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The Homicide Act 1957 (5 & 6 Eliz.2 c.11) is an Act of the Parliament of the United Kingdommarker.

It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice (except in limited circumstances), reforming the partial defence of provocation, and by introducing the partial defences of diminished responsibility and suicide pact. It restricted the use of the death penalty for murder.

Similar provisions to Part I of this Act was enacted for Northern Irelandmarker by Part II of the Criminal Justice Act 1966.

History

In part, the Act was a response to the case of Craig and Bentley (1952), most recently reviewed in R v Derek William Bentley [230764]. Three key issues were thrown into focus:
  • constructive malice: the trial judge ruled that there was no defence to the charge of murder once the parties were found engaged in a common purpose to use some violence to resist arrest. The mens rea (latin for "guilty mind") of murder then included:
:an intent to commit any felony whatever, and
:an intent to oppose by force any officer of justice... in... the execution of [his duty] provided the offender has notice that the person killed is such an officer so employed;
  • Derek Bentley had a mental age of no more than 11 but that fact was irrelevant because there was no sentencing discretion given the conviction of murder;
  • the death penalty: Derek Bentley was hanged on 28 January 1953.


Part I - Amendments to the law of England and Wales as to the fact of Murder

This Part does not extend to Scotland.

Section 1 - Abolition of constructive malice

Constructive malice was the doctrine that malice aforethought, the mens rea (Latin for "guilty mind") for murder, could be attributed to the defendant if death was caused during the commission of another felony, e.g. the accused accidentally caused death during a robbery or burglary (which were then felonies). s1 Act 1957 abolished constructive malice except where the intention implicit in the other crime matches that required for murder (i.e. an intention to kill or to do grievous bodily harm), e.g. the robber always intended to cause serious injury as a part of the robbery. Thus, the automatic linkage between the other crime and the murder was broken, and juries were then required to consider more directly whether the accused was culpable when engaging in the conduct resulting in death. But this made the Act unclear in its effect. Although the marginal note to the section purports to abolish the doctrine of "constructive malice", it failed to abolish the concept of felony, the rules relating to the arrest of felons, and the general rules specifying the test for mens rea which the juries were to apply. Hence, the Act did not abolish the principles of "expressed malice" or "implied malice", i.e. malice could be implied by the words and expressions used by the accused, or there was a set of circumstances from which malice could be implied. These were objective tests that enabled the court to impute or "construct" the malice. This continuing common law was the basis of the decision in DPP v Smith (1960) 3 AER 161 where the Lords confirmed that neither expressed nor implied malice had been repealed by the section (see Glanville Williams “Constructive Malice revived” (1960) 23 MLR 604 and J.C. Smith, “Case and Comment: DPP v Smith” (1960) Crim. LR 765). It was not until the Criminal Law Act 1967 abolished the distinction between felonies and misdemeanours that the old common law rules on malice for the proof of mens rea in felonies could no longer apply, and the legislative intent of the Homicide Act 1957 was finally realised. Nevertheless, the general rule has been retained in the United Statesmarker as felony murder, and the effect is retained in the English law of manslaughter where death results while committing an unlawful and dangerous act.

Voluntary manslaughter defences

The Act created two partial defences, namely diminished responsibility and suicide pact, which, if satisfied, will reduce a charge of murder to a charge of voluntary manslaughter. It also changed the law of provocation, a partial defence under common law.

Diminished responsibility

The Report of the Royal Commission on Capital Punishment ((1953) Cmd 8932) took the view that mental abnormality which resulted in a diminished responsibility, was relatively common and potentially of importance to a wide range of offences. The Commission therefore asserted that a “radical” amendment to the existing law would not be justified for the “limited” purpose of enabling the courts to avoid imposing the death sentence. Parliament was not impressed and section 2 of the Act now provides that diminished responsibility is available as a defence where the accused was, at the time of the offence, suffering from an "abnormality of the mind" which substantially impaired his mental responsibility for his acts or omissions resulting in murder. The burden of proof is on the accused to show that she/he was suffering from diminished responsibility.

This defence is distinguishable from the defence of insanity for while the former requires a substantial impairment of mental responsibility arising from an abnormality of the mind, the latter requires a defect of reason arising from a disease of the mind. Broadly, the difference is that diminished responsibility is characterised by a temporary emotional or mental state which causes the accused to lose control over whether and how to act, whereas insanity is any inherent (internal) defect which so radically affects the defendant that he or she does not understand what is being done or that it is legally wrong to do it (other conditions may cause the accused to become an automaton, i.e. to be unable to control her/his body's movements, see automatism and its case law). A further distinction is that the defence of diminished responsibility reduces a murder charge to voluntary manslaughter, whereas the defence of insanity excuses the accused of all guilt (but may require the accused to be placed in special care, say, by imposing a hospital order under section 37 of the Mental Health Act 1983, and automatism results in a complete acquittal.

Abnormality of the mind
An abnormality of the mind is a "state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal" (R v Byrne [1960]). This can arise from a mental incapacity to reason properly or from an inability to exercise willpower to control physical acts. Examples of an abnormality of the mind include:
  • post-natal depression (R v Reynolds [1988])
  • battered woman syndrome (R v Ahluwahlia [1992]; R v Hobson [1998])
  • excessive jealousy (R v Vinagre [1979])
Intoxication may not constitute an abnormality of the mind unless the craving for alcohol has become involuntary (R v Tandy [1989]).

Substantial impairment of mental responsibility
There must be a "substantial" impairment of mental responsibility. Whether the impairment is "substantial" is defined either according to a common-sense standard or as "more than some trivial degree of impairment but less than total impairment" (R v Lloyd [1967]).

Provocation

This is morally distinguishable from diminished responsibility which recognises a reduction in culpability because the defendant does not have the capacity to choose whether to break the law or not. Provocation is an argument that the victim's behaviour makes the defendant’s failure to control himself less bad than it would otherwise have been. The argument is not that the victim’s behaviour affected the defendant's mental state so as to reduce or remove his capacity for self-control. Thus, the defence is available under common law where the accused was provoked to lose his self-control. Provocation can be caused by things done or things the accused heard or said himself. The jury then decides whether the provocation would have been sufficient to cause a reasonable man to lose his self-control. If so, the charge may be reduced from murder to voluntary manslaughter. The accused need adduce only prima facie evidence of provocation. It is then up to the prosecution to prove beyond reasonable doubt that the accused was not provoked. Two conditions must be satisfied:

  • Subjective condition. For the jury to find provocation, they must be satisfied that the accused was actually provoked and lost self-control (R v Duffy [1949]). This is a subjective test based solely on the actual effect the behaviour of the victim had on the accused.
  • Objective condition. The jury must also find that the reasonable person would have done as the defendant did (R v Duffy [1949]).


It is thus possible for a person to have been subjectively provoked but not objectively provoked (e.g. a particularly sensitive person) or to have been objectively provoked but not subjectively provoked (e.g. a particular insensitive person). It is also possible for the provocation to have been built up over a period of time, provided that the outburst is sudden and temporary (R v Ahluwalia [1992]).

Section 3 of the Act makes "the question whether the provocation was enough to make a reasonable man do as he did" the jury's responsibility. Previously this decision could be withdrawn from the jury by the judge.

The Law Commission recommends substantial revision to this defence in their Final Report on Partial Defences to Murder available at [230765].

Suicide pact

Parliament's intention in section 4 was to show some compassion for those who had been involved in a suicide pact but failed to die. The reason for the failure might be that the means adopted proved inadequate or the survivor's commitment was fragile. In either event, the trauma of involvement in such a pact was considered equivalent to a punishment and that the mandatory life sentence of murder was an inappropriate sentence for such defendants. Thus the Act provides that where the accused kills a person, or is party to a person being killed, while acting in accordance with a suicide pact, the charge will be reduced from murder to manslaughter. A 'suicide pact' is a common agreement between two or more persons providing for the death of all those persons (whether they should take their own lives or those of each other). It is a requirement of the defence that the accused herself/himself had a "settled intention of dying in pursuance of the pact". This is to avoid the accused entering into a supposed pact with the real intention of committing murder. The burden is on the accused to prove that she/he:
  1. was party to a suicide pact, and
  2. had a settled intention of dying.


Part II - Liability to the death penalty

Until the Homicide Act was passed the mandatory penalty for all adults convicted of murder was death by hanging. After decades of campaigning, abolitionists secured a partial victory with the Act, which limited the circumstances in which murderers could be executed, requiring mandatory life imprisonment in all other cases.

Section 5 - Capital murder

This section created a new offence of capital murder. A person was guilty of this offence if he committed murder in one of five situations:
  • Murder in the course or furtherance of theft; s.5(1)(a)
  • Murder by shooting or by causing an explosion; s.5(1)(b)
  • Murder in the course or for the purpose of resisting, avoiding or preventing a lawful arrest, or of effecting or assisting an escape or rescue from legal custody; s.5(1)(c)
  • Murder of a police officer acting in the execution of his duty, or of a person assisting a police officer so acting; s.5(1)(d)
  • Murder of a prison officer acting in the execution of his duty, or of a person assisting a prison officer so acting, by a person who was a prisoner at the time when he did or was a party to the murder; s.5(1)(e).


Forms of indictment for this offence were provided by S.I. 1957/699.

Section 6 - Death penalty for repeated murders

This section required the death penalty for anyone convicted of two murders committed on two separate occasions, provided both murders were committed in Great Britainmarker.

Section 7 - Abolition of the death penalty for other murders

All other murders were to be punished with mandatory life imprisonment.

Abolition of the death penalty

The death penalty for murder was suspended for five years in 1965, and permanently abolished in 1969 (though it still remained for treason until 1998). The last executions were in 1964. The penalty today is life imprisonment under the Murder Act 1965.

Part III - Form and execution of the death sentence in England and Wales

Death by hanging as per Home Office approved protocol.

Part IV - Application to, and special provisions for, Scotland

Part V - Commencement, etc.

See also



References

  1. The Homicide Act 1957, section 13(1)


External links




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