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You are here: BAILII >> Databases >> The Law Commission >> Partial Defences to Murder (Consultation Paper) [2003] EWLC 173(10) (15 October 2003)
URL: http://www.bailii.org/ew/other/EWLC/2003/173(10).html
Cite as: [2003] EWLC 173(10)

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PART X

ABUSED WOMEN WHO KILL

Introduction

In this Part we address whether the law adequately accommodates an abused woman who kills her abusive partner. We consider whether she can rely on a complete or partial defence to murder in situations where the killing does not follow immediately after the provocative conduct of the deceased, or in situations where she may not have lost self-control at the time of the killing.

10.2

This Part is structured as follows: (i) we discuss the relevance of 'battered woman syndrome' to abused women who kill; (ii) we summarise the defences available in the jurisdictions of Australia, Canada, Ireland, New Zealand, Scotland and South Africa; (iii) we set out the case law in relation to abused women who kill; (iv) we analyse the shortcomings of the defences of provocation, diminished responsibility and self-defence as a legal response to the cases of abused women who kill; (v) we draw conclusions on the adequacy of English law in relation to abused women who kill; and (vi) we consider possible reform options.

'Battered Woman Syndrome'

Walker's theory

10.3

The term 'battered woman syndrome' is based on the clinical observations of Lenore Walker.

^[1]

'Battered woman syndrome' is not a legal defence to a charge of murder. However, the concept has been useful in explaining the perceptions of an abused woman and the reasonableness of the force she has used against her abusive partner. The concept may also help to explain why her reactions lack immediacy within the traditional model of self-defence.

^[2]

Duffy.^[3]

The "cycle theory of violence" and "learned helplessness" are the two main components of Walker's theory.

^[4]

The cycle theory of violence

The "cycle theory of violence" describes the typical course of violent behaviour in a relationship in a repeating three-phase pattern. Due to the recurring nature of the cycle the victim is able to identify behaviour of the abuser which signals the beginning of the cycle. As a result the victim becomes hypersensitive to such behaviour and further anticipated violent attacks. The three phases are:

(1) THE TENSION BUILDING STAGE

During this stage, the tension gradually escalates and minor battering incidents are likely to occur. The abuse during this phase is likely to be of a verbal or minor physical nature. The woman responds by trying to appease her abuser in the hope of preventing the abuse from escalating. Although she may succeed temporarily, the tension usually escalates until she can no longer control her abuser. At this point the second phase begins.

(2) THE ACUTE BATTERING INCIDENT

The second stage is characterised by a "barrage of verbal and physical aggression". Although this stage does not last as long as the first stage, the tension and abuse continue to escalate to such an extent until there is an 'uncontrollable discharge of tensions'.

(3) KINDNESS AND CONTRITE LOVING BEHAVIOUR

During this stage the abuser behaves in a "charming and loving manner". The abuser begs for forgiveness, tries to assist the victim, showers her with gifts and promises that it will not happen again. This phase raises the victim's hopes that the cycle will not repeat itself and that the abuser will change.

Learned helplessness

10.7

The second element of Walker's theory helps to answer a question often asked in legal proceedings: why did the abused woman not leave or, if she did leave, why did she resume the relationship?

^[5]

Walker suggests that a woman who is subject to abuse for a period of time often develops a sense of helplessness regarding her situation. She feels helpless to change her situation and comes to believe that no matter what she does, or how she responds, it will not change the situation she is in. A destructive psychological spiral is established. The beatings lead to lowered self-esteem and learned helplessness, which in turn make her unable to escape. An abused woman perceives that she has no option but to submit to abuse since she has no other alternatives or means of escape open to her.

Criticisms of Walker's theory of 'battered woman syndrome'

10.9

Although the concept of 'battered woman syndrome' has been widely used in legal proceedings on behalf of abused women who kill their abusive partners, especially in the United States, its credibility has been challenged by many.

^[6]

On the other hand, Leader-Elliot points out that, by focussing on the psychiatric health of the abused woman, the circumstances surrounding her actions are ignored. He refers to the term 'battered woman syndrome' as an "unhappy hybrid" and argues that the assumption that the choice to stay in the relationship is a pathological one, or a consequence of a mental disorder, masks the brute reality of domestic violence. He is critical of Walker's use of the dog experiments to illustrate the effect of oppressive cruelty in the home. As the women in Walker's survey did not suffer from a psychological disorder he questions whether there is such a syndrome. Leader-Elliot also argues that Walker's emphasis on individual pathology reinforces existing prejudices that women face and encourages the common tendency to blame the victims of domestic violence for masochism.

^[7]

"Learned helplessness" has also been labelled "traumatic bonding". This theory draws on similarities in the relationships, respectively, between hostages and captors, abusive cult leaders and their followers, abused children and their parents, and abused women and their partners. It is based on the work of psychologists Dutton and Painter. There are two features common to these relationships: the first is the extreme dependency created by the power imbalance in the relationship; the second is the intermittent nature of the abuse.

^[8]

Walker's theory has been criticised for reinforcing negative stereotypes of women as helpless and irrational. 'Battered woman syndrome' fails to address the social, political and economic dimensions of abusive relationships. It tends to underestimate the importance of a number of factors or obstacles, which make it difficult for an abused woman to leave the abusive relationship.

10.13

These factors include a lack of economic and/or other resources, adequate social welfare and low-cost housing, a fear of retaliation, and a fear of losing children in custody disputes.

^[9]

^[10]

^[11]

Nicholson and Sanghvi have highlighted the wider implications of perpetuating the idea that the experiences of abused women should be categorised as "learned helplessness":

Battered women do not ask for, nor consent to, violence. On the contrary, they frequently seek help in escaping it. And the response from state institutions in particular tends to be woefully inadequate. Furthermore, it is socialisation and the lack of socio-economic alternatives for women, rather than "learned helplessness" which makes leaving violent men so difficult. All of this is pushed under the carpet by the syndrome, which focuses on the personality and problems of individual defendants, thereby suggesting that the solution lies with therapy rather than social change.^[12]

Nicolson and Sanghvi also argue that, whether due to Walker's theory itself or the way in which it tends to be used, it fails to address the relevant legal issues raised by the provocation defence. They assert that whereas 'battered woman syndrome' is useful in explaining the reasonableness of the general behaviour of abused women, it is not well suited to establishing the reasonableness of an abused woman killing in provocation, nor that the killing took place during a sudden loss of self-control. The syndrome is associated with despair, anxiety and fear, yet provocation requires evidence of loss of self-control.

^[13]

Paragraph 10.11 above referred to the parallels between hostage situations and the relationships of domination, unpredictability, and violence in which abused women find themselves trapped. Many abused women learn that if they attempt to leave, they will be followed and forced to return, to face even greater hostility and more serious violence.

^[14]

Even where an abused woman has been able to leave the relationship, evidence shows that women are at the greatest risk of being killed at the point of leaving or after leaving an abusive partner. Women's Aid recently commissioned a study of women's experiences of domestic violence. This research found that 76% of the 161 separated women in the sample suffered post-separation violence.

^[15]

Finally, there is no reference in Walker's research to whether 'battered woman syndrome' also applies to same sex relationships.

^[16]

^[17]

^[18]

the position in Australia, Canada, Ireland, New Zealand, Scotland and South Africa

This section draws exclusively on the contents of appendices A to F which discuss in detail the defences of provocation, diminished responsibility and excessive force in self-defence in Australia, Canada, Ireland, New Zealand, Scotland and South Africa. It offers a summary of the applicability, in those jurisdictions, of such defences to abused women who kill.

Australia

Provocation

10.20

The defence has been criticised for operating primarily to excuse male anger and violence toward women. It has also been accused of bias against female defendants because many elements of the defence have developed in response to patterns of male aggression. Lately, the Australian courts and legislatures have sought to redress this by removing the requirement of suddenness as well as the need for a triggering incident and by recognising cumulative provocation. Expert evidence of 'battered woman syndrome' has been admitted in order to inform juries of the heightened perception of the sense of danger and of the helplessness of these women. These changes have enabled the defence to operate in favour of an abused woman whose anger has intensified rather than diminished with time. They also contextualise the provocative incident by reference to the history of long standing physical, mental and emotional abuse suffered by the female defendant at the hands of her partner. These changes persuaded the Victorian Law Reform Commission to conclude that female patterns of behaviour are now sufficiently accommodated by the defence.

^[19]

In its 1997 Report on Provocation, the New South Wales Law Reform Commission proposed a reformulation of the defence but, like the current law, it still hinged on the concept of actual loss of self-control. It acknowledged that the reformulated defence would continue to be inapplicable to women who killed in cold blood out of self-preservation or to save their children from further abuse.

^[20]

The Model Criminal Code Officers Committee has argued that the structure of the defence is inherently gender biased because it operates partially to excuse homicidal acts on the basis of loss of self-control. It has recommended the abolition of the defence and has used the theory of 'battered woman syndrome' to support its view:

The defendant, who in such cases often kills her partner after years of abuse, may adopt a method of killing that is undoubtedly premeditated, but is actuated by no less psychological stress and trauma than persons who kill in response to an immediate provocation. Any argument that it is murder for a battered woman driven to desperation to kill her partner but only manslaughter for a man to do the same after discovering her committing adultery is offensive to common sense.^[21]

In apparent support of the view of the Model Criminal Code Officers Committee, the Tasmanian legislature abolished the defence of provocation to murder in May 2003. The legislature believed that provocation could be adequately considered as a factor in sentencing since the mandatory sentence of life imprisonment for murder had been removed in that jurisdiction. One of the reasons given by the Minister for Justice for abolishing the defence was that the defence was not designed for women and that it is not an appropriate defence for those who fall into the 'battered women syndrome'.

Diminished responsibility

10.24

In Australia, diminished responsibility exists as a partial defence to murder. The defence requires the defendant to prove that, at the time of the killing, he or she was operating under an abnormality of mind stemming from a specified cause which so substantially impaired her criminal responsibility as to warrant reducing the offence of murder to manslaughter. The defence was introduced by legislation into the Australian Capital Territory, New South Wales, Queensland and the Northern Territory because it was thought that an accused whose criminal responsibility is diminished on account of some mental dysfunction, should avoid the mandatory sentence of life imprisonment imposed at the time for murder. No other Australian jurisdiction recognises the defence.

10.25

The Victorian Law Reform Commission has questioned whether it was appropriate to claim that abused women who kill do so as a result of an "abnormality of mind", or whether it would be better to create a new defence to cover such circumstances.

^[22]

^[23]

Excessive force in self-defence

South Australia and New South Wales are the only Australian jurisdictions that currently recognise the partial defence to murder of excessive defence. We considered the position in Australia in some detail in Part IX.

Canada

Provocation

10.27

The provocation defence in Canada has four elements: (i) a wrongful act or insult; (ii) an ordinary person would be deprived of the power of self-control by that act or insult; (iii) the defendant was actually provoked by the act or insult: and (iv) the wrongful act or insult and the defendant's response to it were both sudden. There is no proportionality requirement associated with the defence. The defence has been extensively criticised, in particular by feminist legal scholars and advocacy organisations, who argue that the type of anger privileged by the provocation defence is tailored to male violence, rather than female violence. It is therefore a concession to male infirmity, not human frailty.

Diminished responsibility

10.28

There is no defence of diminished responsibility in Canada. It is felt that there is no need for the defence given the expansive scope of the mental disorder defence in Canada, which is concerned with whether the defendant had the necessary mens rea to be convicted of murder.

Excessive force in self-defence

10.29

There is no statutory provision in Canada for a defence of the use of excessive force in self-defence. A qualified common law defence was recognised at one point. However, it was rejected in the case of Faid.

^[24]

Ireland

Provocation

The Law Reform Commission of Ireland has recently examined the law of provocation.

^[25]

^[26]

Diminished responsibility

There is no defence of diminished responsibility in Ireland. A Bill was introduced in 2002 which provides for the defence, but it has not yet been enacted.

Excessive force in self-defence

10.32

In the case of Dwyer

^[27]

New Zealand

Provocation

'Battered woman syndrome' and its effects were acknowledged by the New Zealand Court of Appeal in the case of Oakes.

^[28]

^[29]

In May 2001, the New Zealand Law Commission produced a Report on how the law applies to battered defendants who commit criminal offences as a reaction to domestic violence inflicted on them by their partner.

^[30]

Diminished responsibility

There is no defence of diminished responsibility in New Zealand. The Law Commission in its Report recommended against its adoption. It was influenced by the fact that it is a concept which is difficult to define with clarity, and it considered that the factors giving rise to diminished responsibility were better considered at the sentencing stage. Additionally, the Commission was of the opinion that diminished responsibility is not of particular relevance for the majority of battered defendants. It referred to the opinion of forensic psychiatrists that, while domestic violence may lead to a range of psychological responses in the victim, it does not generally cause the victim to develop abnormality of mind to the degree required by the defence of diminished responsibility.

Excessive force in self-defence

10.36

A defence of excessive force in self-defence has never been part of New Zealand law. The New Zealand Law Commission has recently considered the feasibility of a partial defence of excessive force in self-defence, with particular reference to battered women. In its subsequent report, the Commission acknowledged the strength of the arguments in support of excessive self-defence as a partial defence and commented that, of all the partial defences considered, this was the one they would most favour introducing into New Zealand law. The Commission observed that a plea of excessive defence more closely reflected the experiences of battered women who had killed their violent partners. This was because the "link between self-defence and excessive self-defence means it is more appropriate to the circumstances that are typical of the cases involving battered defendants than provocation or diminished responsibility".

^[31]

^[32]

Scotland

Provocation

The defence of provocation in Scots law comprises three elements: (i) provocative conduct - this must consist of violence or infidelity; (ii) a loss of self-control which must have followed on immediately from the provocation; and (iii) an objective ingredient - the accused's reaction to the provocation must be such as might have been expected from an ordinary person. Most significantly for abused women who kill, the defence appears to exclude the possibility of cumulative provocation. There is evidence to suggest that those cases where women have killed their partners against a backdrop of sustained domestic violence ie cumulative provocation, are dealt with by way of prosecutorial discretion. This means that, in such cases, the Crown Office is willing to accept a plea of culpable homicide in circumstances that would otherwise amount to murder. In this way, although by no means formally recognised in law, killing in response to sustained domestic violence sometimes operates as an unofficial partial defence to murder in Scotland.

^[33]

Diminished responsibility

The defence of diminished responsibility in Scotland reduces murder to culpable homicide if at the relevant time the accused was suffering from an abnormality of mind that substantially impaired the ability of the defendant, as compared with a normal person, to determine or control his acts.

Excessive force in self-defence

10.39

Excessive force in self-defence does not operate as a partial defence to murder in Scots law.

South Africa

Provocation

10.40

The South African model of provocation is radically different from the English law model. Effectively, the defence operates as an excusing condition where the fault of the defendant is reduced because of his or her reduced criminal capacity.

Diminished responsibility

10.41

Diminished responsibility usually means a finding of mental deficiency that does not amount to legal insanity. The concept of diminished responsibility appears not to be invoked much in practice, probably due to the fact that the concept of incapacity has been given a broad meaning and applies to both pathological incapacity (insanity) and non-pathological incapacity (conditions short of insanity affecting the accused's capacity, for instance emotional stress).

Excessive force in self-defence

10.42

The current approach to exceeding the bounds of private defence in South Africa is summarised in the case of Ngomane.

^[34]

The case law in relation to abused women who kill

Duffy

The starting point for discussion in English law is the case of Duffy. The defendant over a period of time had been subject to brutal treatment from her husband. On the night of the incident, there had been quarrels and physical fights. The defendant wished to take her daughter away but her husband prevented her from doing so. She then left for a short while and returned with a hatchet and a hammer. While her husband was in bed, she struck him with both weapons. Her defence was that she acted under provocation. The jury found her guilty of murder. In dismissing her appeal, Lord Goddard CJ approved the "classic direction" given to the jury by Devlin J:

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 the master of his mind.^[35]

The 1990s saw a change in the way that the courts treated women who had killed their violent or abusive partners. In the cases of Thornton (No. 2)

^[36]

Ahluwalia

^[37]

Duffy

^[38]

The application of the objective test has also been the subject of scrutiny as it applies in cases where abused women have killed. Under section 3 of the 1957 Act the jury can "take into account everything both done and said" which has an impact on the loss of control claimed by the defendant.

^[39]

Thornton (No. 2)

Ahluwalia

Ahluwalia

In 1989 the defendant, after suffering many years of violence and abuse from her husband, threw petrol into his bedroom and set it alight. Her husband sustained serious injuries and burns and after six days he died.

10.47

There was a long history of violence and abuse suffered by the defendant at the hands of her husband. He had, during the ten years of their arranged marriage, subjected her to repeated and severe physical, sexual and emotional violence. He had assaulted her whilst she was pregnant, threatened to kill her and once tried to run her over. He started an affair two months before his death and had taunted the appellant with it. Despite this, the defendant begged her husband to stay with her. On the evening prior to his death the defendant tried to talk to her husband about their relationship but he refused and indicated that it was over. He demanded £200 from her for a bill and threatened to beat her if she did not produce it by the morning. He then began to iron and threatened that if she did not leave him alone he would burn her face with the iron. The defendant went to bed but could not sleep. She got up, went downstairs and collected a bucket of petrol (which she had bought a few days earlier), a lit candle, an oven glove for self-protection and a stick. She went to her husband's bedroom, threw in some petrol, lit the stick from the candle and tossed it into the room.

10.48

At her trial for murder, the defendant neither gave evidence nor adduced any medical evidence on her behalf. Her case was that she had only intended to inflict pain on the deceased, not seriously to harm him. Provocation was a second line of defence with reliance being placed upon the whole violent history of the marriage, as well as the events leading up to the night in question. On provocation, the judge directed the jury in accordance with the definition in Duffy. The jury returned a verdict of murder. In the subsequent appeal, it was argued that following the enactment of section 3 of the Homicide Act 1957 the direction given in Duffy was now wrong. Alternatively, it was argued that the defence of diminished responsibility, not put forward at the trial, was open to the appellant on the facts of the case.

10.49

The defendant's ground of appeal on the judge's direction to the jury on provocation was unsuccessful. Lord Taylor CJ held that the trial judge's reference to "sudden and temporary loss of self-control" was correct in law; and that there was no suggestion to the jury that they should or might reject her defence of provocation because her action did not immediately follow the deceased's provocative act or words.

^[40]

On the ground of diminished responsibility, the Court of Appeal referred to a medical report, which was available before the trial, that expressed the opinion that the defendant was suffering from endogenous depression at the time of the killing. The court noted that this is termed by some experts as a "major depressive disorder".

^[41]

Humphreys^[42]

In 1985 the defendant, then aged 17, was living with the deceased who was 33 years old. Their relationship was tempestuous and, although he lived off her earnings as a prostitute, he was often jealous and beat her on a number of occasions. On the night in question, the defendant cut her wrists out of fear that the deceased, who was drunk, would beat her and force her to have sexual intercourse with him and possibly others. On his return, the deceased taunted her that she had not made a very good job of slashing her wrists, whereupon the appellant stabbed and killed him with a kitchen knife.

10.52

A psychiatrist gave evidence to the effect that the accused suffered from an abnormal personality with explosive and attention-seeking traits and immaturity. The judge directed the jury that in considering how a reasonable person might have reacted to the provocation that she had received they should ignore any particular excitability that she may have had. She was convicted of murder. Although initially it refused leave to appeal, in 1995 the court granted leave on the basis of new grounds of appeal relating to the judge's direction to the jury.

10.53

The Court of Appeal accepted the submission that the judge ought to have left to the jury's deliberation her attention-seeking trait and immaturity (but not in itself her excitability trait, since that connoted only that she lacked normal self-control) as eligible for attribution to the reasonable woman.

10.54

It also held that the summing up was defective in that a mere recital of the history of the relationship between the defendant and the deceased without any analysis or guidance was insufficient. The appeal therefore succeeded on two grounds, and a verdict of manslaughter was substituted for that of murder.

Thornton (No. 2)^[43]

The defendant and the deceased married in 1988. The deceased had been violent towards the defendant prior to that marriage when they both lived together. The violence had briefly ceased at a time when the deceased went through rehabilitation for his drink problem and it was in that period when the couple had married. However, the deceased soon returned to drinking heavily and he again became violent towards the appellant. In 1989, between June 10 and 13, there were violent scenes and the police were called in on a number of occasions. The defendant's evidence at the trial was that on the evening of June 13 her husband came home drunk and lay on the couch. He told the defendant to get out. She left, but later returned and found her husband still inert on the couch. She attempted to persuade him to come to bed, but he threatened to kill her and called her a whore. She went to the kitchen and picked up a large kitchen knife with the intention of protecting herself if he became violent. He threatened to kill her again. She stabbed him once fatally.

10.56

In 1990 the defendant was convicted of the murder of her husband. In 1999 she was granted leave to appeal on the basis of further medical evidence and its potential impact on the defence of provocation. The defendant at her trial had not relied on this defence, although it was left to the jury by the judge.

10.57

The appeal was based on two characteristics which the defendant was said to have possessed at the relevant time. The first was a personality disorder and the second was the effect of the deceased's continued abuse over a period of time upon her mental make-up ('battered woman syndrome'). It was argued that these characteristics impacted on her reaction to the stress of the events at the time of the killing.

10.58

The Court of Appeal rejected an argument that the words "sudden and temporary" were no longer appropriate. The court held that, even if a defendant were suffering from 'battered woman syndrome', she could not succeed in relying on provocation unless the jury considered she suffered or may have suffered a sudden and temporary loss of self-control at the time of the killing.

^[44]

The court recognised that 'battered woman syndrome' might be relevant as it could form an important background to whatever triggered the actus reus. A jury might more readily find there was a sudden loss of control triggered by even a minor incident if the defendant had endured abuse over a period, on the "last straw" basis. Additionally, depending on the medical evidence, the syndrome may have affected the defendant's personality so as to constitute a significant characteristic relevant to the second question the jury had to consider in regard to provocation.

^[45]

The court held that the fresh evidence cast doubt on the jury's guilty verdict and quashed the conviction.

^[46]

Hobson^[47]

In 1992, the defendant stabbed her abusive and alcoholic partner to death during an argument. At her trial for murder she gave evidence to the effect that she had armed herself with a knife in order to defend herself and had no intention of killing the deceased. The police gave evidence that the defendant had on thirty previous occasions reported the deceased's violence towards her and on four occasions made formal complaints. In summing up the judge left the defence of provocation, as well as self-defence, for consideration by the jury. The defendant was convicted of murder. In an appeal against conviction, she argued, on the basis of medical reports not available at the trial, that at the time of the killing she was suffering from 'battered woman syndrome', which was capable of giving rise to the defence of diminished responsibility.

10.62

Allowing the appeal and ordering a retrial, the Court of Appeal held that it was a matter of significance that 'battered woman syndrome' was not part of the Classification of Mental Diseases until 1994;

^[48]

^[49]

Smith (Josephine)^[50]

In 1992, the defendant shot and killed her husband while he was asleep. Her case was that she was suffering from a depressive illness, giving rise to a defence of diminished responsibility. The defendant and others gave evidence that she had been subjected to ill treatment on a regular basis over a long period of time. This ill treatment included infliction of bruises, humiliating sexual demands and threats to their children. The defendant's medical records showed that she had a long-standing history of anxiety and depression. In 1993 she was convicted of murder. On appeal in 2002, it was argued on her behalf that developments in the law of provocation and further evidence showed that the conviction was unsafe.

10.64

There were four grounds of appeal. Two related to the summing up; first, that the judge was wrong in restricting the jury's attention to the events immediately surrounding the killing, rather than inviting it to consider the history of potentially provocative conduct and second, that the judge failed to give the jury an analysis of what conduct was capable of amounting to provocation and how the jury should approach the issue. The third and fourth grounds of appeal related to fresh medical evidence.

10.65

The Court of Appeal held that the conviction of murder was unsafe. Although the judge in his summing up directed the jury to consider all the circumstances, including the appellant's medical history, panic attacks and depression, he had done so only in the context of diminished responsibility. In relation to provocation, the judge had focused only on the arguments that occurred on the day of the killing. This, the Court of Appeal held, may have misled the jury to conclude that the defendant's medical history, although relevant to diminished responsibility, was not relevant to provocation.

10.66

In accordance with the judgment of the House of Lords in Smith (Morgan),

^[51]

The shortcomings of the defences of provocation, diminished responsibility and self-defence as a legal response to the cases of abused women who kill

Provocation

Although section 3 of the Homicide Act 1957 abolished the common law rules as to what can or cannot amount to provocation,

^[52]

^[53]

As discussed above, in 1993 the Court of Appeal in Ahluwalia made the law of provocation more amenable to abused women who kill by holding, although obiter, that a "cooling time" between the provocative act of the deceased and the killing was no longer an absolute legal bar to the defence.

10.69

Despite this progress, the requirement of a "sudden and temporary loss of self-control" will continue to pose problems for abused women who kill in an outwardly calm manner.

^[54]

^[55]

Ahluwalia

^[56]

Lord Taylor noted in Ahluwalia that the interval between the provocative conduct and the defendant's reaction was important since it could afford an opportunity for the defendant to regain self-control. A lengthy time interval may indicate that the subsequent attack may have been planned or based on motives such as revenge or punishment. Lord Taylor did, however, recognise that this type of indication depends entirely on the facts of the individual case.

^[57]

The Court of Appeal in Thornton (No. 2) confirmed this approach and held that a defendant suffering from 'battered woman syndrome' cannot rely on provocation unless there was a "sudden and temporary loss of control" at the time of the killing.

^[58]

^[59]

There is no avoiding the fact that section 3 is explicit on the point that there must be a loss of self-control. Consequently, in cases of 'battered woman syndrome', juries are faced with an unenviable and difficult task. They may well empathise with the sufferings of the defendant at the hands of the deceased. At the same time, they may hear evidence of planning and deliberation by the defendant. Such contradiction encourages a "sympathy lottery" rather than equal treatment of defendants.

^[60]

Where there is no evidence to indicate that she acted as a result of a "sudden and temporary loss of self-control", the abused woman who kills may still be entitled to rely upon the partial defence of diminished responsibility.

Diminished Responsibility

10.74

Professors Simester and Sullivan have commented that, in relation to the law of diminished responsibility, the gap between articulated judicial decisions and day-to-day practice can be a wide one.

^[61]

The scarcity of cases before the appellate courts not only means that there is little opportunity for the legal issues involved to be addressed, but also that the accused is reliant upon prosecutorial discretion. The potential for inconsistency in approaches is obvious. Moreover, the law ought to be able to define with clarity where the boundaries to murder and manslaughter lie. It is wrong to abdicate this responsibility to a prosecutor's discretion.

10.76

Diminished responsibility may provide the legal basis for dealing with cases of cumulative provocation where the defendant's actions were preceded by planning and deliberation.

^[62]

In Ahluwalia, although the defence of provocation was rejected, the defendant's appeal was allowed on the grounds that diminished responsibility had not been raised at her trial despite medical evidence suggesting that she was suffering from an abnormality of mind (endogenous depression) when the offence was committed. In Thornton (No.2) the defendant relied on the defence of provocation but at the retrial the case was decided on diminished responsibility. In Hobson the defence successfully relied on diminished responsibility on appeal. The burden of proof in the defence of diminished responsibility, on a balance of probabilities, lies with the defendant. It requires medical evidence that the defendant was afflicted with some condition falling within the terms of section 2 of the 1957 Act.

^[63]

Some theorists are critical of reliance on diminished responsibility as it shifts the focus from the deceased's violence to the woman's state of mind. This, in effect, pathologises a woman's actions and implies that had her mental faculties not been impaired she would have continued to be a "happy punch bag".

^[64]

Self-defence

Self-defence is primarily a creation of common law and is summarised in Part IX. Currently the law involves two requirements: a belief in the necessity to use force at all, and whether the amount of force used was a reasonable response to the circumstances.

10.80

Force cannot be justified to prevent a crime or to defend against an attack unless it was a necessary and reasonable means of doing so. Therefore, if an abused woman is aware that a safe alternative to the use of force is available, ordinarily she should take it. Following the decision in Julien

^[65]

^[66]

Research suggests that many abused women who kill their abusive partners do so in order to escape the threat of death or serious injury, whether or not the abuser is actually physically attacking them at the time of the killing. McColgan argues that in both situations a confrontation exists and that the traditional model of self-defence needs to take into account the position that an abused woman finds herself in:

the objective question of whether the defendant's use of force was reasonable must be assessed in light of her circumstances, a recognition which is as valuable to the woman whose reaction is a product of months or years spent under a Damoclean sword of threatened violence, as it is to the man whose ability to rationally assess the measure of response required to a sudden attack is adversely affected by the unexpected nature of that attack.^[67]

Because the defence depends on use of force being necessary to protect the person using it from an imminent attack, it is not available to an abused woman who kills her abuser when, for example, he is asleep.

^[68]

On the issue of reasonableness, in Ahluwalia, in relation to the partial defence of provocation, Lord Taylor CJ stated that the reasonableness of the defendant's reactions fell to be considered in light of the "history of her … marriage, the misconduct and ill-treatment of the appellant by her husband."

^[69]

^[70]

In the recent case of Martin (Anthony), the Court of Appeal in an obiter dictum declined to close the door completely on the potential relevance, in exceptional circumstances, of a defendant's personal characteristics to the question whether force used was excessive.

^[71]

Conclusions on the Adequacy of English Law in Relation to Abused Women who Kill

We consider that the law does not always deal satisfactorily with abused women who kill, especially by comparison with the way in which it treats certain other types of killing. If a woman in an abusive relationship kills her partner in order to protect herself from further violence, she may have no defence to murder (under provocation, diminished responsibility or self-defence). She is therefore punished with life imprisonment in circumstances where such a sentence may be considered disproportionate to her culpability. But if her partner in a sudden rage kills her because she has been unfaithful, he may succeed in a defence of provocation and be convicted of the lesser offence of manslaughter, even though his culpability might well be considered to be greater.

10.86

In order to remove this unfairness, the law would have to be altered in one of two directions.

10.87

One approach would be to abolish the mandatory life sentence. A judge would then have discretion in sentencing a woman who has killed her abusive partner. However, unless the defence of provocation is also abolished, there would still be a real possibility of inequity between an abused woman who kills and that of a man who kills his partner in circumstances entitling him to the defence of provocation.

10.88

The other approach would be to extend the availability of a defence to murder to an abused woman who kills either by altering the boundaries of an existing defence or by creating a new defence.

10.89

Any reform of the law needs to be both principled and practicable, taking into account not only its application to cases of abused women who kill but also its wider potential effect.

Options for reform

10.90

The discussion which follows inevitably contains some overlap with, and repetition of, matters considered in earlier Parts dealing specifically with provocation, diminished responsibility and excessive use of force in self-defence.

Provocation

10.91

In Part IV we examined the problems of the law of provocation. In Part XII we consider the options of abolishing it or retaining it in a modified form. The defence does not truly reflect the circumstances of many abused women who kill. Even where, having suffered gross abuse from her partner and in fear of further violence, an abused woman kills that partner, she may be unable to rely on the defence of provocation because at the time of the killing she was not acting under the requisite loss of self-control.

10.92

In Part XII we consider whether the requirement of loss of self-control should be removed in any reformulated version of the defence, but there are powerful arguments against doing so. To extend provocation to planned killings would have wide and undesirable repercussions. In truth, provocation is a defence intended to apply to a defendant who acts with sudden violence in acute circumstances, whereas the abused woman who kills is generally responding to a chronic problem. Even if a clear and coherent defence of provocation can be reformulated, it is unlikely to be an appropriate defence for many abused women who kill.

Diminished responsibility

10.93

Some abused women who kill are suffering from abnormality of mind within section 2 of the 1957 Act, but many are not. It would not be right in principle to try to redefine an abnormality of mind defence to include people who are not suffering from a classified mental abnormality, not least because that would involve artificially pathologising the defendant.

A 'battered woman syndrome' defence

10.94

It is recognised that abused women may suffer from mental health difficulties, such as depression, anxiety and post traumatic stress disorder. However, from our research to date there appears to be no generally accepted medical position on 'battered woman syndrome'. It is not a diagnosis but an explanation of how some women are affected by being in an abusive relationship. We do not see that it is a concept that would satisfactorily form the basis of a specific defence. Furthermore, defences to murder ought to be based on principles of general application.

Pre-emptive use of force in self-defence or self-preservation

10.95

In Part IX we considered a possible partial defence of excessive use of force in self-defence. We addressed those situations in which some use of force in self-defence was lawful, but not the degree of force used. In law, force may only be used in defence of oneself or another in face of an actual attack or where an attack is honestly believed to be imminent. We now consider the case for and against a partial defence in circumstances where a person uses lethal force to prevent violence by another, but the feared violence is not sufficiently imminent to justify in law the use of force in self-defence. Some writers refer to this as self-preservation, but we prefer the term 'pre-emptive force in self-defence'.

^[72]

The requirement of a belief in imminent danger in order to justify use of force in self-defence contains some degree of flexibility. In the leading case of Palmer, Lord Morris of Borth-y-Gest said:

If the moment is one of crisis for someone in imminent danger he may have to avert the danger by some instant reaction. If the attack is all over and no sort of peril remains then the employment of force may be by way of revenge or punishment…^[73]

In the case of Kelly, it was held that soldiers in Northern Ireland were entitled to shoot the driver of a vehicle (whom they had genuinely but mistakenly believed to be a terrorist) to stop him from escaping and to prevent him from committing future terrorist offences even though there was no suggestion that any such crime was imminent.

^[74]

In the context of the abused woman who kills, it is strongly arguable that what ultimately matters is not how immediate was the threat, but whether the abused woman had a fair and reasonable opportunity to do other than she did in meeting the threat.

^[75]

This point can be illustrated by one of McColgan's examples, where someone is held hostage by terrorists who let him know, expressly or by implication, that he is to be seriously injured or killed within the next few days. It is unlikely that the courts would require him to wait until a weapon was actually raised to him before they allow him to use violence against his captors.

^[76]

complete

Kelly

We think that it would be wrong in principle for the law to permit the use of pre-emptive force in protection of oneself or another against a perceived threat if there are other means of protection available to the person concerned.

10.101

There is, nevertheless, a case to be considered for the introduction of a partial defence to murder in circumstances where the defendant kills another in the honest belief that it is the only way to prevent grave future violence to him or herself.

10.102

We would not envisage making it a requirement that the belief be reasonably held, because that would exclude an abused woman who acted in a moment of despair, when she herself might recognise afterwards that there were other ways in which she might have dealt with the situation.

10.103

We do not think that a woman who kills an abusive partner in such circumstances should face a mandatory life sentence. The introduction of such a partial defence would be one means of avoiding that outcome.

10.104

We have previously said that any changes to the defences to murder should accord with sound general principles. We do not think that the defence under consideration should be specifically limited to women in an abusive relationship. Consider, for example, the case of a member of a minority race who is the victim of repeated violence or threats of violence and who kills a perpetrator of that violence; or a school child who is the object of endless bullying and who, in despair, chooses to kill his tormentor rather than, as is sometimes the case, committing suicide.

10.105

There is also an argument that such a partial defence should extend to a person who kills another in the honest belief that it is the only effective way to prevent grave future violence to another person, at any rate if that other person is a close relative or (possibly) friend. A woman may be afraid to leave a violent partner more from fear of what he will do to her children than for herself. Or a son may kill his mother's violent partner (or help her to do so) in an honest belief that it is the only effective way to protect her from further grave violence. However, we would not wish to see such a defence available, for example, to vigilante groups.

10.106

There are serious arguments against any introduction of such a partial defence.

10.107

First, it is arguable that a better course would be to abolish the mandatory life sentence for murder than to create a new partial defence. This line of reasoning is linked with arguments about the future of the defence of provocation. If provocation and the mandatory sentence were both abolished, the introduction of a partial defence of the kind under consideration would be unnecessary and inappropriate.

10.108

Second, an important function of the criminal law is to recognise and assert certain societal standards. There is sound general policy behind the law's refusal to sanction the use of pre-emptive force in self-defence. To allow a partial defence to murder of pre-emptive force in self-defence could be seen as involving a relaxation of those standards at a time when violence in society is a grave concern.
The availability of such a defence may send out the wrong signals. This might be of special concern in areas affected by racial and religious tensions. We would value the views of police and community leaders in these areas.

10.109

Third, it would be most undesirable if members of rival criminal gangs could rely upon such a defence. Although it would be possible to exclude from the defence a person who had acted unlawfully or unreasonably in putting himself or herself in the position of being exposed to threatened violence, such an exclusion could give rise to difficult evidential and definitional questions. For example, it could involve introducing evidence of bad character against the defendant, which would ordinarily be inadmissible and could be highly prejudicial to a fair trial of the main issues. There could also be difficult questions in relation to whether the defendant had acted unreasonably in his or her relationship with the deceased. This could particularly be so in the case of the woman who has failed to extract herself from the abusive situation for valid psychological or other reasons.

10.110

Another possible way of preventing the suggested defence being relied on by warring criminals would be to make it a requirement that the defendant's fear of future violence was based on a history of previous serious violence or abuse. But this would also have its difficulties. If a history of previous serious violence or abuse were to be a condition of the defence, rather than merely an evidential consideration, it would have to be suitably defined. Issues would arise, not only about the level of previous violence or abuse required, but also about whether it needs to have involved both (or either) of the defendant and the deceased. It could be over-restrictive if it is conditional upon the previous violence or abuse having been directed towards the defendant. Consider again the case of an abused woman's son who kills, or helps his mother to kill, her abuser. It could also be over-restrictive if the previous violence had to be shown to have come from the deceased. Consider the following examples:

(1) D is a shopkeeper. He is a member of an ethnic minority. He and his family have been victims of repeated racist verbal abuse and physical violence by a local gang but D cannot prove which of them carried out the serious attacks and police investigations are met with a wall of silence. Eventually, after receiving further anonymous threats to set fire to his shop at night (which D honestly believes will be carried out), D kills the gang leader.

(2) D is a woman who has experienced serious violence in the course of a previous abusive relationship. She enters a new relationship. She soon experiences the same escalating pattern of abuse from her new partner. Although there has not yet been serious physical violence from him, one evening he arrives home drunk, accuses her of infidelity, tirades her with verbal abuse including threats to kill her and her children (which D honestly believes will be carried out) and then falls asleep. In despair (born of her experience during both relationships) she kills him.

10.111

In conclusion we would observe that the criminal law cannot be a panacea for the ills of society. Domestic violence is a grave social evil and women abused by their partners face problems of an extremely serious nature. These problems require solutions of a social/political nature including provision of safe refuges for women who are victims of domestic violence (and their children), financial support and child protection. We know that the Government and the family courts are deeply aware of and concerned about these problems. Abused women who deliberately kill their abusive partners are entitled to justice and compassion, but it does not necessarily follow that the only or the best way of achieving that result it to create a new defence.

10.112

In Part XII we present options for reform and invite consultees' views on these issues.

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Note 1    L E Walker, The Battered Woman Syndrome (2nd ed 1999); Terrifying Love: Why Battered Women Kill and How Society Responds (1989).    [Back]

Note 2    B F Bartal, “Battered Wife Syndrome Evidence: The Australian Experience” in J Vagg and T Newburn (eds) British Criminology Conference: Selected Proceedings Vol 1. Emerging Themes in Criminology (1998) http://britsoccrim.org/bccsp/vol01/VOL01_08.HTM at p 4 of 12 (accessed 04/06/03).    [Back]

Note 3    [1949] 1 All ER 932.    [Back]

Note 4    L E Walker, The Battered Woman Syndrome (2nd ed 1999) at pp 43 -73.    [Back]

Note 5    A McColgan, “In Defence of Battered Woman Who Kill” (1993) 13 Oxford Journal of Legal Studies 508; M A Buda & T L Butler “The Battered Wife Syndrome: A Backdoor Assault on Domestic Violence” (1984/85) 23 Journal of Family Law: University of Louisville 359.     [Back]

Note 6    See, for example, J Blackman, Intimate Violence: A Study of Injustice (1989); A Browne, When Battered Women Kill (1987); D Bricker, “Fatal Defense: An Analysis of Battered Woman’s Syndrome Expert Testimony for Gay Men and Lesbians Who Kill Abusive Partners” (1993) 58 Brooklyn Law Review 1379.    [Back]

Note 7    I Leader-Elliot, “Battered but not Beaten: Women who Kill in Self-Defence” (1993) 15 Sydney Law Review 403.    [Back]

Note 8    D Dutton and S L Painter, “Traumatic Bonding: The Development of Emotional Attachments in Battered Women and other Relationships of Intermittent Abuse” 6 Victimology 139 (1981) especially at pp 146–152.    [Back]

Note 9    A McColgan, “In Defence of Battered Woman Who Kill” (1993) 13 Oxford Journal of Legal Studies 508 at pp 516–517.    [Back]

Note 10    M R Mahoney, “Legal Images of Battered Women: Redefining the Issue of Separation” (1991) 90 Michigan Law Review 1.    [Back]

Note 11    B F Bartal, “Battered Wife Syndrome Evidence: The Australian Experience” in J Vagg and T Newburn (eds) British Criminology Conference: Selected Proceedings Vol 1. Emerging Themes in Criminology (1998) http://britsoccrim.org/bccsp/vol01/VOL01_08.HTM at p 4 of 12 (accessed 04/06/03).    [Back]

Note 12    D Nicholson and R Sanghvi, “Battered Women and Provocation: The Implications of R v Ahluwali” [1993] Crim LR 728 at pp 735–736.    [Back]

Note 13    Ibid, at p 734.    [Back]

Note 14    In discussions with the Law Commission, psychiatrists have commented that in many cases of abused women it is not just a matter of the abuse inflicted upon her by her partner, it is often a case of the man’s wish to exercise total control and dominance over the woman. He effectively walls her off by separating her from other sources of influence. If an abused woman feels she is absolutely controlled by the man, she will honestly believe that if he is awake she can never escape.    [Back]

Note 15    C Humphreys and R Thiara, Routes to Safety: Protection issues facing abused women and children and the role of outreach services, Women’s Aid Federation of England (2002) p 12. See also, S Lees “Marital rape and marital murder” in J Hamner and N Itzin (eds) Home Truths about Domestic Violence: Feminist Influences on Policy and Practice: A Reader (2000) at p 57.    [Back]

Note 16    C J Simone, “‘Kill(er) Man was a Battered Wife’: The Application of Battered Woman Syndrome to Homosexual Defendants” (1997) 19 Sydney Law Review 230.    [Back]

Note 17    The Queen v McEwen (unreported, Supreme Court of Western Australia, trial before Murray J on 18-25 April 1995 and sentencing before Walsh J on 18 March 1996), is the first case in Australia where ‘battered woman syndrome’ was raised by a homosexual man. Robert McEwen was charged with the murder of his lover and partner. At his trial he was depicted as a “battered wife” after suffering emotional and social abuse, threats and intimidation and economic deprivation for fourteen years. Mr McEwen pleaded guilty to manslaughter rather than murder on the basis of provocation, and had his sentence mitigated on the basis of ‘battered woman syndrome’.    [Back]

Note 18    D Bricker, “Fatal Defense: An Analysis of Battered Woman’s Syndrome Expert Testimony for Gay Men and Lesbians Who Kill Abusive Partners” (1993) 58 Brooklyn Law Review 1379.     [Back]

Note 19    See generally, Victorian Law Reform Commission, Defences to Homicide: Issues Paper, 31 March 2002.    [Back]

Note 20    New South Wales Law Reform Commission, Report 83, Partial Defences to Murder: Provocation and Infanticide (1997) paras 2.145 - 2.146.    [Back]

Note 21    Model Criminal Code Officers Committee of the Standing Committee of Attorneys-General, Discussion Paper, Draft Model Criminal Code: Chapter 5. Fatal Offences against the Person (1998) p 91.    [Back]

Note 22    Victorian Law Reform Commission, Issues Paper on Homicide (2002) para 7.32.    [Back]

Note 23    See Appendix A, S Yeo, para 3.35.    [Back]

Note 24    [1983] 1 SCR 265.    [Back]

Note 25    The Law Reform Commission of Ireland, Consultation Paper on Homicide: The Plea of Provocation, 29 October 2003.    [Back]

Note 26    In respect of abused women who kill, there is evidence that the Irish courts are willing to admit evidence of cumulative provocation. See People (DPP) v O’Donoghue, The Irish Times, 16-20 March 1992, People (DPP) v Bell, The Irish Times, 14 November 2000.    [Back]

Note 27    The People (AG) v Dwyer [1972] IR 416. Dwyer involves an extreme set of facts: the victims had gone in search of a fight, the defendant was attacked and had reasonable cause to fear for his life and the life of his friend, and the defendant was armed.    [Back]

Note 28    [1995] 2 NZLR 673 (CA).    [Back]

Note 29    New Zealand courts have held that “smouldering resentment”, where in one case provocation given two weeks earlier was “revived” by a subsequent event, may be enough to amount to subjective evidence of loss of self-control (Taaka [1982] 2 NZLR 198). On the other hand, where there has been a substantial time lapse between the last identified provocative act and the killing, the defence may be precluded as the accused must have remained “in a continuous state of hot blood” or “remained in a state of uncontrolled anger throughout that period” (Mita [1996] 1 NZLR 95). Similarly, any evidence that at any time between the alleged act of provocation and the killing the defendant regained his composure, will normally be fatal to the defence. (Erutoe [1990] 2 NZLR 28, 35).    [Back]

Note 30    New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants, Report 73, May 2001.    [Back]

Note 31    New Zealand Law Commission, Some Criminal Defences with Particular Reference to Battered Defendants, Report 73 (2001) para 67.    [Back]

Note 32    See Appendix A, S Yeo, para 4.28.    [Back]

Note 33    See Appendix E, J Chalmers, C Gane, F Leverick, p 181-183.    [Back]

Note 34    1979 (3) SA 859 (A).    [Back]

Note 35    [1949] 1 All ER 932, 932. (emphasis added) The common law rule set out by Devlin J has been modified by section 3 of the Homicide Act 1957. In effect, section 3 does not create or codify the common law defence. Nothing is said about the outcome of a successful plea of provocation or about the burden of proof. However, the two restrictions on the availability of the defence at common law are now expressly removed. First, provocation can now take the form of “anything said or done”, and second, it is now up to the jury to decide “whether the provocation was enough to make a reasonable man do as he did.”    [Back]

Note 36    [1996] 1 WLR 1174.    [Back]

Note 37    [1992] 4 All ER 889, 898.    [Back]

Note 38    Smith and Hogan, Criminal Law (10th ed 2002) p 368.    [Back]

Note 39    See Part IV for a full analysis.    [Back]

Note 40    [1992] 4 All ER 889, 896.    [Back]

Note 41    Ibid, at p 900.    [Back]

Note 42    [1995] 4 All ER 1008.    [Back]

Note 43    [1996] 1 WLR 1174.    [Back]

Note 44    Ibid, at p 1181.    [Back]

Note 45    Ibid, at pp 1181-1182.    [Back]

Note 46    Ibid, at p 1183.    [Back]

Note 47    [1998] 1 Cr App R 31.    [Back]

Note 48    The American Psychiatric Association expanded its definition of post traumatic stress disorder to include battered woman’s syndrome in 1994. See the Diagnostic and Statistical Manual of Mental Disorders (4th ed 1994).     [Back]

Note 49    [1998] 1 Cr App R 31, 35.    [Back]

Note 50    Unreported Court of Appeal, Criminal Division, 4 November 2002.    [Back]

Note 51    [2001] 1 AC 146. Discussed in Part IV paras 4.69 – 4.140.    [Back]

Note 52    Camplin [1978] AC 705.    [Back]

Note 53    See Part IV for a full analysis.    [Back]

Note 54    D Nicolson and R Sanghvi, “More Justice for Battered Women” (1995) 145 NLJ 1122.    [Back]

Note 55    See Baille [1995] Crim LR 739; Pearson [1992] Crim LR 193.    [Back]

Note 56    [1992] 4 All ER 889, 895.    [Back]

Note 57    Ibid, at pp 895-896.    [Back]

Note 58    [1996] 1 WLR 1174.    [Back]

Note 59    K O’Donovan, “Defences for Battered Women who Kill” (1991) 18 J Law and Soc 219; D Nicholson, “Telling Tales: Gender Discrimination Gender Construction and Battered Women who Kill” (1995) 3 Feminist Leg Stud 185; A McColgan, “In Defence of Battered Women who Kill” (1993) 130 J Law and Soc 508; C Wells, “Battered Women Syndrome and Defences to Homicide: Where Now?” (1994) 14 Legal Studies 266.    [Back]

Note 60    A P Simester and G R Sullivan, Criminal Law Theory and Doctrine (2nd ed 2003) p 347.    [Back]

Note 61    Ibid, at p 587.     [Back]

Note 62    Ahluwalia [1992] 4 All ER 889; Thornton [1996] 1 WLR 1174; Hobson [1998] 1 Cr App R 31.    [Back]

Note 63    Dix (1982) 74 Cr App R 306, 311(CA). The Court spoke of medical testimony being “a practical necessity if that defence is to begin to run at all”.    [Back]

Note 64    A McColgan, “In Defence of Battered Woman Who Kill” (1993), 13 Oxford Journal of Legal Studies 508.    [Back]

Note 65    [1969] 1 WLR 839 (CA).    [Back]

Note 66    “A man about to be attacked does not have to wait for his assailant to strike the first blow or fire the first shot; circumstances may justify a pre-emptive strike” Beckford v R [1988] AC 130, 144, per Lord Griffiths.    [Back]

Note 67    A McColgan, “In Defence of Battered Women Who Kill” (1993) 13 Oxford Journal of Legal Studies 508 at p 520.    [Back]

Note 68    See J Dressler, “Battered Women Who Kill Their Sleeping Tormentors: Reflections on Maintaining Respect for Human Life while Killing Moral Monsters” in S Shute and A P Simester (eds) Criminal Law Theory: Doctrines of the General Part (2002) at p 259. Dressler argues that ‘battered woman syndrome’ evidence should only play a limited role in self-defence cases. His thesis is that society should not justify non-confrontational killings, even of abusers, where the homicide is not necessary on the immediate occasion.     [Back]

Note 69    [1992] 4 All ER 889, 898.    [Back]

Note 70    A McColgan, “In Defence of Battered Woman Who Kill” (1993) 13 Oxford Journal of Legal Studies 508 at p 528.    [Back]

Note 71    [2003] QB 1.     [Back]

Note 72    Self-preservation conjures up wider situations, in particular those associated with a defence of necessity, which is not a defence to murder. See Dudley and Stephens (1884) 14 QBD 273.     [Back]

Note 73    [1971] AC 814, 831.    [Back]

Note 74    [1989] NI 341. The decision was upheld by the European Court of Human Rights. The Commission noted that there was a high probability that shots fired at the driver would kill him or inflict serious injury. See Kelly v UK (1993) 74 DR 139.    [Back]

Note 75    This proposition is derived from Jeremy Horder’s cogent argument. See, J Horder, “Killing the Passive Abuser: A Theoretical Defence” in S Shute and A P Simester (eds) Criminal Law Theory: Doctrines of the General Part (2002) at p 283.    [Back]

Note 76    A McColgan, “In Defence of Battered Women Who Kill” (1993) 13 Oxford Journal of Legal Studies 508, at p 518.    [Back]

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