Defending killing

April 2007 saw the release of the film Provoked which tells the true story of Kiranjit Ahluwalia who was jailed for life in 1989 for the murder of her husband. Ahluwalia is portrayed by Bollywood actress Aishwarya Rai with supporting roles taken by the likes of Miranda Richardson and Robbie Coltrane.

Ahluwalia's conviction was quashed by the Court of Appeal in 1992 and a retrial ordered. At the retrial she was found guilty of manslaughter on the grounds of diminished responsibility. The judge imposed a prison sentence which matched exactly the time she had already spent in custody, resulting in her immediate release from prison. Much of the media comment has portrayed this case as a landmark judgment in which the law adopted a more merciful approach to battered women who kill their violent partners. Sadly, this is misleading. In fact, a recent Privy Council decision has made the position of women like Mrs Ahluwalia more difficult.

Mrs Ahluwalia was subjected to violence at the hands of her husband throughout her marriage. Although she did not give evidence at her trial, she gave the following account of the killing to the police. On the evening of 8 May 1989, Mr Ahluwalia told his wife that he was leaving her for another woman. During the ensuing conversation, he threatened to burn her face with a hot iron. He also threatened to beat her up the next morning if she did not give him £200. In the early hours of the following morning, Mrs Ahluwalia doused her sleeping husband in petrol and set him alight. She subsequently told police that she did not intend to kill him, but only to give him pain. Mr Ahluwalia survived for a few days, dying eventually on 15 May.

Mrs Ahluwalia was subsequently charged with his murder. She pleaded not guilty on the ground that she had not intended to kill her husband or cause him serious harm. Alternatively, she relied on the defence of provocation. On 7 December 1989, she was convicted of murder. Her appeal against conviction was heard by the Court of Appeal in July 1992. Three grounds of appeal were raised on her behalf. The successful ground related to the defence of diminished responsibility. The other two grounds related to the trial judge's direction to the jury on the defence of provocation.

Ground for appeal

Let us deal firstly with the successful ground of appeal. Mrs Ahluwalia's legal team put before the Court of Appeal a number of psychiatric reports which expressed the opinion that, at the time of the killing, the appellant's mental responsibility for her actions was diminished within the meaning of the Homicide Act 1957.

The Court of Appeal concluded that there was, therefore, an arguable defence which was not put forward at her trial. On that ground alone, the Court of Appeal quashed her conviction and ordered a retrial.

As far as provocation was concerned, the first ground of appeal related to the subjective question, in respect of which the trial judge gave the following direction as approved by the Court of Appeal in R v Duffy [1949] 1 All E R 932:

'Provocation is some act, or series of acts done (or words spoken)'¦ 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 a passion as to make him or her for the moment not master of his or her mind.'

Mrs Ahluwalia's legal team presented expert evidence to the effect that women who have been subjected frequently over a period to violent treatment may react by way of a 'slow burn' reaction rather than by an immediate loss of self-control. Accordingly, they argued that the Duffy direction was wrong insofar as it related to appellants like Mrs Ahluwalia. The Court of Appeal rejected this argument.

The second ground of appeal concerned the objective question i.e. whether the provocation was enough to make the reasonable man do as the defendant did. In DPP v Camplin (1978) 67 Cr App R 14, Lord Diplock said:

'[The judge] should then explain to [the jury] that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him.'

Mrs Ahluwalia's legal team argued that she was suffering from 'battered woman syndrome', a relevant characteristic to which the trial judge should have referred when directing the jury on the objective question. The Court of Appeal rejected this argument on the ground that there was no evidence before the trial judge to suggest that the appellant was suffering from any such syndrome. They accepted that, had such evidence been available to the trial judge, 'different considerations may have applied'. The question of whether characteristics affecting a person's powers of self-control can be taken into account was, therefore, left open. In R v Smith (Morgan James) [2000] 4 All ER 289, the House of Lords answered that question in the affirmative. However, in Attorney General for Jersey v Holley [2005] 3 All E R 371, the Privy Council came to a different conclusion. The appellant was suffering from alcoholism (which reduced his powers of self-control) at the time he killed his girlfriend. The trial judge failed to mention this characteristic when he directed the jury on the defence of provocation. According to Smith, this omission amounted to a misdirection. Lord Nicholls, putting forward the view of the majority, said:

'This majority view [in Smith], if their Lordships may respectfully say so, is one model which could be adopted in framing a law relating to provocation. But their Lordships consider there is one compelling, overriding reason why this view cannot be regarded as an accurate statement of English law. It is this. The law of homicide is a highly sensitive and highly controversial area of the criminal law. In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. In these circumstances it is not open to judges now to change ['develop'] the common law and thereby depart from the law as declared by Parliament. However much the contrary is asserted, the majority view does represent a departure from the law as declared in section 3 of the Homicide Act 1957. It involves a significant relaxation of the uniform, objective standard adopted by Parliament.'

The Court of Appeal has subsequently followed Holley rather than Smith (see R v Karimi [2006] 2 WLR 887).

The door which was opened slightly in Ahluwalia and thrown open in Smith has, therefore, been slammed shut in Holley. This inevitably means that women like Mrs Ahluwalia who kill violent partners will, in future, find it difficult to successfully rely on the defence of provocation. That will not matter where, as in Mrs Ahluwalia's case, there is psychiatric evidence supporting a plea of diminished responsibility. However, where such evidence is lacking, the result will be a murder conviction and the mandatory life sentence. As section 2 of the Homicide Act 1957 puts the burden of proof on the defendant, the same result is likely to follow where the expert evidence of the defence and the prosecution are in conflict. Many will feel that this is unjust.

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