The Law Commission

APPENDIX C

DEFENCES TO MURDER

By Barry Mitchell, Professor of Criminal Law and Criminal Justice, Coventry University and Dr Sally Cunningham, University of Leicester

C.1 This brief report looks at the defences pleaded in a modest sample of cases dealt with in the courts between 1995 and 1996. As such, it forms part of a larger study aimed at discovering whether there is any evidence of possible discrepancies between the law in textbooks and the courts' verdicts, and – if there is – suggesting possible explanations for them. We were granted access to case files held by the Crown Prosecution Service (CPS), and our research is based on a sample of 93 cases.^[1] The cases were identified from the homicide index maintained by the Home Office. In about a third of the cases we sought to clarify issues through discussions with those involved in the prosecution and defence, such as police officers, CPS caseworkers and lawyers, and defence lawyers.

Did not kill

C.2 We found that 21.3% of defendants in our study denied causing the victim's death and 80% of these were subsequently convicted of murder. Neither an admission of presence at the scene, nor of causal responsibility for killing the victim appeared to have any obvious significance to the verdict. Two-thirds of the defendants who denied being responsible for killing the victim were convicted of murder (14 out of 21). In each of these cases there was evidence that, although it did not conclusively refute the defendant's claims, clearly implicated him as having perpetrated the fatal assault. For example, in case 117 the defendant was convicted of murdering his teenage stepdaughter whose body was found in a field. One witness saw a car similar to that of the defendant in the field at the relevant time. A second witness saw the defendant with the car at the entrance to the field and later picked him out in an identity parade. Soil and wheat samples taken from the car matched those in the field and the girl's blood and vaginal fluids were found on the defendant's jacket. In case 121 two students were convicted of murdering a third student outside a college. There were several witnesses to the stabbing, some of whom identified the first defendant (who subsequently denied being there at the time) as being involved and as being in possession of a bloody knife.

C.3 In most cases an argument that the defendant was not the perpetrator in any assault against the victim is likely to either succeed, leading to acquittal, or fail, leading to conviction for murder. Sometimes, however, denial of being involved in the killing is only one of a number of alternative defences put forward. For example, in case 99 the defendant's original defence was that he was not responsible for the stabbing of the victim, but this defence was undermined by the defendant's step-son who said he saw the defendant kill the deceased (as well as repeat threats to kill him). However, the defendant was convicted of manslaughter rather than murder, probably on the basis of provocation.

No intent to kill or seriously injure

C.4 In our study, 39.4% of defendants sought to rely on lack of malice aforethought, either by itself, or in combination with another defence.^[2] Just over half (51.1%) of defendants in our sample were convicted of murder^[3] and most of these (43 out of 48) were by a jury. The great majority of those who pleaded lack of intent admitted responsibility for causing the victim's death. Rare exceptions included case 48 in which two young men mugged an elderly woman in the street in the early hours of the morning and she died as a consequence of fracturing her skull when she fell to the ground. Each defendant launched a cut-throat defence, admitting their presence but denying participation in the fatal assault. Case 60, on the other hand, in which the defendant killed a man who was having an affair with his (the defendant's) girlfriend, was rather unusual. At trial the defendant initially offered a plea of guilty to manslaughter, but when this was rejected he denied even killing the victim, as well as a lack of malice aforethought. In case 53 the co-accused unsuccessfully sought to rely on an alibi and the defendant in case 78, who had been drinking very heavily, remembered seeing the deceased where the offence occurred, but could not recall attacking him.

Voluntary intoxication

C.5 We found evidence that defendants had been drinking alcohol or had consumed other drugs in 30 cases – just under a third of the sample. Of these, 17 were convicted of murder (one of whom pleaded guilty), 12 of manslaughter, and one of causing death by dangerous driving. Only eight of the 16 defendants convicted of murder by the jury had sought to rely on a lack of intent to kill or seriously injure. Similarly, just six of the 12 defendants convicted of manslaughter pleaded lack of intent. Thus, a relatively small proportion of those who had been drinking or taking drugs in our study appear to have succeeded in reducing their liability on the basis of their intoxication.

Provocation

C.6 The partial defence to murder of provocation was the second most frequent defence in our study, featuring either by itself or along with an alternative defence in 22.3% of the cases.

C.7 In the majority of the 21 cases in which provocation was pleaded,^[4] by itself or in combination with another defence, there were no eye-witnesses who were able to give evidence about what they saw or heard which would have supported the plea (or not). Quite frequently, therefore, apart from possible available forensic evidence, the court had to rely largely on the defendant's account of what had happened at the crucial time. There was usually evidence, albeit uncorroborated, that the defendant became angry. Whilst sometimes there was also evidence of

a loss of self-control, it was impossible to know whether the court felt the defendant had lost his self-control at the critical moment, or whether more reliance was being placed on the reasonableness of the defendant's reaction.

C.8 In at least nine cases where provocation was pleaded, it was unclear whether the defendant had lost his self-control at any stage. However, it appeared there was usually very little time lapse between the provocation and the defendant's reaction to it, so that if he did lose his self-control the chances of regaining it were relatively slim. In case 94, for example, a woman killed her common law husband. There was a history of arguments between them. In the course of a row, he called her a "black bitch" and she hit him. When he tried to restrain her she hit him again and then went to the kitchen to get a knife with which she fatally stabbed him.

C.9 There were very few occasions where it seemed the court had to decide whether any of the defendant's characteristics should be taken into consideration when considering the reasonableness of his reaction to the provocation. However, there were two cases of particular interest in the light of the decisions in Morgan Smith^[5] and Attorney-General for Jersey v Holley,^[6] both of which concerned cultural issues. In case 57 the defendant was convicted of murdering his estranged wife, both of whom were Punjabi. She had been having an affair with another man, and the defence adduced evidence from an anthropologist that the deceased's conduct would have been severely provocative according to Punjabi notions of honour. Unfortunately, we were unable to discern what, if any, significance was attached to this in the course of the trial, although the nature of the conviction clearly implies that it did not materially influence the jury. Similarly, case 179 also involved the killing of an estranged wife who was having an affair, but the defendant had what were described as "learning difficulties" and depression. According to one psychiatrist, the former condition effectively meant that the defendant had been provoked "beyond his capacity to cope". A second psychiatrist thought that the defendant's cultural identity ought to be relevant to the provocation – both parties were Asian. The jury convicted him of manslaughter, but again it was impossible for us to appreciate how much weight had been attached to the defendant's characteristics.^[7]

C.10 The Law Commission recently recommended a radical change in the definition of provocation. They stated that it should be manslaughter where "the defendant acted in response to:

(a) gross provocation (meaning words or conduct or a combination of words and conduct which caused the defendant to have a justifiable sense of being seriously wronged); or

(b) fear of serious violence towards the defendant or another; or

(c) a combination of (a) and (b); and

a person of the defendant's age and of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or similar way."^[8]

C.11 One obvious feature of the proposal is that the current loss of self-control requirement would disappear and there would be no alternative requirement as to the manner in which the defendant must react to the provocation.

C.12 In case 57, discussed earlier, a man was convicted of the murder of his estranged wife. The deceased had been having an affair with a colleague and had filed for divorce. In the light of the anthropological evidence that her actions would offend against their notions of honour, it is arguable that the deceased's conduct constituted gross provocation, which caused the defendant to have a justifiable sense of being seriously wronged. It is not entirely clear whether, under the Law Commission's proposal, the cultural features of this case would or would not be taken into account, although the reference to "the circumstances of the defendant" suggest they might well be.

C.13 Case 52 is not wholly dissimilar. The defendant was convicted of murdering his wife and four children. His wife had been having an affair with another man. According to his culture and religious beliefs it was a significant disgrace for a woman to be unfaithful to her husband. There was evidence that, by virtue of their beliefs, such a woman does not deserve to live and that the husband is obliged to kill her. It was also suggested that the defendant killed only those of his children who had not been "tainted" by their mother's actions.

C.14 These cases illustrate the potential significance of the court's decision to take on board cultural and religious issues, since both of them might otherwise simply be viewed as revenge killings. The Law Commission's proposed concept of "being seriously wronged" is likely to be heavily influenced by cultural and religious beliefs.

Self-defence

C.15 Self-defence is quite frequently pleaded in homicide cases; either by itself or in combination with another defence. It was raised in just over a fifth of the cases in our study.

C.16 Where self-defence was pleaded, it was more likely, than in provocation cases, that there would be eyewitnesses to the fatal assault, although many of these were friends or relatives of either or both of the parties. Quite frequently, but not necessarily only in those cases resulting in murder convictions, the evidence of an attack against the defendant seemed fairly weak. In these cases the main issue was whether more than reasonable force had been used in self-protection. In case 171 the two defendants arrived at a club and the first defendant told a friend that he had a knife, adding, "I'm ready to stab someone". When he tried to physically prevent a girl from leaving, the victim restrained him. They argued and began fighting, and then separated. The second defendant subsequently urged

the first defendant "to do 'im", "stab 'im", "juck 'im", and the first defendant lunged at the victim, stabbing him fatally in the stomach. It seemed there was no serious threat to the first defendant at the point the attack took place, and in any event the victim had done no more than punch and kick the first defendant. However, the first defendant pleaded self-defence, and was convicted by the jury of manslaughter. Although he had been drinking and smoking cannabis, the first defendant appeared to be well aware of what he was doing, and it is difficult to see how this verdict accords with the "all-or-nothing" nature of the current law on self-defence.

C.17 The apparent strength of the evidence in support of a defence was not always clearly consistent with the verdict. In case 79 there was some, albeit not particularly strong evidence on which the defendant could rely. As a small group of young men walked by, the defendant threw a bottle, hitting the victim. The defendant subsequently claimed that the victim had given him "a dirty look" and had made a racist remark. The victim returned shortly afterwards with several friends and they encircled the defendant, who became angry and frightened. The two of them argued and fought, and the victim fell to the ground fracturing his skull and subsequently died. The defendant pleaded both provocation and self-defence, claiming that he was afraid that the victim and his friends would "batter him" and that he therefore used pre-emptive violence. He was convicted of manslaughter and sentenced to four and a half years imprisonment.

C.18 There were instances where the discrepancies between the defence evidence and the verdict were greater. Where the conviction was for manslaughter rather than murder there was usually some other factor relating to the participants and/or to evidential difficulties - which may have influenced the court to reach a more lenient verdict. In case 136, for example, two heroin addicts were thought to have had an argument outside an off-licence over the sale of drugs. The police received very little help from the public. Most of the witnesses were children and the prosecution felt it was not in the public interest to call them as witnesses at trial. A teenager who had been told by the defendant's brother that the defendant had come into the off-licence to get a baseball bat with which he then killed his victim, was one of the few prosecution witnesses. However, the teenager did not come up to proof, and the prosecution accepted an offer of guilty to manslaughter, part way through the trial, being unable to refute the defence claims of provocation and/or self-defence.

C.19 Another example was case 100. Having acquired a knife, the defendant deliberately confronted his victim and fatally stabbed him when the victim lunged at him. Both men had criminal records for violence, although the victim's was worse, and he seemed to have a particularly bad reputation. However, the jury may well have been unaware of the victim's criminal record. That the defendant would use violence was very predictable, yet the plea of provocation succeeded despite the clear suggestion of revenge. A seven-year prison sentence was imposed subsequently imposed. Similarly, in case 175 the defendant appears to have been given the benefit of the doubt. The defendant had, earlier in the day, said that he wanted to hurt the victim. Three witnesses said they had seen the defendant approach the victim and shoot him. The defendant initially claimed that the victim was the real aggressor and that the gun had been discharged accidentally; although we found no evidence that the trigger pressure on the gun

was unusually light. However, the defendant then changed his story, arguing that the victim had confronted him and stabbed him. A knife was found at the scene and the defendant did have a minor injury to his neck. The jury convicted him of manslaughter, but his sentence was increased on appeal from seven to nine years' imprisonment.

Implicit defences

C.20 The preceding discussion is based on defences formally relied on; i.e. on the plea entered by the defendant or the defence strategy at trial. Obviously, there can be no certainty that the nature of the verdict means that the defence was successful. The verdicts may also result from a perceived weakness in the prosecution case or for some other reason. Very occasionally, however, it appeared to us that cases could be best understood on the basis of some other defence, which was not formally pleaded by the defence.^[9] For example, in case 105 the victim, a young man described by his family as bad tempered, paranoid and aggressive, was killed by his brother who, in contrast, was said to be quiet and studious and who usually "turned the other cheek". There were no actual witnesses to the stabbing, but their father had heard the defendant shouting "leave me alone" and their mother had heard raised voices. Both parents then saw the victim clutching his chest. The defendant said that his brother had followed him into the kitchen, spat at him, and that he (the defendant) replied in similar fashion. The victim then attacked him and they struggled. The defendant stated he became frightened when his brother picked up a knife and blocked the exit from the room, so he too picked up a knife, purely for self-defence. The victim advanced towards him and the defendant stabbed him in order to save himself. Members of the family said that the victim had attacked them in the past. Approximately two years previously, the mental health team from the social services department had tried to persuade the victim to accept help but he refused. The prosecution accepted a plea to manslaughter by provocation, and the defendant was sentenced to two years' imprisonment suspended for two years. Arguably, the case would be more appropriately treated as one of self-defence, although that would have warranted a complete acquittal.

C.21 It is also worth mentioning case 108, where the defendant strangled his girlfriend. They had had a stormy relationship during which they had separated and then reconciled. They argued and the girlfriend was continually punching the defendant until, in his words, he "couldn't take it any more". The defence pleaded provocation and, less confidently, self-defence. However, defence counsel strongly advised us that the manslaughter verdict was based on lack of intent to kill or cause serious injury and that this was ultimately a case of unlawful and dangerous act manslaughter.

Suicide pacts

C.22 There was just one case in our study where the defence was that the killing wascarried out in pursuance of a suicide pact under section 4 of the Homicide Act 1957. In case 102 the defendant successfully relied on such a plea. A suicide note addressed to the defendant's former wife was found in his car. In the early hours one morning, he phoned her and told her that he and the deceased, his friend, had agreed to commit suicide and that he had already electrocuted the deceased and that he was going to kill himself. The prosecution seem to have been unconvinced by the plea of suicide pact, at least partly because the deceased owed money to the defendant. The jury accepted the plea by a majority verdict and the defendant was sentenced to five years' imprisonment.

Single and multiple defences

C.23 It was noticeable that some defences were more commonly pleaded by themselves. For example, lack of intent was twice as likely to be pleaded by itself than with another defence, and roughly two out of every five defendants who pleaded self-defence did not make alternative pleas. In contrast, about three in every four provocation pleas were combined with another defence. Obviously, some combinations of pleas were superficially inconsistent, such as provocation and lack of intent, and self-defence and lack of intent,^[10] although presumably these pleas were argued in the alternative. We found no evidence of any pattern which would suggest that certain defences are more commonplace in specific kinds of homicide or contexts. In virtually every defence category, cases reflected variations in the surrounding circumstances and apparent motives. For example, not unexpectedly, the majority of defendants who killed their victims in a fight pleaded self-defence and/or lack of intent.

C.24 Since we only studied cases which resulted in convictions for a homicide offence of some kind, we were unable to fully examine the effectiveness of different defences at trial. Nonetheless, some defences pleaded by themselves, and some combinations thereof, appeared to be more successful than others are. In each category of defences, there were wide differences in sentences, even though the verdicts were the same.^[11] Of the 20 defendants who simply denied causing death, 16 were nonetheless convicted by the jury of murder.^[12] Where provocation was pleaded by itself all five defendants were convicted of manslaughter only, as were six of the eight who relied solely on self-defence. More than two-thirds of those who denied malice aforethought were convicted of manslaughter or causing death by dangerous driving. As to cases where two defences were pleaded, all five defendants who combined lack of intent with self-defence were convicted of manslaughter. So too were four of the six who pleaded self-defence and provocation. Conversely, when provocation was relied on in combination with

lack of intent or diminished responsibility seven out of ten defendants were convicted of murder. However, the figures in most of these cases are too small to warrant any firm implications. Nevertheless, these results were particularly interesting since interviews with barristers and solicitors conducted after the examination of CPS case files indicated that it is common for defence lawyers to adopt the tactic of adducing evidence of as many justifications, excuses or other mitigation as possible. This was notwithstanding the theoretical inconsistencies between the defences, especially if there was to be a full trial.

Note 1    We would like to formally acknowledge the co-operation and assistance afforded to us by the CPS in enabling us to undertake the study.    [Back]

Note 2    25 out of the 37 defendants relied solely on lack of intent.    [Back]

Note 3    In 1995 and 1996, 49.3% of defendants charged with murder were convicted of that offence in England and Wales; see Kathryn Coleman, Celia Hird & David Povey, Violent Crime Overview, Homicide and Gun Crime 2004/05 Home Office Statistical Bulletin 02/06 (2nd edition) London: TSO, Table 2.02.    [Back]

Note 4    Although it was impossible to discern with certainty in many instances, it seemed that in about half the cases, the provocation was self-induced.    [Back]

Note 5    [2001] 1 AC 146.    [Back]

Note 6    [2005] UKPC 23, [2005] 2 AC 580.    [Back]

Note 7    Both provocation and diminished responsibility were pleaded. The psychiatric evidence was divided on the strength of the latter defence, and the six-year prison sentence perhaps suggests that the verdict was based more on provocation.    [Back]

Note 8    Partial Defences to Murder (2004) Law Com No.290 para 3.168.    [Back]

Note 9    Our statistical calculations are based on the defences actually/expressly pleaded, although the number of cases where we think there is a better implicit defence is very small and would thus make only minimal difference to the percentage figures.    [Back]

Note 10    Normally, these two pleas are inconsistent, although it is just possible that a defendant may argue that he was trying to defend himself and only meant to cause some rather than serious harm.    [Back]

Note 11    For example, in the five cases resulting in manslaughter convictions where self-defence and lack of intent was pleaded, the sentences ranged from two to 12 years’ imprisonment, and from a suspended sentence to 7 years where provocation was pleaded.    [Back]

Note 12    Clearly, there is an element of risk in such a defence in that it forces the jury to make a stark choice between guilty or not guilty of murder.    [Back]