Chapter One

Go to 1.1 Offences - Murder and Manslaughter.

Go to 1.2 Sentencing.

Go to 1.3 Defences against murder.

Go to 1.4 The status of the crime of passion.


1.1 Offences - Murder and Manslaughter

The offence of murder is a common law offence. As such, it is not codified in any particular legislation, but can be found in various cases. Due to this fact, it is difficult to find a single definition of it. However, a classic definition can be found in Coke (3 Inst 47):

"Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any county of the realm any reasonable creature in rerum natura under the king's peace, with malice aforethought, either expressed by the party or implied by law, so as the party wounded, or hurt etc. die of the wound or hurt, etc. within year and a day after the same".

As can be seen in this definition, the offence of murder has many parts, all of which have been clarified in consequent cases and legislation. The first clause describes the "man of sound memory and of the age of discretion". This means simply that the man is not insane within the McNaghten Rules, that he does not suffer from diminished responsibility (following s.2 of the Homicide Act, 1957), and that he is over the age of criminal responsibility, which is ten (Smith and Hogan, 1992). The next clause concerns where a killing takes place. It is no longer the case that the murder has to take place within "any county of the realm". Where murder and manslaughter are concerned, the English court has jurisdiction over offences committed abroad, if it was committed by a British citizen (as laid out in s.9 of the Offences against the Person Act 1861 and s.3 of the British Nationality Act 1948 (Smith and Hogan, 1992)).

According to Coke, the victim is the "reasonable creature in rerum natura". This is basically the person who is the victim. This seems straightforward, but problems have arisen regarding this subject, as it became apparent that there are times when it is uncertain whether a person is alive or not. It has therefore been stated that a child is a person "in being" when it has been completely expelled from its mother (Poulton (1832) 5 C&P 329) and be alive having an existence independent from its mother (Enoch (1833) 5 C&P 539). Also if a person is "brain dead" he cannot be the victim of a homicide (Malcherek and Steel [1981] 1 WLR 690) (Allen,1996). The phrase "the King's peace" implies everyone in the world, except for an enemy alien (Allen,1996). Malice aforethought was explained in Moloney [1985] AC 905, where it was stated that malice aforethought consists in an intention to kill any person or an intention to cause grievous bodily harm to any person (Smith and Hogan, 1992). The final clause in Coke concerns the year and a day rule, whereby if the victim dies within a year and a day, the defendant is charged with murder. This rule was abolished by the Law Reform (Year and a Day Rule) Act 1996 (Law Reform (Year and a Day Rule) Act 1996, 1996019.htm).

Basically then, murder is when a person causes the death of another person with an intention to kill them or to cause grievous bodily harm. This is the case unless the killing is justified, that is, through the withdrawal of treatment, when the defendant was acting in self-defence or trying to prevent a serious crime. If the homicide was committed through provocation towards the defendant or due to the defendant's diminished responsibility the defendant is not guilty of murder, but of voluntary manslaughter (Lacey and Wells, 1998).

Manslaughter covers all homicides which are not murder, but are still unlawful. The aspect which distinguishes murder and involuntary manslaughter is the intention of the defendant. This is where the defendant does not have the malice aforethought, but their state of mind is such that the law still deems them culpable. An involuntary manslaughter includes manslaughter by an unlawful or dangerous act (Smith and Hogan, 1992) and manslaughter due to recklessness or gross negligence. The defendant does not deliberately kill the victim, but due to their actions the victim dies. Where voluntary manslaughter is concerned however, the defendant may still have the malice aforethought of murder, but there are mitigating circumstances existing which reduce the crime to a lesser type of homicide, which will be discussed later in this chapter.


1.2 Sentencing

The penalty for murder also suggests a difference between murder and manslaughter. Until the Murder (Abolition of Death Penalty) Act, 1965, murder was punishable by hanging. S.1 of this act abolished this punishment and described the punishment that would take its place. A court must now sentence a person convicted of murder to imprisonment for life. Life imprisonment does not literally mean imprisonment for life - it is an open-ended sentence, with a recommendation of a minimum period which needs to lapse before a prisoner is considered for release (s.1(2) of the above act) (Smith and Hogan, 1992). When this minimum period has lapsed, it is the job of the Home Secretary to decide whether the prisoner should be released. Life imprisonment is the mandatory sentence for murder - the only criminal offence which does not sentence according to the individual case. It is also the only offence where the final period of imprisonment is decided by the Home Secretary and not the presiding judge (Lacey and Wells, 1998). There is much debate on the propriety of this system (Lord Bingham, 1998), which will be discussed at greater length in Chapter 3.

Manslaughter carries with it a discretionary life sentence, meaning that a life sentence is an available option for the judge, but it is not mandatory that it be given. The distinction between murder and manslaughter arose in the sixteenth century, and remained of utmost importance, as manslaughter was not a capital offence (Lacey and Wells, 1998). The two offences are still separate today, with the punishment for manslaughter being less severe.


1.3 Defences against murder

A murder can be reduced to manslaughter if a defendant claims either provocation or diminished responsibility. A homicide can be deemed lawful if it is committed in self-defence. Self-defence cannot therefore truly be called a defence - a prerequisite for murder is that it is an unlawful killing. If the defendant kills the victim in self-defence it is seen as being lawful, and so the defendant would be acquitted as part of the actus reus would be missing. A defence on the other hand would exist if part of the mens rea were missing (Allen, 1996) - for example, if there is inadequate intent and premeditation is missing, provocation might be claimed. When self-defence is maintained, it is the burden of the prosecution to disprove this beyond reasonable doubt, as stated in Beckford v R [1988] AC 130.

Self-defence is provided for in both common law and also in s. 3 of the Criminal Law Act, 1967, which states:

(1) A person may use such force as is reasonable in the circumstances in the prevention of crime, or in effecting or assisting in the lawful arrest of offenders or suspected offenders or of persons unlawfully at large.

This section does not refer to the right of self-defence directly, but only to the prevention of a crime (Allen,1996). However, these two things are often indistinguishable. For example, as the right to defence is not only with regard to self but also to defend others, the defendant may have been trying to save another from being assaulted. This would not only be defence but also preventing a crime. The law for both situations is the same, hence the reason why s. 3(1) applies to self-defence.

An important aspect in the pleading of self-defence is whether the force used is reasonable. For example, it is not reasonable to kill someone as a reaction to them slapping your face. This issue has recently been illustrated in the case of Tony Martin. He was a farmer who "defended" his property and himself by shooting a burglar. However, Martin shot the burglar in the back, while the man was running away. He was therefore unable to successfully plead self-defence. Many members of the public believe that this is the wrong outcome, and that people should have the right to defend themselves and their property in this way (Sapsted, D, no date). However, the reason he could not rely on self-defence was because it was not reasonable force that was used. The burglar was running away, and so no longer held any threat towards Martin.

It is often not easy to tell whether the force was unreasonable. In such cases, the judge will indicate factors that need to be taken into account, and also point out that the force must be proportionate to the attack. It is also stated however that:

"If a jury thought that in a moment of unexpected anguish a person attacked had only done what he honestly thought was necessary that would be most potent evidence that only reasonable defensive action had been taken." (Lord Morris in Palmer [1971] 1 All ER 1077 at 1078.)

This idea of a reasonable response to something is also an aspect of the law of provocation. Provocation can be used as a defence only for murder. It cannot be used as defence even for attempted murder, as it is an issue of showing inadequate intention and premeditation, which would be present in a case of attempted murder (Allen, 1996). If provocation is successfully proved, the charge of murder is reduced to a charge of manslaughter. The classic common law judgement regarding provocation is found in Duffy [1949] 1 All ER at 932n:

"Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary 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."

Under this common law, it was only an act that could provoke an attack. It was also necessary to show that the violence used was commensurate to the violence used against the defendant. For example, it was not acceptable that a knife be used against fists - however, fists against fists was justifiable (Allen, 1996). This has since changed, as the law qualified by Duffy in 1949 was modified by the Homicide Act, 1957, section 3. This section stated that:

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by thing done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man."

This changed the previous law of provocation in several ways. Common law stated that words alone could not be provocation (Allen, 1996). Provocation had to come in the form of actual violence by the victim to the accused, with two exceptions: discovery of a wife in the act of adultery by the husband and discovery of someone committing sodomy on a son by his father; this was seen as just provocation (Holmes v DPP [1946] AC 588). The 1957 Act however states that provocation can be by anything done or said. It does not need to be an illegal act, but simply something that provokes a person to commit the act (Allen, 1996).

The act also changes the identity of the provoker. The common law states that the deceased has to be the provoker. However, the act does not limit the provocation to this - the provoker can be a third party, as can the deceased. This was confirmed in the case Davies [1975] QB 691. As long as there is evidence that the accused was provoked, the identity of the provoker is not an important issue.

Another issue which was changed by the 1957 Act is the concept of a reasonable relationship between the provocation and mode of attack, as laid out in Mancini v DPP [1942] AC1. It was impossible that this concept could exist following the act, due to the new idea that provocation could arise from words alone. In Camplin [1978] AC 705, it was stated that the law of provocation as stated in Mancini was no longer to be followed. If a reasonable man would have acted in the same way that the accused did, then the method of retaliation is irrelevant, and the accused will be charged only with manslaughter (Allen, 1996).

The other defence to murder which reduces the charge to one of manslaughter is diminished responsibility. This was introduced by section 2 of the Homicide Act, 1957. Previous to this, the only defence that was available for mentally disordered offenders was one of insanity. This was an unpopular option, as it held mandatory admission to a special hospital for the criminally insane, such as Broadmoor. Most mentally disordered offenders now rely on diminished responsibility. According to Andrew Ashworth (as quoted in Lacey and Wells, 1998), between 1990 - 1992 there were 184 cases which relied on diminished responsibility. Just over half of these were dealt with by a hospital order; 12% were given life imprisonment; 16% were given prison sentences below 4 years and 12% were given probation orders. Section 2(1) defines diminished responsibility as that:

"Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes of induced by disease or injury) as substantially impaired his mental responsibility for his acts and omission in doing or being a party to the killing." (Lacey and Wells, 1998).

To prove diminished responsibility medical evidence showing abnormality of mind is essential, as was shown in Dix (1981) 74 Cr App R 306. Section 2 does not ask for proof that the abnormality of mind caused the killing, only that the defendant was suffering abnormality of mind to such a degree that their mental responsibility for their actions was impaired (Allen, 1996). The phrase "abnormality of mind" was defined in Byrne [1960] 2 QB 396, as a state of mind that is so different from an ordinary person that a reasonable man would find it abnormal. This means that any attribute that might be experienced by the reasonable man, such as hatred, rage or jealousy, alcohol or drugs, is not classed as producing an abnormality of mind. However, there have been cases where rage or jealousy have produced a s. 2 verdict - that is, diminished responsibility has been proven. These cases include Miller, The Times, 16 May 1972; Asher, The Times, 9 June 1981; and Coles (1980) 144 JPN 528. As has already been suggested, intoxication cannot give rise to a s. 2 verdict. However, alcoholism can, if it can be proved that continuous drinking has had an adverse effect on the brain, and created impairment of judgement and emotional responses. This is shown in Tandy (1988) 87 Cr App R 45 and Inseal [1992] Crim LR 35 (Allen, 1996).

There is an argument that the defence of diminished responsibility is unfair towards women (Lacey and Wells, 1998). Hilary Allen (1987, as discussed in Lacey and Wells) argues that mental disorder is seen as abnormal in men, but not in women - women are seen "by nature" not to be rational. She surmises that this is unfair to both men and women - that women are pathologised while men who are legitimately mentally ill are punished. Lacey and Wells also suggest that the pre-menstrual syndrome could be said to create diminished responsibility. Unfortunately, this suggests that women offenders might be seen as psychiatric cases (Ahluwalia [1993] Crim LR 63). However, it has been used successfully in a defence of diminished responsibility in the case of Smith [1982] Crim LR 531, CA.


1.4 The status of the crime of passion

These are the main defences to homicide - the crime of passion is partly contained in all these defences. In the criminal justice system of England and Wales, all offences are treated individually, with the attributes of each crime taken into account. The exception for this is murder, as it has a mandatory life sentence. The defences described above, with the exception of self-defence, can only be applied as a defence to murder for this reason. Other offences do not need such defences, as they are considered according to their own attributes. The crime of passion would also need these defences if it were an offence, so I suggest that the crime of passion could only be treated as a defence to murder, and not an offence in its own right.

It is difficult to define a crime of passion effectively. Each study of the subject takes a slightly different meaning. Besse, (1989) describes the crime of passion, in the Brazilian context, as "homicides resulting from conflicts related to love and/or sexual relations". Mullen (Mullen, 1993) describes it as being a "killing motivated by jealousy", explaining that the most frequent wrongdoing is infidelity, and the usual passion is sexual jealousy, while Dressler (Dressler, 1982) takes it to mean a killing in sudden quarrels, which are usually familial and involve an element of jealousy. Weir (Weir, 1992) describes them as "typically impulsive killings which are inspired by overwhelming emotion such as jealousy". I would concur with this description, adding that they are mainly committed within a familial unit, or by lovers. However, using such a definition might include the crime of infanticide, which is often committed by the mother who is suffering from postnatal depression. It is important to specify here that this study is not including infanticide as a crime of passion, although strictly speaking it is. The reason for this is that it is slightly different from other crimes of passion, and is already dealt with separately in the criminal justice system.

At present, the crime of passion has no specific place within the criminal justice system of England and Wales. A person who commits a crime of passion is unable to use its characteristics as a defence in its own right. It is possible however that any of the defences already discussed could include the issue of the crime of passion.

The most viable defence for the crime of passion is that of provocation. As has already been mentioned, the common law definition of provocation provides that it is some act which renders "the accused so subject to passion as to make him or her for the moment not master of his mind" (Duffy). At present this is the closest the crime of passion is to being incorporated in the criminal justice system. The classic crime of passion is when a man catches his wife red-handed in the act of adultery. The law of provocation has always incorporated this into its principles, as is shown in the case of Holmes v DPP [1946] AC 588, where it is held that this is one of the two non-violent acts that may legally cause provocation.

If the defendant has committed a crime of passion, it is most likely that they could be able to use the defence of provocation to their advantage. However, this is not always successful. A provocation relies on lack of premeditation (Allen, 1996) whereas a crime of passion does not necessarily always lack premeditation. For example, a crime of passion might be provoked by continuous torment, or financial hardship, which drives a spouse to murder. This may be premeditated, and so, although it has been committed due to provocation, this defence cannot be used.

This is often the problem that battered wives encounter, as a reaction to continuous acts over a period of time is more difficult to prove to be a spur of the moment attack. In fact, it is more likely to be premeditated, especially as, due to their stature and physical capabilities, a woman usually uses a weapon, which would probably be a premeditated affair (Stubbs, J., Graycar and Morgan, no date), or attacks the man in his sleep (Bradley - unreported judgement of the Victoria Supreme Court of 7.12.94 and 14.12.94). The defence that is usually used in a spur of the moment attack is one of self-defence. Even here, there are several problems, as self-defence is not usually premeditated. If therefore, the battered wife knew that she was going to get beaten and armed herself beforehand, this would be a more difficult case of self-defence to prove than the person who picks up the knife lying on the kitchen top, by her side, and kills her husband (a classic battered woman situation). The offender who commits a crime of passion could, in the same way, rely upon self-defence as a defence to their crime. However, it too would be beset by the same problems (Del Tosto, 1980). They would only be able to claim self-defence if it was in fact in response to an attack and that reaction is reasonable in the light of the attack. If this was the case, the offence would not be classed as a crime of passion, as the defendant would be acting in defence of their life.

A crime of passion might also be categorised under the defence of diminished responsibility. As has already been explained, the offender's responsibility has to be diminished at the time of the offence to claim this defence. The provocation definition suggests that someone can get roused by their passions so much that they are unable to be held responsible for their actions (Allen, 1996). This suggests diminished responsibility. However, using a defence of diminished responsibility would suggest that the defendant is mentally ill, which is not necessarily the case. It could be that the defendant overreacts all the time as a response to anything - if this is the case, a medical expert might be able to prove that the defendant is mentally ill. Failing this however, it might be difficult to show that the defendant was temporarily not responsible for their actions at the time of the murder, due to an enormous sense of jealousy, for example. However, such a situation has been found to be a case of diminished responsibility - see Miller, 1972, Asher, 1981, and Coles, 1980.

I would suggest therefore that at present, there is no legislation or common law which include the crime of passion within the criminal justice system of England and Wales. The defences which already exist can be used, but they are not sufficient to successfully cover the situation. The defendant would be most likely to use the defence of provocation, unless the circumstances of the offence dictate otherwise. Diminished responsibility could be used, but it would suggest mental illness, and this would have to be proven in court. Self-defence may also be used, but again, this is dependent on whether the facts of the case permit it. Provocation would be the most successful but this is still insufficient. There is a gap in the law regarding this offence, which the recognition of a separate defence of crime of passion would remedy.


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