The Law

Legal Defences to Murder

Homicide is any killing of one human being by another - it may be justified, it may be illegal, or it may be 'excused'. It is the circumstances of the killing that determine which kind of homicide has been committed.

Murder is the intentional and unlawful killing of another human. If found guilty of murder the judge must pass a mandatory life sentence. The judge, however, can set the 'tariff'; that is the recommended minimum number of years that the defendant serves before being considered for parole. This tariff can be changed (increased or decreased) by the Lord Chief Justice and is finally ratified by the Home Secretary of the day.

In some cases the killing of another human is 'justified' in which case the charge of murder is dropped and the defendant set free. In other cases the killing is 'excused' but not totally justified. In these cases the charge of murder is reduced to manslaughter and the judge decides the sentence. The sentence can range from life imprisonment to a community service order. However, the law concerning murder in England and Wales is inherently gendered. We have a legal system that uses precedent for its judgement of cases. In looking back at past rulings current cases merely perpetuate this gender bias. By looking at the legal defences to murder we see how they represent a male understanding of the crime and men's experiences of killing.

There are three main defences to a charge of murder: Self defence is a full defence and results in an acquittal. Self defence can be argued if the defendant can show that their life was in imminent danger. However, in claiming self defence it must also be shown that 'proportional force' was used. So, if the person killed were attacking with their bare fists the use of a knife would be disproportionate. This defence ignores the physical discrepancies between men and women. It also ignores the fact that many women are in fear because of their past experiences of violence from the men.

Diminished responsibility is a partial defence and reduces a murder charge to manslaughter. To argue diminished responsibility the defendant must prove that their mind was impaired by an abnormality at the time of the killing. This defence shifts the focus from the man's violence to the woman's state of mind. It can include the argument that the woman was suffering from 'Battered Woman's Syndrome'. Diminished responsibility medicalises women's actions and implies that had their mental faculties not been impaired they would have continued to be a happy punch bag.

Provocation is also a partial defence. To use the defence it has to be shown that the provoking act was such that a 'reasonable man' would have responded as the defendant did under the same circumstances. Further, it must also be shown that the killing was the result of a sudden and temporary loss of self-control. The classic definition of provocation was given in 1949 in the case of Duffy. Having been subjected to violence throughout her marriage, she was physically assaulted when she decided to leave her husband. Not being strong enough to fight back, she waited until her husband was asleep before stabbing him. When the judge was summing up for the jury he stated that: Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. [1949 1 All ER 932]. The defence of provocation was put on the statute book by the Homicide Act 1957. The Act only specifies a 'loss of self-control'. In order to distinguish between 'revenge killings' and 'loss of self-control killings', judges tend to apply the Duffy criterion of 'suddenness' before putting the issue of provocation to the jury. The defence of provocation ignores the history of violence experienced by women by focusing only on the events immediately prior to the killing. Recent cases show this view changing (see Kiranjit Ahluwalia and Emma Humphreys). But, despite these two cases, the judge ordered the jury to consider only the final provoking act in the case of Diana Butler she was convicted of murder - and only released on probation after successfully appealing against her conviction in 1999. There is no consistency in the application and understanding of the defence when it is used by women. This is because it is based on the idea of a man being provoked when another man insults his 'honour'. The immediate retaliation expected of the offended man ignores the particular experiences of women subjected to male violence. The failure of the above murder defences to adequately reflect women's actual experiences is the reason JFW is campaigning for a new defence to murder - self preservation.

Self preservation

The proposed self - preservation defence:

1. It shall be a defence to a charge of murder, reducing the charge to manslaughter, if:
   1. the deceased person had subjected the defendant or another person, with whom the defendant was at the time of the deceased person's death in a familial relationship, to continuing sexual or physical violence and
   2. the deceased person was at the time of their death or had at any time been in a familial or intimate relationship with the defendant or with the person as described in (a) above and
   3. the defendant believed that, but for their action, the deceased person would repeat the violence as stated above, so that their life or that of the person as described in (a) above was in danger.
2. In Section 1 above: 'Familial' means related, cohabiting or living in the same household 'Continuing' means any act of violence as defined below on more than one occasion 'Violence' means any act that would constitute an offence under the Offences Against the Person Act 1861, the Sexual Offences Act 1975 (as amended), or the Protection from Harassment Act 1997 'Intimate' means any sexual relationship not included in the definition of 'familial' 'Belief' must be reasonable in the context of ongoing abuse and violence
3. It shall be for the defence to raise the issue where the circumstances are as outlined in Section1 above, and it will then be for the prosecution to prove that Section 1 does not apply