There are two issues
that need to be considered to assess Efra’s potential criminal responsibility.
The first issue is whether Efra has committed murder with regards to the chain
of causation and the second one is the defences that Afra can get.
The first problem we
shall deal with is whether Afra’s committed murder. Lord Coke said that ‘Murder is the unlawful
killing of a human being under the Queen’s peace with malice aforethought’1. To
establish murder, the actus reus and the mens rea must be proved and coincide2.
Efra hitting John, a human being3,
under the Queen’s peace4 on
his head is part of the actus reus element. The act is also unlawful, as Afra’s
did not act in self defence5
and Afra’s act of hitting John was done by her own freewill.6
Efra appears to be an
adult, who by law is capable of forming the mens rea and assume criminal
responsibility for her conduct7.
The mens rea for murder is malice aforethought, which was interpreted in Cunningham8
and Vickers 9as
having the intention to kill or cause grievous body harm. Thus, there is
sufficient evidence that Efra’s hitting John ‘as hard as she can’ shows that
she had the intention to cause grievous body harm. If we apply the subjective test
for direct intent in Mohan10,
it seems that the resulting injury was Afra’s aim or purpose. Nevertheless, it
can be argued that Afra’s attack was not premeditated, and the fact that she
was ‘shocked at she has done’ attests to it, but it could also be found using
the oblique intent test in Woolin/Nedrick11 that grievous body harm was virtually certain
to occur, and Afra foresaw this as a possibility, hence leaving the question of
intention to the jury.
It is also necessary to
prove beyond a reasonable doubt that the act of the defendant caused the death of
the victim. In order to establish factual causation, the ‘but for test’ in White12
must be used. But for Afra’s act of hitting him, would he have died? The answer
is no and we then move to legal causation which requires the act to be ‘more
than de minimis’13.
Here, it appears that the reaction to Afra’s act resulted in ‘unconsciousness, broken
skull and bleeding profusely’ which played a significant role in John’s death and
was therefore not a minimal factor .Facts mention that John was dropped twice
by paramedics and although Afra might argue that this contributed to the death14,
her act was still a substantial cause of the original harm and was still
operative at the time of death15 and the medical negligence was not ‘independent
of the original act and in itself so potent’ as explained in Cheshire16.
Moreover, medical evidence contends that he would not have survived the
original wound, and there might be no break in the chain of causation contrary to
If Efra is convicted of
murder, she will be charged with a mandatory life sentence18
but she can rely on partial defences that could reduce her liability to
Afra can plead the
defense of loss of self control provided under the coroners and Justice Act19 which sets out 3 requirements that must be
We will access each, and see if Afra can have the defence of self control.
Firstly, the defendant must
have lost their self-control at the time of the killing but it need not be
but the greater the delay, the greater the possibility that D acted out of
and S54(4) states that the defence is not available if the defendant acted in a
considered desire for revenge as upheld in
Ibrams & Gregory 23. In
this scenario, Afra was in shock
afterwards and phoned the ambulance and this is sufficient to say that her act was
not ‘thought and considered’24 and
Afra lost control at time of killing as facts point out that it was the final
betrayal that was too much for her.
The loss of control
must have a qualifying trigger which include fear, serious violence25 ,
things said or done and both26 which
constituted circumstances of an extremely grave character27,
and caused D to have a justifiable sense of being seriously wronged28. Sexual
infidelity is to be disregarded29 but,
Afra can assert that the words John said had a trigger factor. ‘You are such a
fat and frigid pudding’ are the words of John, falling under the category of
personal attacks. If we acknowledge Afra’s weight gain problems, Afra could
have a sense of being seriously wronged, but eventually, it is up to the jury
to decide using an objective test30 .If
we apply Zebedee31
this defense may fail as these cases emphasized the meaning ‘extremely grave’ as
being really serious and verbal attacks do not seem to be extremely grave. Prosecution
might also argue that Efra incited John to use those words by intercepting his
call but given the facts, it is difficult to prove that she did that for the
purpose of providing an excuse to use violence33 especially
since the magnitude of her act is not the same as in Bowyer34
and this remains a weak argument.
says that whilst sexual infidelity is not a qualifying trigger, it should not
be read as excluding evidence of sexual infidelity, as part of the context and
where other factors had a qualifying factor, hence it is possible that the jury
might take things John said and his 24 affairs into account while accessing
whether this amounted to circumstances of an extremely grave character and gave
Afra a justifiable sense of being wronged.
requires that a person of the defendant’s sex and age, with a normal degree of
tolerance and self-restraint and in the circumstances of the defendant, might
have reacted in a similar way. In R v
personal characteristics of the defendant were considered but this was
overruled in the Privy Council and was not
applied in Holley37
unless, jury is convinced that any reasonable person would have acted the same
then she can satisfy this criteria but considering, Afra’s mental illness that may
have a bearing on the temperament of a defendant, Afra should be advised to run
the defence of loss of diminished responsibility
The defence for diminished responsibility is also provided by the
Justice and Coroners act which sets out 3 criteria39
D should suffer from an abnormality of mental functioning which arose
from a recognized medical condition40.
Abnormality of mental functioning is accessed by reference to what a reasonable
man would regard as abnormal and was defined in Bryne41.
Afra could have abnormality of mental functioning arisen from depression42
and the case of Seers43
and Gittens44 acknowledged
depression as a recognized medical condition.
The abnormality must substantially impair D’s ability to understand
nature of conduct, form rational judgment and exercise self control45
and also provides an explanation for D’s act46.
It was said in Lloyd47 that substantial means more than
minimal but not total. In Ramchurn48,
the impact of depression, was more than trival but not substantial, hence
defendant was charged with murder. On the facts, we can figure out that Afra
was suffering from emotional domestic abuse, now recognized in the Serious
Crime Bill49 due to John’s
adultery for years50,
which perhaps explains her depression similarly to Ahluwalia51
and her inability to form a rational judgment and understand the nature of her
conduct as supported by the Law Commission in situations ‘where abused person
kills the abuser’52
which also relates to the final straw principle53.
Furthermore, her depression might have substantially impaired her ability to
exercise control, and since Afra did not match up to the standard of a
reasonable person earlier in the loss of self control defense, it is possible
that she might fulfill this element but as the recent case of Golds54 pointed
out, the jury has to be convinced, on the degree of impairment within the
extremities ‘more than merely trivial, but less than total’ to allow this
Lastly, her abnormality must provide explanation for her killing, S2(1B)
clarifies that this will be the case where the abnormality was at least a
significant contributory factor in causing the defendant to carry out the
conduct and in Diestschmann55,
it was stated that D’s condition should not be merely incidental. Here, it appears
that there is indeed a significant link between the abnormality of mental
functioning and the conduct resulting in John’s death but Afra must prove
diminished responsibility on a balance of probabilities and by calling evidence
from at least two medical experts as established in Dunbar 56
As discussed above, the defense of diminished responsibility is more
likely to succeed than the loss of self control, and as a result, reducing
Afra’s murder conviction to voluntary manslaughter, provided Afra’s medical
evidence is compelling.
Lord Coke, Coke’s Institutes (1628)
Meli v R 1954 1ALL ER 373
General’s reference(No 3 of 1994) 1997 3 WLR 421
v Page 1953 2 All ER 1355
v R, 1971 AC 814
v Baxter 1958 1 All ER 193
16 of the Children and Young Persons Act 1963(doli incapax)
v Cunningham 1981 2 All ER 863
v Vickers 1975 2 All ER 945
v Mohan 1975 2 All ER 193
v Woolin 1998 3 WLR 382 ;R v Nedrick 1986 3 All ER 1
v White 1910 2 KB 124
v Cato 1976 1 ALL ER 260
v Jordan 1956 40 Cr App Rep 152
v Smith 1959 2 QB 35
v Chesire 1991 3 ALL ER 670
v Jordan 1956 40 Cr App Rep 152
Criminal Justice Act 2003, s225.
and Justice Act 2009 ,s 54.
, s S54(2).
Reed and Michael Bohlander: Loss of Control and Diminished responsibility
Domestic, comparative and International perspectives ( Ashgate Publishing
v Ibrams & Gregory 1982 74 Cr App R 154
v Evans2012 EWCA Crim 2
Coroners and Justice Act 2009 s 55(3)
Ibid, s 55(4).
Ibid, s 55(4)(a)
Ibid , s 55(4)(b).
Ibid, s 55(6)(c).
v Hatter 2013 3 All ER 308 at 310
v Zebedee 2012 EWCA Crim 1428
v Mohammed 2005 EWCA Crim 1880
Coroners and Justice Act 2009, s 55(6)(b).
v Bowyer 2013 3 All ER 308
v Clinton 2012 2 All ER 947
v Smith (Morgan James) 1998 All ER (D)
General for Jersey v Holley 2005 UKPC 23
v James; R v Karimi 2006 1 All ER 759
Coroners and Justice Act 2009, s 52
v Bryne 1960 2 QB 396
Health Organization, Mental disorders Factsheets 2017, The Classification of
Mental and Behavioral Disorders http://www.who.int/classifications/icd/en/GRNBOOK.pdf
accessed on 25/11/2017
v Seers 1985 Crim LR 315
v Gittens 1984 3 All ER 252
Coroners and Justice Act 2009, s 52(1)(b).
Ibid, s 52(1)(c)
v Lloyd1967 1 QB 175
v Ramchurn 2010 EWCA Crim 194
Crime Act 2015 ,s76
or Coercive Behaviour in an Intimate or Family Relationship ,Statutory Guidance
accessed on 2/12/17
51 R v Ahluwalia 1992 LRC (Crim) 463
Law Commission, Murder, Manslaughter and
v Humphreys 1995 4 All ER 1008 at 1010
v Golds 2016 UKSC 61
v Diestschmann 2003 1AC 1209 (pre 2009)
v Dunbar 1957 2 All ER 737
v Brennan 2014 EWCA Crim 2387