intoxication alone does not amount to a defense; it is of no significance to the court if the defendant argues the crime would not have occurred had they had been sober23. Where intoxication does become material to the case, is when the defendant was intoxicated to such a degree, that they were unable to from the mens rea necessary for the crime. The defense of intoxication is applicable to crimes of specific intent only, which murder is. Intoxication may work in conjunction with insanity or diminished responsibility.

However, in regard to insanity24, the intoxicant would have to from a disease of the mind. In respect of diminished responsibility, the intoxicant would have to resulted in an abnormality if the mind. Both however, rely on medical evidence and in the facts given to us, no such information is provided. Furthermore, Mo's consumption of alcohol was not described to the extent of an alcoholic, therefore it is unlikely that this will amount to a disease or even abnormality of the mind. Mo appeared to have to use anti -depressants more frequently, as the facts describe her as an addict.

Although the effects of drugs and alcohol are usually judged along the same line, sedative drugs such as anti depressants may be seen to function in a separate context, which do not result on making the consumer more aggressive or unpredictable25. This suggest that this defense is particularly limited in regard to Mo as a defense to the charge of murdering Billy. Having discussed the liability of Mo in relation to Billy, our attention must now be drawn to legal consequences surrounding Mo and John. Mo is again likely to be charged with murder. The actus reus was the unlawful attack on John with the shovel.

But for Mo striking John on the head with a shovel, he would not have died. As no other parties were involved, it is likely that this will amount to both factual and legal causation. Now we may turn to the question of intention. It would be difficult to dispute, that death or grievous bodily harm was a virtual certainty if one was to strike someone on the head with a shovel. This may infer the necessary malice and may even amount to express malice if the jury considers the nature of the attack. The use of a weapon is generally regarded as a good example of where an intention to kill is easy to identify.

It may also be deemed significant that Mo struck the John's head in particular, as it is likely to cause the most damage to a person. The defense of Mo may have found it easier to argue against the notion of malice, had the target been a less consequential part of the human anatomy, such as the limbs, torso or back. Mo still has a chance of escaping liability from murder, if a successful defense can be pleaded successfully. Mo may reattempt to establish provocation. The homicide act26 refers to provocation as something said or done, or both.

John taunted Mo about drinking, taking drugs and called her a liar in relation to her allegations of Billy's violent behavior. John than went to say how Mo is blameworthy and will go to prison, without the chance of seeing her children. The courts would than seek to determine whether there was a sudden 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'27, (subsequent to the provocation). As established earlier, the longer the delay of the reaction the more the prosecution will be likely to negate provocation.

Mo however, acted immediately by picking up a near by shovel and attacking John with it. This type if immediate response is more favorably regarded as a sudden loss of control, as it leaves small suggestion of any premeditation. Mos' defense would also than attempt to satisfy the 'reasonable man' test. The provocation may suggest that a reasonable man in such a circumstance would not have acted as Mo did, indicating her actions were excessive and unreasonable in the circumstance. However, in the similar case of Morhall29. The defendant was a addicted to glue sniffing and when taunted about it, reacted by killing the provoker.

He was initially convicted if murder, but than the House of Lords reversed the decision on the grounds that the addiction should be taken into account as a relevant factor. Lord Simon of Glaside emphasized: '… in determining whether a person of reasonable self-control would lose it in the circumstances, the entire factual situation, which includes the characteristics of the accused, must be considered. '30 The case law appears to have affirmed the decision, that relevant characteristics of the accused may be considered by the courts; however there is uncertainty in regard to the relevance of mental conditions.

Although Mo is described as addicted to anti-depressants, her use of alcohol and potential of battered woman syndrome may complicate matters. Fro example, the case of Newell31 rejected the factor that the defendant suffered from chronic alcoholism in light of provocation. Furthermore, battered woman syndrome has been identified as a possible relevant feature in Ahluwalia and Thornton yet nether explicitly link the relevance of the condition to the i) the reasonable man test and ii) whether there was a degree of self control expected from a reasonable man.

It is also important to consider how the law would operate if Billy and John survived their attacks yet suffered from serious injuries. In relation to Billy, Mo is likely to be charged with attempted murder, or wounding with intent. No harm is necessary for attempted murder. All that is necessary, is an intention kill32 and evidence that the defendant acted 'more than merely preparatory' in an objective of murder33. An intention to kill can be established the same way as in murder. One may apply the test of virtual certainty34. The issue before the jury would be whether death was a virtual certainty when Mo doused Billy's bed with petrol.

If the jury was not satisfied beyond reasonable doubt that the actor intented to kill, but an intention cause grievous bodily harm was apparent, the charge of attempted murder will fail. This does however; give rise to a possible conviction of wounding with intent. Wounding or causing grievous bodily harm with intent has been defined by section 18 of the OAPA Act 4861 as: '35Whoever shall unlawfully and maliciously by any means whatsoever wound or cause serious bodily harm to any person with intent to do some grievous bodily harm to any person… '

The actus reus is the unlawful cause of grievous bodily harm, in terms of the facts: this occurred when Mo set fire to Billy's bed while he slept, and the striking of John's head with a shovel. The substantial cause of injury will suffice for the meaning of 'cause' referred to by the Act. As discussed earlier, both incidents satisfy the 'but for test', meaning it would be difficult to raise issues of causation. Grievous bodily harm is referred to a 'really serious harm'36 In respect of the intention; the courts may infer an intention to cause grievous bodily harm if it was virtually certain to occur37.

The use of a weapon does arguably make this intention significantly more visible to the courts, making it difficult for the defense to negate the mens rea. Mo made use of a shovel with John, and petrol and fire with Billy, both are likely to be regarded as weapons, and thereby contribute to an implication of intention. By comparison to the charge of murder, the charge of attempted murder or wounding with intent offered a much higher number of defenses. Without murder, Mo could not rely on provocation or diminished reasonability.

The conviction of grievous bodily harm appears more attainable when compared to the charge of murder. It is a possibility that Mo could reduce the charge of Billy's murder to voluntary manslaughter by arguing diminished responsibility, and argue provocation in relation to John. The non-fatal scenario would be likely to result in convictions of attempted murder, or grievous bodily harm. An interesting note is that the sentence of life imprisonment can be given in conclusion of any the charges mentioned.