Provocation, Abnormality of mind, Murder

'The Throwing of the Ashtray'

In relation to the position of Ivor the presence of the mens rea and actus reus in relation to a charge of murder and GBH are in essence the same as in the case of Harold, and need not be repeated here. It only need be said in addition that the refusal of treatment by Anthony will not break the chain of causation , see R v Blaue above.

Based on the discussion above as to the situation of Harold it is likely that Ivor will be charged with murder. There are two likely defences would be that of provocation and diminished responsibility.

Provocation under section 3 of the Homicide Act states "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or said or by both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which in their opinion it would have on a reasonable man."

Since the case of R v Smith (Morgan)1 the once objective test can know take on certain subjective characteristics of the defendant. In the case of Smith in itself it was held that Smith suffering from depression could rely on the defence of provocation. Thus this departs from previous cases where only gender and sex could be taken into account. 2 So the test is if a reasonable man in the position of Ivor with his depression would have acted as he did the defence will be successful.

As regards diminished responsibility Section 2 of the Homicide Act provides that where a person kills and is suffering from such an abnormality of the mind that impaired his mental responsibility for his acts he shall not be guilty of murder. R v Seers 3 shows how the abnormality does not have to equate to madness, here depression was held to be an abnormality of the mind. The burden of proof will be on the defence and on the balance of probabilities. However the abnormality must be any inherent cause, disease or injury or arrested or retarded development of the mind. Thus in the case of R v Gittens 4 the behaviour of the accused, suffering from depression, but who had been drinking and taking drugs, had to be analysed by the jury to assess whether or not it was caused by the inherent depression or the external substances. If it was the latter that the defence of diminished responsibility would not apply. If the defence is raised successfully then Ivor will be guilty of voluntary manslaughter, not murder.

[2000] 4 All ER 289[^ Return]
DPP v Camplin and R v Newell (1980) 71 Cr App R 331[^ Return]
[1985] Crim Lr 315[^ Return]
[1984] QB 698 CA[^ Return]