Crime XXIX – Provocation V

The willingness of the courts to recognize mental illnesses was made clear in R v Smith (Morgan) (2000). Mental illnesses are a common facet of everyday life and one of the most common types of mental illness is depression. Just to give us an idea of how common it is, in the United States alone close to 17% of the population suffer from depression and almost 390 million people worldwide suffer from the illness. It is a subtle illness that sometimes has far reaching affects.

In R v Smith (Morgan) (2000) we are given the opportunity to examine if an accused who is suffering from depression which in most instances is a long-term illness can have a conviction for murder reduced to that of manslaughter because he or she is suffering from depression.

Both the accused and the victim were criminals and while they were drinking they got into an argument over some tools that they had stolen. The argument got heated and prompted the accused to pull out a knife and stab the victim as a result of which the victim died. The accused was charged and convicted for murder and the accused appealed on the grounds that the trial judge had not directed the jury on the mental illness that he was suffering from i.e. depression.

The court of appeal accordingly reviewed the facts of the case and the accused’s conviction for murder was substituted with that of manslaughter. The court decided that the trial judge should have taken into account the accused’s mental condition. The prosecution appealed.

The House of Lords quashed the appeal and based its decision on the dissenting judgment in the case of Luc Thiet Thuan (1997) (Privy Council) and held that the mental characteristics of the accused can be taken into account when assessing if the accused should be convicted for murder or manslaughter.

To date there is no evidence or no scientific evidence to suggest that those that suffer from mental illnesses have a higher propensity or a greater tendency to commit crimes. In anything the evidence suggests otherwise and often crimes are committed by people who have clarity of thought.

In R v Weller (2003) we are once again confronted with the situation where a male partner kills his female partner in anger. The accused and the victim had an argument which prompted the victim to end her 12-month relationship with the accused.

When the victim went over to their flat to collect her belongings, another argument ensued and the accused in anger strangled the victim to death.

The accused was charged and convicted for murder. The accused appealed on the grounds of provocation. During the trial, it became evident that the accused was extremely jealous and possessive and the accused contended that the judge should have directed the jury accordingly. The appeal was quashed.

With regards to murder cases involving partners that result in the male partner killing his female partner because he was overly possessive or jealous – a syndrome that physiatrists refer to as the Othello syndrome or jealousy that is unfounded – the courts are reluctant to accept it as a defense because as per Lawton LJ it is exactly the type of conduct that wives and female ex-partners should be protected against.

The accused however may be convicted for manslaughter instead of murder if there is clear evidence to suggest that the excessive possessiveness and jealousy created a mental imbalance. Having said that these types of crimes are becoming increasingly common and if defenses like the Othello syndrome were allowed, they’d make women all the more vulnerable.

It is difficult under most circumstances to exempt male offenders from crimes against their female partners on the grounds of jealousy or overwhelming emotions or an outpour of emotions especially in this day and age when there are so many counselling and remedial services available.

No matter how we look at it and whichever perspective we view it from there are no reasonable grounds to exempt them and to categorize everyday events or things that occur in the natural course of life as provocation would be absurd and it would, in cases of male partners, place women at risk. The law has to move with the times and has to evolve accordingly and at present overall public sentiment dictates or demands greater freedom for women.

Copyright © 2018 by Dyarne Ward

Leave a Reply

Your email address will not be published. Required fields are marked *