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Practise Exam Questions DR AND PROVOCATION.
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Ibby, a woman of 28, has been married to Zaky for seven years. Zaky is an alcoholic and often returns home drunk. Whilst in this state, he often punches and slaps Ibby. This behaviour has been taking place for the past three years. One evening, Zaky returns home drunk and slaps Ibby on the face. Zaky then falls asleep on the sofa. Ibby spends a couple of hours contemplating what has happened and, in a sudden burst of fury, beats Zaky on the head intending to kill him. Ibby is charged with the murder of Zaky. She does not dispute that at the time of the incident she intended to kill him. Consider how Ibby might defend herself on a charge of murder. [50 marks]
In this essay I am going to outline how Ibby might be able to defend herself on a charge of murder.
The two defences that could be available to Ibby are provocation and diminished responsibility. • The defence of provocation is set out in Section 3 Homicide Act 1957…… The Act outlines that the jury must apply whether the defendant lost his control- this is a subjective test and secondly whether a reasonable man would have lost control (objective). • The Act specifically states that provocation can be things said or did, this can range from physical assaults as in Pearson (1992) to unwanted sexual advances.
It must be satisfied that Ibby lost her self control in order for the provocation defence to be successful. In the case of Duffy (1949) which also involved domestic violence, the loss of self control needs to be sudden and temporary. • If there is a long time lapse between provocation then this sudden and temporary loss of self control becomes harder to prove, as held in Ibrams and Gregory (1981) where there was 5 days gaps between an attack and a killing.
It could be argued that Ibby did not immediately respond to her Husband’s abuse, so loss of self control was not sudden.
However, the case of Thornton (1996) highlighted how women may lose self control slower than men, this was identified as slow burn. The CA also held that there could be a sudden loss of control triggered by a minor incident. It could be argued that Ibby lost control as a result of Zaky slapping Ibby on the face.
Ibby after years of abuse may also be suffering from battered wife syndrome which may help to explain her slow burn reaction. However in the case of Thornton it seems like the cooling off period may not have been as long as Ibby’s and this may be problematic for Ibby.
Under section 3 of the Homicide Act the jury must also take into account the effect of provocation on a reasonable man. In Camplin (1978) it was held that age, sex and other relevant characteristics must also be considered when looking at how a reasonable man would react. Therefore, it is important that the Jury must consider Ibby’s characteristics- so if there is proof that Ibby is suffering from battered woman syndrome then this must be taken into account as highlighted by Thornton (1996).
In my view, due to the cooling off period where Ibby was left with time to contemplate what happened the defence of diminished responsibility may be more appropriate. • Under Section 2 of the Homicide Act if a person kills whist he is suffering from an abnormality of mind which impaired his mental responsibility for the killing then the defence of diminished responsibility may be used.
In Ahluwalia (1992) where the D had been physically abused over many years, the D waited for her husband to fall asleep before killing him, because he threatened her with violence for not paying a bill. The Court of Appeal did not allow the defence of provocation as her acts were not sudden but instead allowed the appeal on the grounds of diminished responsibility.
In conclusion it is likely that diminished responsibility would be a more successful defence for Ibby rather than provocation on the basis that there was some time lapse between provocation and killing, so loss of self control was not sudden. In the case of Ahluwalia- battered wife syndrome was accepted as a psychological condition and hence the defence of DR could be used.
Additional Points • Make sure you mention need for reforms in relation to this area of law- in particular provocation. • Make sure you mention burden of proof is on prosecution.
