Crime XXXVII – Diminished Responsibility VI

In R v Hendy (2006) the accused a 16-year-old had without doubt some sort of mental impairment as a result of a head injury that he suffered from as a child. He was callous and reckless and gave little thought to his own safety and at times had endangered his own life. On the night of the incident the accused had been drinking heavily and had attempted to take his own life but he was stopped by friends. That night once he’d returned home, still drunk, he walked out into an alley with a knife and stabbed a man to death. The accused was arrested.

At the trial it was held that the accused did not have to show that the mental impairment would have caused him to kill, under the circumstances, as per R v Egan and the court followed the decision in R v Dietschmann (2003). In addition to that if the accused satisfies the conditions of S. 2 of the Homicide Act 1957 the verdict that would be returned is that of manslaughter.

When it comes to diminished responsibility the more bizarre the crime the higher the chances or the probability that the accused will have a conviction of murder reduced to that of manslaughter and the reason for this is that a normal man or an ordinary man or a reasonable man for the matter will not be able to envisage these crimes, let alone commit them and therefore it stands to reason that the accused was most likely suffering from some sort of mental impairment or damage to the mind, at the time he or she committed the act:-

In R v Byrne (1960) the accused strangled a young woman to death at the YMCA. After killing her he mutilated her body. At his trial, evidence was submitted that the accused suffered from an impairment of the mind that induced sexual perverseness. He had been suffering from the condition since a young age. The jury convicted for murder. The accused appealed and the appeal was allowed.

In R v Fenton (1975), the accused after he’d been drinking heavily shot a policeman and drove off in his car to a club where he shot and killed more people, 3 more to be precise. The accused was charged with murder and he raised the defense of diminished responsibility. Because the accused was suffering from an inherent mental disability he was convicted for manslaughter instead of murder.

Someone who suffers from a mental illness or other conditions like acute depression can also raise the defense of diminished responsibility if the killing was done on compassionate grounds. In Price (1971), The Times, 22 December 1971, the accused allowed his terminally ill son to drown. The accused was arrested and charged but he was convicted not of murder but of manslaughter and the killing of his son was not seen as murder because the accused had allowed him to drown out of compassion and the accused’s decision was linked to his long-term depression.

In R v Sanderson (1994) the accused hit his girlfriend over the head with a wooden stave. At the trial the defense adduced evidence to show that the accused suffered from acute paranoia, in addition to being a drug user, and the paranoia coupled with the drugs had prompted the accused to kill his girlfriend. The accused was tried and it was held that the accused was guilty only of manslaughter and despite the fact that he was on drugs the accused’s abnormality of mind was inherent and something that he had suffered from since he was child

The defense of diminished responsibility is different to the defense of insanity and the former is reliant on satisfying the conditions of S2 of the Homicide Act 1957 while the latter is reliant on the M’Naghten rules as per R v Rose (1961) (Privy Council).

In R v Rose (1961) (Privy Council) the accused was a prisoner who stabbed a supervisor for refusing to give him the key to the gates. He was tried and the judge directed the jury in accordance with the rules for insanity (the M’Naghten rules). The accused was convicted. The accused appealed and the appeal was allowed.

Finally, Battered Women’s Syndrome (BWS) is a mental illness that was recognized as such in Britain in 1994 and an accused who commits murder while suffering from BWS can successfully raise the defense of diminished responsibility see R v Hobson (1997).

Copyright © 2018 by Dyarne Ward

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Crime XXXVI – Diminished Responsibility V

In R v Ahluwalia (1993), the accused was constantly abused by her husband. The type of abuse included beating her daily and taking her money. In addition to that he was also having an affair with another woman. On the night of the incident, after subjecting his wife to verbal abuse, the accused threatened to beat her up the following morning.

Once the victim was asleep the accused doused her husband with petrol and set him alight. She was arrested and tried for murder. She raised the defense of provocation but the defense of provocation in line with the decision in R v Duffy (1949) was denied. The accused was convicted for murder and the accused appealed raising the defense of diminished responsibility. The appeal was allowed on the grounds of diminished responsibility however the judge did stress that under normal circumstances both defenses should be raised in the first instance otherwise the defense might exhaust one defense before attempting another. It was decided that the accused was not guilty of murder and a retrial was ordered.

In R v Sanderson (1994) the accused hit his girlfriend over the head with a wooden stave. At the trial the defense adduced evidence to show that the accused suffered from acute paranoia, in addition to being a drug user, and the paranoia coupled with the drugs had prompted the accused to kill his girlfriend. The accused was tried and it was held that the accused was guilty only of manslaughter and despite the fact that he was on drugs the accused’s abnormality of mind was inherent and something that he had suffered from as a child and regardless of the fact whether he was on drugs or not, the abnormality of mind, under the circumstances, would have most likely have caused him to act or react in the manner that he did.

In R v Hobson (1997) we once again consider the implications of BWS or Battered Women’s Syndrome. At the initial trial the accused was charged with killing her husband. Her husband was an alcoholic and he often abused his wife while he was drunk. The accused stabbed him with a knife and during her trial she raised the defense of provocation and self-defense. The defense of provocation was rejected as was the defense of self defense and the accused was convicted of murder.

The initial trial was in 1992. In 1994 BWS or Battered Women’s Syndrome was recognized as a mental illness in Britain and the accused appealed. Her appeal was successful. A retrial was ordered and the accused’s conviction for murder was substituted with that of manslaughter.

Where the accused commits murder because of the side-effects of drug taking the accused cannot rely on the defense of diminished responsibility. In instances where the accused suffers from a mental illness or an impairment of the mind and further aggravates the situation by taking drugs and other illegal substances the situation is similar to that of the accused who suffers from a mental illness and then goes on to kill another while he or she is drunk see R v Connell (1997).

The question that is to be asked is if the mental illness was sufficient to constitute an abnormality of the mind without taking into account the fact that the defendant had been drinking and would that abnormality of mind have driven the accused to kill without the influence of alcohol? see R v Egans (1992).

The test in R v Egans (1992) however was reversed in R v Dietschmann (2003). The accused who was very close to his aunt received news that she had died while he was in prison. He reacted badly to the news and attempted suicide and was put on medication. Following his release from prison, still unable to come to terms with his aunt’s death he started drinking heavily and two weeks after his release he was drinking with some friends when an argument broke out and the accused rather brutally kicked the victim, one of the friends who was drinking with him, to death. The accused was charged and convicted for murder. The accused appealed.

It was held that being drunk does not give rise to the defense of diminished responsibility and it only does so if the alcohol has caused some sort of permanent damage to the mind. However, it is also possible to say that the defendant would not have killed had it not been for the alcohol and while alcohol does not cause an abnormality of the mind unless there is permanent damage done as a result of excessive drinking, it does alter the characteristics of the accused. The appeal was allowed and a retrial was ordered.

Copyright © 2018 by Dyarne Ward

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Crime XXXV – Diminished Responsibility IV

Diminished responsibility and insanity are not the same thing see R v Rose (1961) (Privy Council). In R v Seers, the accused suffered from chronic depression and stabbed his wife. The accused was charged with murder and at the trial the judge directed the jury that they should only find the accused guilty of manslaughter if his depression bordered on insanity. The accused appealed on the grounds that the judge had erred in his direction and the court in line with R v Byrne (1960) held that in order for the defense of diminished responsibility to be raised the accused had to establish abnormality of mind as per S.2 of the Homicide Act (1957). The accused was found to be guilty of manslaughter.

It is normally a good idea to produce medical evidence when raising the defense of diminished responsibility and while the jury may refuse to take into account or consider the medical evidence, they can do so if they find that the medical evidence has been tampered with see Walton v The Queen (1978) (Privy Council) or if the interests of the public are better served by a conviction see R v Sutcliffe (1981), they would normally take into account the medical evidence that is presented.

In R v Reynolds 1988 the accused was suffering from post-natal depression, after she’d had a baby without the knowledge of her family and during an argument with her mother, she clubbed her mother to death with a hammer. At the trial, the accused raised the defense of diminished responsibility and the defense produced medical evidence to support her claim. The accused was convicted of manslaughter instead of murder and her defense was successful.

R v Tandy (1989) once again supports the presumption that excessive drinking or alcoholism in itself is not sufficient to raise the defense of diminished responsibility in a murder trial unless the excessive drinking has induced an abnormality of mind within the meaning of S. 2 of the Homicide Act (1957).

In R v Tandy (1989) the accused strangled her 11-year-old daughter to death after she complained to the accused that she had been sexually abused by her stepfather. The accused had been drinking heavily just prior to the incident and at the time of the incident she was very drunk. The accused was tried and convicted for murder. The accused appealed but the appeal was dismissed.

In assessing whether the defense of diminished responsibility can be successfully raised there are two principles to be considered. Firstly, if there are no other factors to be considered, unequivocal and un-contradictory medical evidence favorable to the accused should be accepted and the direction to the jury should be as such and secondly when there are other factors to be considered the medical evidence though unequivocal and un-contradictory should be considered in light of those factors or those circumstances as per R v Sanders (1991).

In R v Sanders (1991) the accused killed his wife with a hammer because she was having an affair with another man. The accused was a diabetic and because of his illness had lost sight in one eye which caused him to sink into depression. The accused was tried and convicted and the accused appealed on the grounds of diminished responsibility. The appeal was dismissed and the accused was held to be guilty of murder based on the principles stated above.

In R v Egans (1992) we once again examine if killing a person while in a state of drunkenness will allow the accused to raise the defense of diminished responsibility. The accused entered a home with the intention to rob and stumbled across an elderly widow. He attacked her and she died as a result of the injuries sustained. He had been drinking heavily prior to committing the act and the accused suffered from an inherent mental disability that was similar to a development disorder.

The court applied the test in R v Gittens (1984) and decided that the question that was to be asked is if the mental illness was sufficient to constitute an abnormality of the mind without taking into account the fact that the defendant had been drinking and would that abnormality of the mind have driven the accused to kill without the influence of alcohol? It was decided that the abnormality of the mind would not have led the defendant to kill and the fact that he was drunk at the time was not sufficient to raise the defense of diminished responsibility.

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Crime XXXIV – Diminished Responsibility III

Earlier on we had said that excessive drinking or consumption of alcohol alone while it may impair the accused’s ability to think and reason clearly will not fall under the category of diminished responsibility but what if the accused suffers from depression and commits murder while he or she was drunk or after he or she had been drinking excessively?

In R v Fenton (1975), the accused after he’d been drinking heavily shot a policeman and drove off in his car to a club where he shot and killed more people, 3 more to be precise. The accused was charged with murder and raised the defense of diminished responsibility.

Under S. 2 of the Homicide Act 1957 excessive drinking will only be a defense if “it either causes damage to the brain or produces an irresistible craving so that consumption is involuntary”

In situations where the consumption of alcohol will not give rise to a defense but the defendant suffers from some type of mental impairment the court will ignore or set aside the fact that the accused had been drinking and look solely at the mental illness to determine if that mental illness was substantial enough to constitute an abnormality of mind that would give rise to a defense. In this instance, it was decided that it would and the accused was convicted of manslaughter.

In Walton v The Queen (1978) (Privy Council) the accused shot and killed a passenger in a car. The accused was charged and convicted of murder and the accused appealed. The appeal was dismissed and the court held that the accused was guilty of murder.

The jury when deciding whether to convict for murder or otherwise is entitled to take into account not only the medical evidence that is submitted by the doctors but also of all the facts surrounding the death and the jury can if it chooses, ignore the medical evidence if it finds that the medical evidence is not entirely convincing.

Medical evidence in most instance is conclusive, in this day and age anyway, but a jury can if it chooses to, ignore it, especially if it feels that the medical evidence may have been tampered with.

In R v Vinagre (1979) the accused suspected that his wife was having an affair with a plainclothes policeman though there was no evidence to suggest that they were having an affair and in a fit of jealousy the accused stabbed his wife 34 times thereby killing her.

The accused was charged and the trial judge accepted the plea for diminished responsibility and hence his life imprisonment was reduced to 7 years. Overall however unfounded jealousy is not a defense and it only becomes a defense under diminished responsibility when it creates a clear mental imbalance.

In addition to that jealousy can only be raised as a defense in an existing relationship or in a relationship that is very much alive. It is almost impossible to plead jealousy if the relationship had ended and the accused is still for some reason or other possessive of his former girlfriend or ex-partner.

In R v Sutcliffe (1981), the case concerns the trial of Peter Sutcliffe the Yorkshire ripper. There was overwhelming medical evidence that was presented to corroborate the contention of the defense that the accused was a paranoid schizophrenic. The judge however ruled in line with the decision in Walton v The Queen (1978) (Privy Council) that the jury were entitled to disregard the medical evidence and the jury accordingly returned a verdict of guilty of murder or guilty of multiple murders.

R v Gittens (1984) reaffirms the decision R v Fenton (1975). In R v Gittens (1984) the accused who was suffering from depression, beat his wife to death after which he returned home and killed his stepdaughter. At the time, he’d been drinking while he was, at the same time, on medication for his depression and often the two don’t agree i.e. anti-depressants don’t go well with alcohol and can easily raise the level of intoxication.

The accused was held to be guilty of manslaughter and the test to be applied was whether the mental illness was sufficient to drive the accused to kill without the consumption of alcohol.

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Crime XXXIII – Diminished Responsibility II

In R v Lloyd (1966) the accused strangled his wife. The accused was arrested and charged. At the trial, the defense brought to light the fact that the accused suffered from a mental abnormality but there was no evidence to indicate that the mental abnormality that he suffered from would impair his ability to reason.

The trial judge directed the jury to the effect that they should decide based on the evidence that was presented to them if the mental abnormality constituted substantial impairment or otherwise. If the jury found that that the mental impairment was substantial then they should convict for manslaughter, otherwise they should convict for murder.

The jury convicted for murder and the accused appealed on the grounds that “abnormality of mental functioning” as per S. 2 (1) of the Homicide Act (1957) meant that the mental impairment should be more than trivial and not substantial in the ordinary sense of the word. His appeal was based on the premise that the level of mental impairment that was required to escape a conviction for murder need only be more than trivial and that the trial judge had erred in his direction to the jury.

The appeal was dismissed and it was decided that the trial judge had not erred in his direction. The jury is to decide whether the mental impairment that the accused in a murder trial raises on a charge of murder is substantial or sufficient to allow the accused to successfully raise the defense of diminished responsibility based on the evidence that is presented.

Now what if the killing is done out of love or compassion? If the accused suffers from a long term mental illness like depression than that is sufficient to raise the defense of diminished responsibility and the accused will not be guilty of murder but rather manslaughter.

In Price (1971), The Times, 22 December 1971, the accused allowed his terminally ill son to drown. The accused was arrested and charged but he was convicted not of murder but of manslaughter and the killing of his son was not seen as murder because the accused had allowed him to drown out of compassion and the accused’s decision was linked to his long-term depression. This type of killing is known as mercy killing or killing on compassionate grounds.

Is this type of killing different from infanticide in cases where the mother knows for certain that the child will not have a good life ahead or will have a life that is filled with hardship, especially when the mother suffers from depression which is an extremely common illness? That is for a court to decide but I don’t think it is too different.

In the United States alone over 17% of the population suffer from depression. These include young mothers who come from broken or dysfunctional homes. Many teenage mothers have either been physically or sexually abused themselves and from personal experience I can say for certain that the percentage of women that are abused is much higher than what is commonly perceived.

Just to thrown in some statistics, over 75% of the women I’ve dated and women that I have met as friends have complained, and it started from a very young age, that they were abused in some way, shape or form and as a result they get depressed and some of them resort to medication and the abuse is normally by a parent or parents or someone either or both parents are close to including relatives or family friends or someone the parent or parents have brought into their lives. From this aspect, the findings of various agencies with regards to sexual abuse is correct.

None of these women can be described as failures in life and some of them went on to have successful careers but the reason I point this is out is because the statics don’t really tell the true story and I’m of the belief that many of these figures have been watered down.

Abortion for example is something that many women go through and while most of us may think that it is a simple procedure, it is something that can have long term or lasting effects and women, some of them anyway, don’t really seem to get over it and it sometimes leaves a lasting impression that later manifests into a mental illness like depression. So, when it comes to things like diminished responsibility or mental illnesses like depression it is best to keep an open mind.

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Crime XXXII – Diminished Responsibility I

The defense of diminished responsibility is raised when an accused is tried for murder and the defense puts forward the argument that at the time the accused committed the act he or she had lost, albeit temporarily, his or her ability to think and reason. It could either be due to a permanent illness see R v Smith (Morgan) (2000) or it could be due to an illness that makes itself obvious or apparent in temporary fits and seizures see R v Campbell (1997).

In R v Dunbar (1958) the accused entered a room occupied by an 84-year-old lady while she was sleeping to steal some money. The lady woke up and the accused fearing that the lady would recognize him picked up a bottle of lemonade that was close by and hit her with it and the injuries that she sustained subsequently led to her death. The accused was tried and convicted for murder.

At the trial, the accused raised the defense of diminished responsibility and he appealed on the grounds that the trial judge had misdirected the jury on the standard of proof required to raise the defense of diminished responsibility. His appeal was successful and it was held that the standard of proof required to establish diminished responsibility was “a preponderance of probability”.

Intoxication or the state of being drunk is not sufficient to raise the defense of diminished responsibility. In R v Di Duca (1959) the accused for a conviction of murder raised the defense of diminished responsibility contending that the state of being drunk had reduced his capacity to think and reason. The judge refused to accept that drunkenness fell under the category of diminished responsibility and the jury convicted accordingly. The accused appealed and the appeal was dismissed. The accused was sentenced to death.

In R v Byrne (1960) the accused strangled a young woman to death in the YMCA. After killing her he mutilated her body. At his trial, evidence was submitted that the accused suffered from an impairment of the mind that induced sexual perverseness. He had been suffering from the condition since a young age. The jury convicted for murder and the accused appealed.

The appeal was allowed. Abnormality of the mind covers all areas and aspects of the mind and it need not be equated to or does not need to correspond with madness. The mind is vast, and to date science has not yet uncovered its full potential and neither has it been able to provide a complete and exhaustive list of mental illnesses. Therefore, a lot depends on the facts. The burden of proving or establishing diminished responsibility lies with the defense.

S. 2 of the Homicide Act (1957) sheds more light on the subject. S. 2 (1) A person (“D”) who kills or is a party to the killing of another is not to be convicted of murder if D was suffering from an abnormality of mental functioning which –

(a) arose from a recognized medical condition,

(b) substantially impaired D’s ability to do one or more of the things mentioned in subsection (1A), and

(c) provides an explanation for D’s acts and omissions in doing or being a party to the killing.

(1A) Those things are—

(a) to understand the nature of D’s conduct;

(b) to form a rational judgment;

(c) to exercise self-control.

S.2 (2) On a charge of murder, it shall be for the defense to prove that the person charged is by virtue of this section not liable to be convicted of murder and S. 2 (3) a person who but for this section would be liable, whether as principal or as accessory, to be convicted of murder shall be liable instead to be convicted of manslaughter.

In R v Rose (1961) (Privy Council) the accused was a prisoner who stabbed a supervisor for refusing to give him the key to the gates. He was tried and the judge directed the jury in accordance with the rules for insanity (the M’Naghten rules). The accused was convicted and the accused appealed.

The appeal was allowed. It was decided that an accused may well be able to appreciate the gravity and consequences of his act and may know that the act was wrong but despite that he is unable to control or curb his actions.

This type of mental impairment (R v Rose (1961) (Privy Council)) is similar to that of those who suffer from impulse control disorders. Kleptomaniacs for example are unable to stop themselves from stealing despite the fact that they know the act is wrong and more often than not they are afraid of getting caught but despite that they continue to steal.

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Crime – Infanticide II

The situation is somewhat more complicated in developing countries because despite some official figures being released, I suspect that the figures in these countries are higher than what they are or what they are perceived to be because a lot of births go unreported especially in rural areas with little or no medical facilities (95% of infants who are killed before they reach the age of 1 are not born in hospitals).

Now a majority of these infants are killed by their mothers usually in the first week of birth but even if they survive the first week they are still at risk and many are killed before they reach their first birthday by either their fathers or their stepfathers.

Overall the figures are high in both developed and developing countries. While a majority of the infants under the age of 1 or below the age of 1 that are killed in developing countries are female the same cannot be said for infants the same age that are killed in developed countries and in the latter there seems to be no gender preference and if anything it is the reverse i.e. more boys than girls below the age of 1 are killed and it appears to be more prominent in some communities than others and once again I’m not going to pinpoint any community because our objective here is to merely learn more about the crime.

The difference in the gender of infants that are killed in developing countries and developed countries once again suggests that there are different factors that come into play but it would be fair to say or surmise that the inability to provide for oneself or the inability to satisfy the needs of the parents with a child in the family or an additional child in the family would be the prime factor that leads to the killing of infants below the age of 1 in developed countries.

The statistics are high and the figures are there for everyone to see and for those who are keen on finding out what the figures are and other salient features with regards to the killing of infants, the figures are normally tabulated under infant homicides.

In many developing countries female infants below the age of 1 are killed because social norms and cultural commitments place a financial strain on the families and the flow of thought may be that regardless of whether it is right or wrong, we are not judges and nor are we empowered in any way to judge anyone, it is better to kill the child than to let her suffer for the rest of her life or as some may see it or perceive it, the lesser of two evils. These are all signs and symptoms of abject poverty.

Overall the infanticide rates in developed countries seems to be dropping and that’s probably due to concentrated efforts by all parties concerned to stem the tide and the fact that parents with small incomes can still continue to raise their children with some help has played a big part in stopping infant homicides from spiraling out of control.

In addition to socio-economic factors, religion also plays a part and the stigma that is attached to children born out of wedlock doesn’t help matters.

Young unmarried mothers below the age of 19 have the highest propensity to commit infanticide and therefore we are dealing with some very young offenders and most of them are not mature enough to think or to reason and they might not even know where to go for help even if they wanted or needed to.

It is difficult to explain a baby for anyone in their teens and it is even more difficult if the parents come from broken or dysfunctional homes. With infanticide we’ve got to look at all these factors before we make up our minds.

A lot of us are most likely under the impression that a majority of people who commit infanticide are illiterate or don’t know any better or have never got past high school but that is sometimes just not the case.

You’d be surprised at who the offenders sometimes are and they commit the act simply because they want a second chance in life and doing away with the baby gives them the opportunity to do just that.

It’s difficult to point the finger at some of these people and say they’re cold blooded murderers just because they’ve fulfilled all the requirements that criminal law needs to convict for murder i.e. they had the intention to kill and having the intention to kill they went on to commit the act.

Copyright © 2018 by Dyarne Ward

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Crime – Infanticide I

Infanticide or infant homicide is defined as the act of killing a child within a year of the child’s birth. While it is a crime that is mostly associated to developing countries or third world countries or countries that are still lagging behind the rest of the world, it is not unusual to come across cases of infanticide in countries that do not fit the tag or label of developing countries and that tends to suggest that there are various other causes or factors that compels the offender to commit the crime other than just poverty.

Technically while it is murder, because the intention to kill is or was always there, in most of these cases it is clear that the parents or parent intended to kill the child, the accused may still have a defense under diminished responsibility because the intention to kill may have been brought on by a psychiatric illness.

Now it is worth remembering that diminished responsibility is different from insanity and despite what most people may or may not think, diminished responsibility is not insanity. The test for diminished responsibility is a “a preponderance of probability” and the M’Naghten rules are used to establish insanity.

I’m going to divide infanticide into two categories i.e. that which occur in developed countries and that which occur in developing countries and the reason I’ve done so is because the underlying factors that compel the offenders to commit the crime are different or rather the offenders are motivated by different factors.

In a leading case in a major European city for example and I don’t really want to go into the details of where and when because our objective here is to understand and appreciate what infanticide really is and to try and acquire some understanding of it and to also realize that it could occur anywhere in the world and not pinpoint any area or region, the offender and her partner were charged with killing up to 8 babies.

The babies were suffocated and wrapped in plastic before the remains were stashed away either is some part of the home or disposed of in garbage bags and at the trial the prosecution adduced evidence to show that the crimes were committed not because the children would place a financial burden on the parents but because the parents wanted to remain sexually active.

I’ve highlighted this because whatever we choose to label it egoistic, machoistic or sadistic, these crimes are motivated by some sort of a mental imbalance and these are the types of situations where we can bring in the defense of the offender not being mentally sound or diminished responsibility.

If we were to use the reasonable man’s test the offender or the accused would no doubt be found guilty but these are crimes or offences that the reasonable man cannot contemplate or offences that are beyond the contemplation of the reasonable man or the ordinary man and therefore it is to some degree pointless applying the test because the only verdict that is going to be returned is that of guilty of murder or guilty of multiple murders.

Sometimes we have no choice but to look into the accused’s state of mind and we do this because we want to prevent these types of crimes from happening again.

The other reason why I have mentioned the case is because infanticide is not always caused by the offender’s inability to financially cope with caring for a child. It is the most common reason but it is not always the sole reason.

There is also a distinction between infanticide and child abuse and unless there is evidence that the child has been abused prior to death, the accused or the offender should not be tried for child abuse. In most instances of infanticide, the child is killed soon after the child is born. Child abuse implies wickedness or cruelty towards another human being, infanticide often implies a sense of helplessness.

The second factor that we should take account of is the age of the offender. Sometimes the offender is just too young and as hard as it may be to believe, some of these offenders just don’t know any better. Many of them don’t know how to survive with a child. Some of them can barely make it on their own and a child is an additional burden that they just can’t cope with.

In most of these cases especially when it is splashed across the front-page that the remains of a baby were found somewhere, the mother is instantly to blame and nothing is ever said about the father. I think we all know that it takes two people of the opposite sex to make babies and infanticide is one of those crimes where we can look at making both the mother and the father responsible or accountable.

Copyright © 2018 by Dyarne Ward

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Crime XXXI – Provocation VII

R v James & Karimi (2006) concerns two separate appeals where the defense of provocation was raised. In the former the accused killed his wife after they’d been separated for four months, rather violently because she’d entered into a relationship with another man. The prosecution was willing to accept a verdict of manslaughter based on diminished responsibility supported by psychiatric reports but the accused refused and chose instead to rely on the defense of provocation which is more difficult to satisfy and is reliant on the reasonable man with the exception of the accused’s age as per DPP v Camplin (1978).

In the latter, the accused was an immigrant who was allowed to stay in England with his wife and soon after his arrival his wife formed a new relationship with another man. His wife’s new partner armed with a knife confronted the accused, verbally insulting him as he did so, and the accused a trained former soldier, disarmed him and stabbed him with the knife. The accused was charged and convicted and he appealed on the grounds of provocation.

Both appeals were dismissed. In the former, because the accused relied on the defense of provocation, the test for provocation was, as far as the courts were concerned, still very much that of “if a reasonable man would have acted or reacted in the manner the accused did” and in the latter taunts, jeers, boos, offending and insulting words directed at the accused may not be sufficient to raise the defense of provocation for murder. Interestingly enough in Karimi the accused did not raise the defense of self-defense but that could have been due to the fact that having disarmed the victim the accused took matters into his own hands and stabbed him.

In R v Hill (2008) the accused and the victim, a homosexual man, were friends. They were occasional drinking buddies and on the night of the incident they’d been out drinking after which they returned to the victim’s flat and the accused fell asleep. The accused claimed that he was awakened in the middle of the night by advances made at him and in response he struck the victim who subsequently hit his head on a chair and died as a result. During the trial, it came to light that the cause of death was not a hit or a blow to the head but rather strangulation.

The jury convicted for murder and the accused appealed for a retrial on the grounds that he had not raised the defense of provocation. His appeal was denied and the Court of Appeal in line with the dictum in R v Ahluwalia (1993) decided that the defense should have been raised in the first instance and the appeal for a retrial was denied.

From what we have seen so far, I think we can at the very least form an understanding of what provocation really is. Words and actions are in most cases not sufficient to constitute provocation and in order to raise the defense of provocation the accused must show that there was tangible impact that prompted the accused to act or react in the way and manner he or she did.

Provocation is a defensive mechanism and not an offensive mechanism and as such the accused does not act and raise the defense of provocation but rather reacts to the situation and then relies on the defense of provocation to reduce the severity of the crime. If the accused were to act then the defense of provocation would not be made available to the accused see R v Duffy (1949).

With regards to acts committed out of jealousy and instances of the Othello Syndrome they generally do not constitute provocation see R v Weller (2003) unless it creates a clear mental imbalance see R v Vinagre (1979).

The test in R v Newell (1980) was disapproved and the courts will not look into whether the response was sparked by a permanent characteristic of the accused as per the majority decision in Luc Thiet Thuan (1997) (Privy Council) but would rather use the test in R v Smith (Morgan) (2000) which is in line with the minority decision in Luc Thiet Thuan (1997) (Privy Council) in that the courts would look for evidence, especially medical evidence to determine if the accused suffered from a long standing mental illness or a mental impairment that had caused the defendant to be provoked or act in the way or manner he or she did. If there is no evidence to suggest that there was a mental imbalance that caused the accused to act in the way or manner he or she did than the accused would be convicted for murder.

Copyright © 2018 by Dyarne Ward

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Crime XXX – Provocation VI

In R v Vinagre (1979) we have an opportunity to study firsthand how the Othello syndrome actually works or operates and it is something that plays on the mind of the offender. The accused suspected that his wife was having an affair with a plainclothes policeman though there was no evidence to suggest that they were having an affair and in a fit of jealousy the accused stabbed his wife 34 times thereby killing her.

The accused was charged and the trial judge accepted the plea for diminished responsibility and hence his life imprisonment was reduced to 7 years. Overall however unfounded jealousy is not a defense and it only becomes a defense under diminished responsibility when it creates a clear mental imbalance.

AG for Jersey v Holley (2005) reaffirms the fundamentals of criminal law in that the test that ought to be applied is the subjective test and the court ought to look at the accused’s state of mind at the time he or she committed the act as opposed to looking into the characteristics of the reasonable man and very much in line with Sir William Blackstone’s principle that “it is better to let ten guilty persons escape than to let one innocent man suffer” in that we are not looking for reasons to convict but rather we are looking for reasons why we shouldn’t convict and when those reasons aren’t there then the jury is left with no choice but to convict.

Granted that the spiraling crime rate, which has been prompted by various factors, has made judges and juries more inclined to convict, but the fundamentals are and still remain the same.

In AG for Jersey v Holley (2005) both the accused and the victim had a drinking problem. It was a stormy relationship to begin with and there was a history of violence for which the accused, the male partner in the relationship had spent some time in prison.

On the day of the incident, both the accused and the victim had been out drinking and while the accused returned home, the victim remained behind and she returned much later in the same day and confronted the accused with the fact that she’d been with someone else. The accused killed his partner with an axe.

He was charged and convicted for murder in the first instance. The accused appealed and the Court of Appeal quashed the conviction and ordered a retrial. He was convicted again and the Court of Appeal quashed the conviction again and reaffirmed the decision in R v Smith (Morgan) (2000).

A breach of a code of conduct prescribed by religion cannot and does not amount to sufficient provocation and if an accused kills a victim for breaching a religious principle, that act of killing will still be considered or regarded as murder and the defense of provocation would not be made available to the accused.

Now let’s briefly look at the crime of infanticide. Infanticide by definition is the crime of killing a baby within a year of the child’s birth. Under normally circumstances, with the exception of a court decision stating otherwise, the killing of an infant will be regarded as murder unless there are extenuating circumstances to suggest otherwise in which case the conviction for murder will be substituted for a conviction of manslaughter.

In Attorney-General’s Reference (No.3 of 1994) we have seen that the Court of Appeal is willing to uphold a conviction for murder if a fetus that is injured while in the mother’s womb is subsequently born and the baby survives for a certain period of time and dies thereafter because of the injuries sustained while it was a fetus.

The House of Lords substituted the conviction of murder for that of manslaughter but that is simply because at the time the act was committed the fetus was not yet born and had the fetus been born and subsequently been killed, the House of Lords might have upheld the conviction for murder.

However, the relentless crying of a newborn baby may be held to be sufficient provocation for a conviction of murder to be reduced to that of manslaughter if the baby was accidently or inadvertently killed see R v Doughty (1986).

With regards to infanticide per se it is generally committed because the parent (in case of single parents) or parents cannot afford to raise a child and it puts a financial burden on them. In such instances, I think we can safely say that the accused will either be convicted for murder or manslaughter depending on the mitigating factors.

Judges may exercise some measure of leniency and the courts may show some sympathy and a degree of clemency depending on the circumstances especially with regards to young offenders. The law doesn’t always intend to punish and sometimes it seeks to rehabilitate.

Copyright © 2018 by Dyarne Ward

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