SHELDRAKE v DPP

By revisiting two criminal appeal cases, the principle of burden of proof reversal is investigated using drink-driving and terrorism, in order to establish justification of such approaches within domestic law.

Director of Public Prosecutions v Sheldrake

In this matter, the defendant stood accused of being intoxicated while in charge of a parked motor vehicle, and yet despite having no evidence to suggest he intended to drive the car, he was convicted under section 5(1) of the Road Traffic Act 1988; at which point ,the case was appealed.

Attorney General’s Reference No 4 of 2002

In the second case, the defendant was accused under s.11(1) of the Terrorism Act 2000 of holding membership to a proscribed terrorist organisation, and publicly expressing his affiliation in such a way that could incite tensions between the public and the state, although subjective opinion cast doubts as to the credibility of the claims.

Article 6(2) of the Human Rights Act 1998 (HRA) (Right to a fair trial) provides that under criminal law, any person accused of a criminal act will be entitled to a fair trial.

This rests upon the principle that all those accused are considered innocent until proven guilty; however, in the majority of criminal cases, the burden of proof rests with the prosecution, who must prove beyond any reasonable doubt, that the conviction stands. 

In the former case, section 5(2) of the Road Traffic Act 1988 requires that in order to serve as a defence, the accused must be able to show that there was never any intention drive the vehicle, and that under the majority of circumstances, such proof would be evidential or persuasive enough to grant exoneration.

In the latter case, section 11(2) of the Terrorism Act 2000 allows a defendant to show that while a member of a prohibited organisation, their affiliation began prior to the faction’s illegality, and that at no point did the defendant take part in any activities that supported their cause.

Given that on both occasions the burden of proof was contested on grounds of conflict with the HRA 1998, it was down to the House of Lords to take a thorough view of reversed burden, before deciding if those matters that demonstrate an incompatibility of legislation with Convention rights can continue to exist for the greater good and welfare of public safety and interest.

Following a meticulous speech by Bingham LJ, it was agreed by a majority that despite the challenges brought before the House, there was already sufficient grounds under sections (1) of both Acts to secure a judgment, and that any burden of proof presented by the defendants was required to be legal if it were to withstand conviction, while reminding the parties that:

“The reversal of the ordinary burden of proof resting upon the prosecution may accordingly be justified in some cases and will not offend against the principle requiring a fair trial.”

R v WOOLLIN

Loss of life arising from recklessness or deliberate action, is one decided by a jury; however, when the scope of murder is extended beyond reasonable bounds, the verdict does not always reflect the evidence.

When a father became enraged to the point of throwing his three-month old son onto a hard surface, his actions resulted in a fractured skull and death. When indicted, the evidence presented to the jury left questions as to the mens rea of the defendant; and so, it was then left to the presiding judge to direct them accordingly.

In previously similar cases, the test for murder relied upon guidance constructed in R v Nedrick, and one which asked that any jury must avoid the implication of intent, unless they could believe that death or serious bodily harm was ‘virtually certain’ as a result of the defendant’s actions.

This approach narrowed the charge of murder, while allowing for anomalies (such as those presented in the evidence) to contribute towards an alternate conviction for manslaughter.

However, on this occasion the judge derogated from the explicitness of the Nedrick test, using instead, guidance that the appellant:

“[M]ust have realised and appreciated when he threw that child that there was a substantial risk that he would cause serious injury to it…”

Here, the jury found the appellant guilty of murder and dismissed the defence of provocation; and so, when taken to the Court of Appeal, the appellant argued that the widening of the mens rea of murder by the judge, amounted to a gross misdirection and error in law.

The Court dismissed the appeal, while holding that the virtual certainty of death or serious bodily harm was one reserved for cases with limited evidence relating to the actus reus of the accused; and that on this occasion there was sufficient grounds for a widening of the meaning of murderous intent.

However, questions were raised around the need for jury direction in the absence of compelling evidence; in particular whether the defendant intended to kill or cause serious bodily harm, and whether it was virtually certain that in such events, death or serious bodily harm would occur, and that it had been appreciated by the defendant at the time of the act.

Having been brought before the House of Lords, the integrity of the Nedrick test was scrutinised, along with the relevance of judicial direction in matters where the balancing of evidence, and the mens rea of the defendant were pivotal to a fair conviction, as outlined in section 8 of the Criminal Justice Act 1967.

Here, it was found that in the twelve years that the courts had relied upon the Nedrick test, there had been no difficulties in it’s application due to it’s simplicity; and despite some shortcomings in terrorism cases, the test itself was adaptable enough to withstand changes in circumstance.

It was also agreed that by widening the scope of the test through the misuse of words, the trial judge had himself been reckless in his misdirection, and that the conviction was to be quashed in lieu of a manslaughter charge, while further reminding the parties that:

“A jury cannot be expected to absorb and apply a direction which attempts to deal with every situation which might conceivably arise.”

R v STEER

Criminal damage to another’s property when endangering the lives of those in possession, are simultaneous acts that while seemingly joined, are determinable only by the mens rea attached.

In this matter, the defendant appealed against such a conviction on grounds that while capable of the crime itself, he could not be charged for an offence based on subjective opinion, as opposed to lawfully submitted evidence.

After falling out with his business partner, the appellant arrived at his colleague’s home brandishing a rifle; and having rung the doorbell, he then proceeded to aim and fire the gun at the bedroom window, living room window and front door.

No harm was caused to the occupiers; however, once arrested and indicted, he was charged with three offences: possession of a firearm with intent to endanger life under section 16 of the Firearms Act 1968, criminal damage to property with intent under section 1(1) of the Criminal Damage Act 1971 and criminal damage to property while endangering the lives of others, whether through recklessness or intent under section 1(2) of the 1971 Act.

Having pleaded guilty to the first two charges, the appellant argued the third was superfluous to the crime, as the damage caused to the property was not such as to endanger lives, whereas the firing of the gun was evidently sufficient.

Basing his decision on the interpretation of section 1(2) as including not just the physical damage, but the mental intention (mens rea) to endanger lives, the judge dismissed the claim and directed the jury accordingly.

This prompted the appellant to plead guilty, before seeking redress in the Court of Appeal, who allowed the appeal, before the Crown moved to seek the wisdom of the House of Lords. 

While asking the House to determine if, under section 1(2)(b) of the 1971 Act, the prosecution were obliged to establish guilt of endangering life by either the property damage, or the actions of the accused, the House held that the respondent had accepted the recklessness of his actions.

And so, despite the contention of the Crown, it was implausible to suggest that the draftsmen of the 1971 Act had imagined that section 1(2)(b) was to be construed so as to consider the actus reus of the defendant when carrying out the crime, as being sufficient to establish endangerment of life, as opposed to endangerment arising from the physical damage caused.

In the alternative, it was further suggested by the House that the respondent had become culpable for an additional charge under section 17(2) of the Firearms Act 1968, and so the application of section 1(2) of the 1971 Act was both irrelevant and by construction void of effect, while concluding that:

“Upon the true construction of section 1(2)(6) of the Criminal Damage Act 1971 the prosecution are required to prove that the danger to life resulted from the destruction of or damage to property; it is not sufficient for the prosecution to prove that it resulted from the act of the defendant which caused the destruction or damage.”

Hence, the House dismissed the appeal by a majority, while reminding the parties that:

“A person who, at the time of committing an offence under section 1 of the Act of 1971, has in his possession a firearm commits a distinct offence under section 17(2) of the Act of 1968…”

R V LAMBERT

Innocent until proven guilty’ is a phrase common to both English and European law; however, when the conviction of possession of controlled drugs required a reverse burden of proof upon the the defendant, it ran risk of violating the rights afforded citizens under the Convention.

Having been arrested and convicted of possession of £140,000 worth of class A drugs under section 5(3) of the Misuse of Drugs Act 1971, the appellant challenged the trial judges direction and that of the jury under article 6(2) of the European Convention for the Protection of Human Rights (ECHR) (Right to a fair trial).

Further citing that when section 28 of the 1971 Act placed an unfair burden of proof where taken in context with section 6 of the newly introduced Human Rights Act 1998 (HRA) (Right to a fair trial), it rendered the actions of the court void and thereby unlawful.

As point of fact, the HRA 1998 had been drafted and given royal assent in November 1998, but had not taken legal affect until 2nd October 2000; yet, contrastingly the appellant had been convicted on 9th April 1999; and so, relied upon the effects of the Convention and the HRA 1998 in order to undermine the courts decision to pass sentence.

Domestic legal position at the time prior to the 1998 Act was that when accused of possession of controlled drugs, the defendant was afforded reasonable protection through section 28(2) of the Misuse of Drugs Act 1971, which read:

“[I]n any proceedings for an offence to which this section applies it shall be a defence for the accused to prove that he neither knew of nor suspected nor had reason to suspect the existence of some fact alleged by the prosecution which it is necessary for the prosecution to prove that he is to be convicted of the offence charged.”

Misuse of Drugs Act 1971

This allowed the defendant to prove by balance of probability, that possession of such substances arose from ignorance of it’s existence rather than conscious choice.

Section 28(3)(b)(i) further allowed the defendant to seek acquittal by proving that he had no reason to suspect that whatever substance he possessed was a controlled drug.

When heard before the first court, the judge applied existing criminal procedure by directing the jury to assume that the defendant knew he had possession of the drugs, and that by reverse burden of proof it was for the defendant to demonstrate otherwise.

It was this approach that the appellant relied upon when citing the Convention rights and HRA 1998 principles, inasmuch as article 6(2) of the Convention stated that “everyone charged with a criminal offence shall be presumed innocent until proven guilty according to law”; yet, despite his protestations, the court reached summary conviction and he was sentenced to seven years in prison.

Having later brought his case before the Court of Appeal, his appeal was dismissed, while a number of questions were raised concerning both the presumption of innocence and the retroactive nature of the HRA 1998.

This allowed his case to be heard again in the House of Lords, where consideration of the hearing date (April 2001) enabled the House to examine the validity of his claim, after the effects of the HRA 1998 had begun.

Through the powers of section 6(1) of the HRA 1998, it was possible for individuals to hold a local authority liable for violations of the Convention, and that under English law, the House of Lords was exactly that.

However, the caveat to this argument was that the initial conviction was in fact prior to the 1998 Act, and that for perhaps obvious reasons, no express provision had been made to allow retroactive effect upon previously decided cases.

It was for that primary reason that the appeal, while occurring inside the watershed of human rights protection, was considered by extension, as nothing more than a decisive aspect to the whole case; while section 7(6) of the HRA 1998 alone denoted that appeals against the decisions of a court applied only to those matters brought by public bodies and not convicted criminals.

This translated that regardless of hypothetical arguments, the outcome would have remained the same, and so the appeal was again dismissed, while the House reminded the parties that:

“[A] true constituent element can be removed from the definition of the crime and cast as a defensive issue whereas any definition of an offence can be reformulated so as to include all possible defences within it. It is necessary to concentrate not on technicalities and niceties of language but rather on matters of substance.”

Additional Note

The imposition of legal burden upon defendants under section 28 of the Misuse of Drugs Act 1971, was compared to the empowering effects of the Convention, and the House agreed that while the duty of the prosecution was an establishment of guilt, failure to convince a jury that the accused was ignorant as to the existence of an illegal substance should not determine the verdict, and ran counter to the principles of the 1998 Act.

R v KINGSTON

Sexual assault and involuntary intoxication of the accused become central to the question of defence when the mens rea remains equally present despite the influences of a third party.

In this House of Lords appeal, the idea that perhaps existing criminal law has overlooked the subjective effects of those liable for acts against the person, is explored before deciding how best to answer it.

In this case, the actions of two men were complicit to the sexual assault and degradation of a fifteen year-old boy, while under the influence of a powerful sedative.

The background to the matter stemmed from a business arrangement gone sour, and that left the respondent victim to the subterfuge of his colleague, who unknown to him, was acting on behalf of the slighted party.

Having been paid to place the respondent in a compromising position, the man had arranged for them to invite the teenager to a room, before using a number of drugs to induce the victim into a state of unconsciousness, whereupon the respondent engaged in a variety of lewd and sexually abusive acts as his colleague secretly filmed and took pictures of his assault upon the boy.

When the images and recorded film were obtained by the police, the two men were taken to court and charged with indecent assault.

Upon conviction, the the respondent pleaded a defence of involuntary intoxication, on grounds that the co-defendant had also plied him with a similar drug, and that by extension, his actions upon the victim were as a result of diminished responsibility.

It was on this premise that the respondent pleaded his innocence and sought acquittal on the fact that as previous case law provided, involuntary intoxication was sufficient enough to remove the contributory effect of mens rea; and so while the intention to carry out an indecent sexual act was latent within the respondent, it was only manifested through the actions of another, and not by conscious choice.

Precedent for a defence under voluntary intoxication rested upon the outcome of R v Majewski, where the court found that the informed decision to drink excessive amounts of alcohol was not suffice to exemption from the consequences of damage caused afterwards.

However, where a defendant has lost conscious reasoning through the act of another, it was held that mens rea could not logically exist as the decision to act unlawfully was not one of full cognisance but diminished thinking.

In this instance, the capability to sexually abuse minors was knowingly present within the respondent, and so reliance upon an unwittingly ingested drug prior to the act, reduced the foundation of that defence when used as a means of acquittal.

Having subsequently been challenged in the Court Appeal, the conviction was quashed, after which the Crown appealed to the House for reasons of public interest.

The question raised was whether a predilection for young boys negated the defence of involuntary intoxication; and if so, whether it was for the prosecution to establish, or that of the defendant.

Having traced the legal position from as far back as 1830, the idea that temporary insanity or ‘lunacy’ could provide sufficient defence to a criminal act was rebuked when it appeared that certain generosities were afforded those accused, albeit in circumstances contrary to their normal course of behaviour.

In this instance, there was clear evidence that the respondent was predisposed to engaging in deviant sexual acts, and so regardless of what volume or form of intoxication preceded the acts, it was not such that became the source of that unlawfulness, but rather the mindset and neurology of the accused at the point of origin when establishing mens rea.

For that reason, the House denied that the current boundaries of involuntary intoxication defence were to extend further than as before, and that in light of that fact the Crown’s appeal was to be upheld, while going further to remind the parties that:

“[I]t is no answer for the defendant to say that he would not have done what he did had he been sober, provided always that whatever element of intent is required by the offence is proved to have been present.”

R v HOWE

In a conjoined appeal, the murder of two men in separate circumstances, led to enquiry as to the extent of duress in criminal acts; and where used as a defence to murder, whether it was capable of effecting sentencing reduction or even acquittal where two parties were liable for the act.

Howe and Bannister 

In the first matter, it was argued by two of four defendants, that their participation in a number of killings and acts of abhorrent violence, was based upon a fear of retribution by the older of the men (M).

There were two counts of murder and one of conspiracy to murder, as the third man narrowly escaped death; and on both occasions, the two named appellants were present, albeit jointly culpable only for the killing of the second victim.

After the third defendant and M pleaded guilty to murder under section 1 of the Criminal Law Act 1977, it was then left to the appellants to submit pleadings that they had acted under duress while subject to the instructions of M; and that subsequently, their conviction for murder should be one reduced to manslaughter.

Burke and Clarkson

In this instance, the premeditated killing of a man was brought about through fear of his providing evidence against the second appellant in court.

It was argued by the first appellant, that his willingness to shoot the man was tempered by his fear of what might happen to him if he didn’t act on the second appellant’s instructions.

Further to this, was the contention that when confronted on his doorstep, the victim was killed through accidental firing of the gun, and not by a deliberate act.

For this reason, the first appellant pleaded manslaughter through accidental death, while the second appellant claimed to have had nothing to do with the shooting whatsoever.

When first argued, the jury were directed as to the merits of manslaughter under duress; and on both occasions, found the appellants equally liable for murder.

When taken to the Court of Appeal, the jury were again asked to take an objective view when considering the influence of those providing instructions, and those that committed the criminal acts; where again, the appeals were dismissed and the convictions upheld.

When presented to the House of Lords, it was argued that where objective reasoning for the crime of murder could not allow for a reduction through duress, it was only fair that the appellants were afforded the right to subjectively defend their actions in the face of perceived threats.

This approach ran contrary to English criminal law, and was subject to previous instances where similar claims had been presented and denied (R v Kray and R v Lynch as two such examples).

In Lynch however, the Court of Appeal had been willing to allow a defence of duress, when the appellant had merely driven the killer(s) to their destination.

Through careful examination of the facts behind Lynch, the House found that while duress was acknowledged in matters of serious wounding, it would constitute an affront to the principles of law if those accused of murder, or even as accomplices to murder, were entitled to reason away their actions on grounds of weakness or fear.

For that reason, the appeals were dismissed, whilst a deeper conviction of the all-encompassing weight of murder remained firm when the House reminded the parties that:

“The justification for allowing a defence of duress to a charge of murder is that a defendant should be excused who killed as the only way of avoiding death himself or preventing the death of some close relation such as his own well-loved child.”

R v HINKS

An amendment to the Theft Act 1968 in relation to appropriation, becomes central to the discussion when a single mother takes advantage of a vulnerable adult.

As a single parent, the appellant befriended an older man who while living alone, was of low intelligence and in need of daily care, and yet through the course of their relationship, the appellant manipulated the man into withdrawing small sums of money from his £60,000 inheritance, almost to the point of exhausting his funds, before walking away with his television set.

Having been caught and convicted of theft under section 1 of the 1968 Act, the appellant continued to claim that her actions were honest, inasmuch as he had agreed to give her the money, and had accompanied her to the building society in order to facilitate the withdrawals.

In addition to this, she claimed that those gifts were for the betterment of herself and her young son, and that the television set was simply another act of charity on his part.

With her contention dismissed by the Court of Appeal, it was left to the House of Lords to examine the precision of the Theft Act 1968 and those terms applicable to appropriation.

Prior to the drafting of the 1968 Act, it was expressed in section 1(1) of the Larceny Act 1916 that:

“A person steals who, without the consent of the owner, fraudulently and without a claim of right made in good faith, takes away and carries away anything capable of being stolen with intent, at the time of such taking, permanently to deprive the owner thereof.”

Larceny Act 1916

However, when examining the terms of the Theft Act 1968, section 1(1) instead reads:

“A person is guilty of theft if he dishonestly appropriates property belonging to another with the intention of permanently depriving the other of it; and ‘thief’ and ‘steal’ shall be construed accordingly.”

Theft Act 1968

This variance (or absence) of words was what the appellant relied upon when claiming that the monies given were gifts, and that despite any subjective opinion that her receipt of them constituted a criminal act, she was in fact innocent and therefore wrongly convicted.

When considering the finer points of theft and the decision by Parliament to broaden the effect of theft under the 1968 Act, it had already been agreed that in both R v Lawrence and R v Gomez, appropriation of property belonging to another under dishonest circumstances was still tantamount to theft, even where knowing consent had been provided.

In Lawrence, a taxi driver had overcharged a foreign student in the knowledge that the fare ought to have been less; at which point, the student duly paid, while In Gomez, a shop owner allowed payment for goods by cheque on the pretence that the cheques were valid, particularly after his conspiring employee confirmed their authenticity.

Those two cases were identical in context, inasmuch as the victims were misled into parting with property on the assumption that the transactions were honest; however, the appellant had induced her victim into believing that he had the funds to give away and that the cause of his donations was genuine as opposed to one of her simple greed.

This raised further questions around his ability to understand his decision making, and whether her appropriation under false pretences allowed her to circumnavigate the law and avoid penalty.

With a degree of division, it was finally decided that despite any argument that relinquishing property under conscious knowledge could not amount to theft, the dishonest intentions of the recipient were encompassed by section 1 of the Theft Act 1968, regardless of whether the donors believed the act to be lawful, while the House reminded the parties that:

“In practice the mental requirements of theft are an adequate protection against injustice.”

R v COLLINS

A conviction of burglary with intent to rape becomes convoluted when under appeal, the defendant places the burden of proof upon a building fixture.

In an unprecedented case, the defendant was a teenager who for one reason or another, took it upon himself to enter a teenage girl’s bedroom before engaging in sexual intercourse.

What distinguishes this impulsive act from one that many might expect at that age, is the fact that the complainant allowed his entry on the mistake that she believed him to be her boyfriend, and not a complete stranger.

Having first consumed a large amount of alcohol, the defendant decided that one way or another, he was going to have his way with a willing girl, somewhere.

On this occasion, he selected the home of a girl who, while not directly known to him, he had seen when working on her parents house sometime before.

Having climbed a ladder to her bedroom window, the defendant saw her lying naked in her bed and removed his clothes, while fully aroused.

The complainant was also inebriated to some degree, and therefore beckoned him into her bed, while physically pulling him in before they began to have sex.

After a period of time, the complainant realised that the person she was having sex with was not her boyfriend; upon which, she slapped him and ran to her bathroom.

Following his arrest the following morning, the defendant confessed to his actions but denied that he intended to rape her; instead noting that she had willingly invited him into her bedroom (much to his surprise) on the pretence that they were to have sex.

When heard before a jury, the charge brought before them relied upon section 9(1)(a) of the Theft Act 1968, which explained that burglary was an act requiring trespass with intent to commit an offence, which in this instance fell under section 9(2) as rape.

Having explained the nature of his entry and the preceding acts, the judge left the jury to consider whether his trespass was intentional or reckless, upon which it was agreed that the former applied.

Having appealed, the defendant challenged the conviction on grounds that it had been unproven as to whether the entry was undertaken based upon the complainant’s words and actions, and thus remained unproven as to whether the defendant was outside the window frame or inside the bedroom when she invited him in.

In light of the fact that insufficient evidence existed when establishing that fact, it was decided by the Court that a degree of misdirection had occurred in the original hearing, and so without the full disposal of the truth the conviction for burglary could not stand, while the court reminded the parties that:

“[T]here cannot be a conviction for entering premises “as a trespasser” within the meaning of section 9 of the Theft Act unless the person entering does so knowing that he is a trespasser and nevertheless deliberately enters, or, at the very least, is reckless as to whether or not he is entering the premises of another without the other party’s consent.”

R v BREE

The premise of statutory rape relies upon the principles of informed consent, and such legalities further rely upon the effects of the Sexual Offences Act 2003 when establishing guilt.

On this occasion, the defendant contended that the act of sex between himself and the complainant began and ended with reasoned determination, and not forcible violation.

When a group of university undergraduates chose to have a night out, they did so in the knowledge that drinking to excess brings consequences that while not unexpected, can lead to actions which in the aftermath of intoxication, give rise to shame and regret.

After drinking a voluminous amount of alcohol and liquid stimulant, the complainant paired off with the defendant, before both of them returned to her lodgings; whereupon, the complainant began vomiting.

Having cleaned her up and placed her in her bed, the defendant sat with her, before the two began physically enjoying each other (albeit through physical cues and minimal dialogue).

Having discussed the availability of contraception, they proceeded to engage in intercourse; again, with the defendant relying upon visual and audible cues as to the complainant’s consent.

For preventative reasons, the act of intercourse ceased, before the defendant left the property, after having asked if the complainant wished him to stay the night.

It was shortly afterwards that the complainant contacted friends and family while intoxicated, to explain her distress at what had occurred.

Citing statutory rape, the case was brought before the Crown Court, where the jury were asked to consider the ramifications of section 74 of the Sexual Offences Act 2003, which outlined in instances where rape under section 1 of the Act has been claimed:

“[A] person consents if he agrees by choice, and has the freedom and capacity to make that choice.”

Sexual Offences Act 2003

It was this distinction, that when held against the facts of the case, was of primary importance to the minds of the jury when determining guilt; and so, as the finer points of the complainant’s statement were examined, it became apparent that despite being heavily intoxicated prior to her vomiting, her state was such that she was aware enough to know that she, and the defendant, were engaging in sex; and that at no point did she express her unwillingness to have unprotected sex prior to the defendant withdrawing from the act before ejaculation could occur.

In the first hearing, the jury found the defendant guilty of statutory rape; yet upon appeal, the Court examined the subtleties of the judges direction, and noted that inadequate emphasis had been placed upon the complaint’s conscious acquiescence in lieu of the defendant’s persistence.

These differences persuaded the verdict rather than apportioning responsibility on both parties as consenting adults; and so, in light of these oversights, and in addition to a number of secondary mitigating factors, it was then agreed that for those reasons the conviction was to be quashed, while the court reminded the parties that:

“[F]or the purposes of the 2003 Act “capacity” is integral to the concept of “choice”, and therefore to “consent”

R v AHLUWALIA

Victim to an arranged marriage and having endured years of systematic and debilitating abuse at the hands of her husband, the defendant in this appeal case found herself subjected to yet further suffering through the absence of vital medical evidence when her case was presented at trial.

Having been introduced by her brother and sister-in-law while abroad, the defendant, who had been previously studying towards a degree in law, was by cultural obligation and the wishes of her family, forced into marrying the man who later became the subject of her actions.

Prior to their starting a family, the husband began a campaign of mental and physical abuse spanning a decade, until such time as her spirit was broken and death seemed the only solution.

After two failed suicide attempts, the defendant, who herself had been subjected to continuous death threats and physical battery, discovered that her husband was now having an affair with another woman, while uncompromisingly flaunting it with little thought to how degrading and shameful such deceit was to both them and their children.

It was after pleading for him to remain in the marriage, that the defendant set aside a bucket of petrol and a bottle of caustic soda until the time came for her to retaliate.

Unable to sleep one evening, the defendant entered the marital bedroom and proceeded to throw the contents of the bucket over the husband, before lighting a stick and igniting the petrol, whereupon the husband ran screaming from the house before being taken to hospital suffering major burns and dying days afterwards.

At trial, the court found itself with no evidence to support her actions, and after examining both defences offered, the judge explored the argument that her actions represented the cumulative effect of years of provocation by the husband, and that the jury should interpret her actions as that of manslaughter and not murder.

Relying on the changes made to the Homicide Act 1957, there was greater emphasis on the expanse of time between causative actions and those of the defendant, rather than instantaneous responses to attacks.

However, insufficient emphasis was placed upon the mental state of the defendant at the time the act took place, which subsequently resulted in a murder charge, despite the background to the matter.

When taken to the Appeal Court, the judges held that arguments of misdirection were insubstantial to the effect that the jury might have mitigated the verdict.

However, there was the discovery of medically professional evidence that relied upon the Mental Health Act 1983 when describing the defendant as suffering from ‘a major depressive disorder’, thus allowing for diminished responsibility as an alternate defence.

Although the Court typically frowned upon the late presentation of key evidence, it made allowances on this occasion under the powers of section 23(1) of the Criminal Appeal Act 1968, before moving to request a new trial, on grounds that fair and balanced representation was critical to the maxim that ‘Justice should not only be done, but should manifestly and undoubtedly be seen to be done’, while reminding the parties that:

“The phrase “sudden and temporary loss of self-control” encapsulates an essential ingredient of the defence of provocation in a clear and readily understandable phrase.”