Memorandum submitted by Justice for Women (CJ 09)

Justice for Women

1. Justice for Women (JfW) is a feminist organisation established in 1990 with autonomous branches in West Yorkshire and London. Our primary concern as an organisation is with the failure of the law to deal effectively with men's violence towards women. We see this from two angles; firstly, the inadequacy of responses to the perpetrators of domestic violence which, at its most extreme, contributes to the murder of women, and secondly, from the perspective of those victims of domestic violence who retaliate, and are then disproportionately punished. We want to see an end to cases in which women who have suffered serious violence and thereafter killed their violent partner are convicted of murder and disproportionately punished. Despite the fact that women are much more likely to be the victim of spousal homicide rather than the perpetrator, women who kill their violent male partners or ex-partners are further victimised by a legal system that has been constructed, interpreted and implemented to fit men's experiences and men's homicidal responses.

2. Over the past 18 years JfW has been involved in numerous cases both at first instance and at appeal. We were involved in cases during the 1990s, which resulted in precedent changes to the law of provocation (including Thornton, Ahluwalia, Humphreys). We also submitted a third party intervention to the House of Lords to inform their deliberations in R v Morgan James Smith.

 

3. In 2004 JfW contributed to the Law Commission Consultation paper on Partial Defences to Murder. In 2006, we contributed to the Law Commission Consultation paper on Murder, Manslaughter and Infanticide and in 2008 we participated in the Ministry of Justice consultation process which has in turn produced relevant legislation in the bill now under consideration.

 

Why the introduction of 'fear of serious violence' would reduce miscarriages of justice

4. Over the past 20 years or so JfW has monitored, supported and campaigned around cases of women who have been convicted of murder after killing their violent partner. Many have suffered a history of serious abuse and violence; sometimes they have killed during the course of an attack on them, other times to pre-empt a further attack. Often these women have run self defence at trial, but the facts of their case do not easily meet all the requirements of that defence. In particular, perhaps they have used a knife when confronted with a fist and as a result the use of force may appear to be disproportionate to the threat faced; or have attacked at a time when the threat of violence may not appear imminent. In those circumstances these women may have been unable to avail themselves of the partial defences of provocation or diminished responsibility. Thus they are convicted of murder and sentenced to life imprisonment.

 

5. Case studies - we summarise two cases below by way of example where women who were convicted of murder may have been able to use this defence.

 

6. Joanne Cole was convicted of the murder of her partner Patrick Hemming on the 23^rd January 2001 and sentenced to life imprisonment. She suffered a childhood of severe abuse and neglect and was subjected to domestic violence (on occasions of a severe nature) in all her adult relationships. She fled Jamaica, escaping ghetto violence came to England in October 1999. Shortly after, Cole met the deceased, Patrick Hemming with whom she started a relationship. She describes Mr Hemming as controlling, possessive and occasionally violent. On the day of the offence there was an argument and Hemming started assaulting Cole throwing punches all over, there was a struggle in which Cole attempted to summon help and smashed a window in the living room. Hemming grabbed a knife and they struggled. During the course of the struggle Cole bit Hemming on the shoulder. Hemming dropped the knife Cole seized it and stabbed him once to the chest. The pathologist's report showed that the length of wound track of the single stab 'would appear to be superficial and approximately 5 cm in length'.

 

7. The jury rejected self defence and provocation and she was convicted of murder. The trial judge commented that "on the basis of my direction to the jury it would be possible for the jury to have convicted the defendant on the basis of excessive self defence or punishment".

 

8. Kirsty Scamp was convicted on the 23^rd February 2007 of the murder of her partner, Jason Bull. The jury took over four days to return a majority verdict (10:2). At the time of her conviction she was aged 21. At the date of the killing (13.06.06) she was aged 19.

 

10. Scamp was in a relationship with Bull for approximately three months. The deceased had mental health difficulties and drank to excess and used drugs which often led to him behaving violently. During the short length of time Scamp lived with the deceased there was a history of domestic violence which resulted in her sustaining injuries, including a perforated eardrum at the hands of the deceased. At the time of his death, Bull was on conditional bail in relation to this incident. There is contemporaneous evidence (including medical reports) of the history of violence.

 

11. Furthermore, there is evidence that Scamp had been exposed to domestic violence at the hands of her father and stepfather from a young age. She was also a witness to domestic violence against her mother and the family had lived in a women's refuge. Scamp was thus vulnerable, although resilient, and was employed in a care home at the time of the offence.

 

12. The circumstances of the offence itself are that the deceased had been drinking and using cocaine and had initiated an argument with Scamp. According to her evidence, which is supported by medical records to some extent, Bull attacked her, pulling her hair and punching her. During the struggle Scamp grabbed a knife and the deceased sustained a fatal wound to his chest from a single stab wound. Scamp immediately sought assistance and telephoned the emergency services.

 

13. Just before the trial the prosecution indicated that they would accept a plea to manslaughter on the basis that Scamp had acted in excessive self defence and that there was no intention to kill. She rejected this offer on the basis that she had acted in self defence.

 

 

The abolition of provocation and the removal of infidelity and other trivial circumstances that would cause a defendant to lose his or her self control:

 

14. The new wording set out in Clause 42 (4) represents a tightening of the previous law. It is saying the law will not reduce murder to manslaughter for trivial reasons. People should exercise self control and not kill out of anger. JfW certainly hopes that the words "of extremely grave character" will put an end to men getting away with killing their wives because she "nagged" or disagreed with him or because she was (or he believed she was) leaving him. In this country in the 21^st century no one owns anyone. No one has the right to kill someone for disobedience. Many men control their wives by saying "don't you dare ever leave me - I don't mind doing 7 years for you".

 

15. Why has sexual infidelity been singled out? Because currently killing one's wife or girlfriend for alleged or actual infidelity is seen as "classic provocation" and without it being specifically excluded, then it would be the first example given of "extremely grave character".

 

Case studies

16. Leslie Humes (2002), a Rotherham solicitor and his wife had split up. Their marriage had not been well for a long time. On the day he killed her, Humes had stayed awake the night before, and then returned to the marital home with a knife with which he stabbed his wife Madeleine numerous times - pursuing her through the house and stabbing so hard the knife went right through her body. Humes did this in front of the children who were screaming at him to stop. Humes later said he had found out that Madeleine had been sleeping with another man. He was not put on trial. Humes plea to manslaughter provocation was accepted by the judge and prosecution. He was sentenced to 7 years. This caused a local outcry and the Attorney General appealed the sentence. The Appeal Court confirmed the seven year sentence as appropriate. I asked the recorder of Sheffield why he had accepted the plea. He replied "because it was classic provocation. She was leaving him for another man. There was no point putting it to a jury. I would have been practically ordering them to give a verdict of manslaughter".

17. Paul Dalton (2005) punched his wife Tae Hue Kang shattering her jaw in 2 places, but rather than help her, left he to drown in her own blood. Dalton bought a chain saw, dismembered her body, put it in the freezer and said she had left home. At his trial Dalton said Hue Kang had taunted him.

Conviction: manslaughter provocation - 2 years in jail and 3 years for preventing the burial.

 

(No one ever asks men to prove taunts. Women are always asked for proof of violence)

 

18. David Cummergen (2002) strangled his wife Rosalind during a row over a holiday, but told police she drowned herself in a bowl of water. A post mortem revealed strangulation. At trial there was evidence that Rosalind was haunted by childhood abuse and developed a serious alchohol problem

Conviction: manslaughter provocation 2 years suspended sentence.

The trial judge commented that, " You put up with your wife's alcoholism for many years. She made your life a misery"

 

19. The proposed change to the law makes it clear to society that hurtful as it is if one's partner is unfaithful, or leaves one for someone else, this is not grounds to reduce murder to manslaughter.It is to be hoped that removing the term provocation and excluding sexual infidelity will also reduce assaults short of murder, as similar defences are often run to lessen the culpability of the offender.

 

20. In the UK we are rightly disturbed by countries which still execute people for "adultery". But we are in effect saying infidelity is a capital offence if we allow individuals to execute someone for it and not label this deed murder.

Loss of Control

 

21. JfW has concerns about "loss of self-control" being integral to the new proposed defence primarily because, the image it conjures up is one of an explosion in anger: it is less easy to associate with someone acting in an extreme state of fear. We consider that the loss of self control element that has been imported from the provocation defence has discriminated against women. Broadly speaking women, unlike men, do not tend to react to 'things done or said' in a rage in the heat of the moment but as a last resort in despair and fear. This can be as the result of suffering from a history of violence and abuse and the learned helplessness it induces, or because of the fact that men tend to be proportionately stronger. The fear of serious violence together with the comparative physical strength of men has meant that women who kill in circumstances of abuse do so in a way which is often perceived to be controlled.

 

22. If a woman kills an abusive man when he is not attacking her at the time, the courts have often concluded that her actions indicate some degree of controlled planning or pre-meditation. If the defendant does not say she "snapped" or does not appear to display behaviour associated with an anger outburst, then she is often not perceived as suffering from a "loss of control". [The Court of Appeal cases of Joanne Cole, Kiranjit Ahluwalia, Josephine Smith and Susan Shickle were all ones where despite the defendant suffering from fear of serious violence, the defence of provocation failed because there was 'no evidence of a loss of self control']. The problem is that in cases where an abused woman kills, the loss of self-control is not necessarily manifested physically. A person out of control as a result of 'cumulative provocation' may well act in a physically controlled way. The loss of self control is a loss of psychological and/or emotional control.

 

23. If the concept of a requirement for the loss of self-control is to be retained in the Bill, then we suggest that it is essential that it is clearly defined to reflect the above.

 

24. At the time that the Ministry of Justice Review Team considered this issue it indicated that if there is no requirement for a loss of self-control on the part of the defendant "...there is a risk of the partial defence being used inappropriately, for example in cold-blooded, gang-related or 'honour killings'..".

 

25. However, the Law Commission thought that it was undesirable to express the necessary subjective condition of the defendant as being one in which she suffered from a "loss of self-control" and instead suggested that the necessary mental state for the new defence should be expressed negatively by stating that:

The partial defence should not apply where:

(a) the provocation was incited by the defendant for the purpose of providing for an excuse to use violence; or

(b) the defendant acted in considered desire for revenge.

 

26. In fact the Coroners and Justice Bill contains these specific exclusions in any event

 

27. However, if it is thought necessary to maintain the requirement for loss of self-control, then we recognise that the Bill attempts to accommodate abused women who kill by stating at clause 41(2) that:

 

"For the purpose of subsection 1(a), it does not matter whether or not the loss of control was sudden".

 

28. We note, however, that the Bill does not require the loss of control to be "sudden" - as in provocation, This means that there can be a time delay between the qualifying trigger and the killing. It therefore helps to displace the perception that abused women who kill but not in circumstances of rage/heat of the moment are not out of control and therefore don't qualify. However, JfW is concerned that if loss of control is a requirement for the defence, then there will be deserving cases which may not succeed with this defence.

 

Some Frequently Asked Questions:

 

29. Will this reform be a licence to abused women who kill?

 

No. It does not allow them to get away with killing. If a woman successfully relies on the new defence, she will be guilty of manslaughter. The judge can still impose a life-sentence depending on the facts of any individual case.

 

30. Why don't you simply abolish the mandatory life sentence then each case could be considered on it's own facts and sentenced accordingly?

 

Because that is a distinct issue. In any event, murder ought to be properly labelled as such and merit a life-sentence.

 

31. Won't the defence allow honour killings?

 

No. First, the type of events/circumstances which lead to 'honour killings' such as infidelity or refusal to enter arranged marriages etc cannot be said to amount to things done or said which:

(a) constitute[ed] circumstances of an extremely grave character and

(b) cause[d] D to have a justifiable sense of being seriously wronged.

Second, sexual infidelity is to be disregarded.

Third, honour killings are the paradigm revenge killings and clause 41(4) specifically precludes revenge killings from the ambit of the defence.

 

32. Isn't this creating a gendered law?

 

No, it is redressing an imbalance in the present law. Provocation was based on a 300 year old defence to killing in a fit of anger. As women rarely kill in a fit of anger in the heat of the moment they tend not to be able to rely on it. If a woman kills in order to protect herself from further violence, she may not have a defence to murder (under the present law of provocation, diminished responsibility or self-defence). Life imprisonment is a disproportionate punishment and the label "murderer" does not reflect her (lack of) culpability. If her male partner kills in a sudden rage on the other hand, then he has a partial defence. The Bill aims to redress this.

 

65% of all women murdered in England and Wales in 2006/07 died at the hands of their 'partner, ex-partner or lover', compared to just 11% of men. A history of male violence is almost always the context for such killings - typically when a woman kills a male partner or ex-partner this is preceded by sometimes years of domestic violence suffered at his hands, and when a man kills a woman in the context of a current or former intimate relationship this is often the culmination of his repeated violence against her.

 

33. If a defendant states she fears serious violence, why didn't she just leave the relationship?

 

Most women who are killed by partners are killed as they plan to leave, leaving or shortly after leaving. Men make threats all the time. Josephine Smith left her violent husband but he tracked her down. It is even easier to do so if the separated couple have children together, as in the not uncommon threat, "If you ever leave me again I will kill the children". Threats to kill women if they leave are common place. So fear is a major reason, besides which leaving a violent man does not end the violence. Most stalkers are ex partners. Leaving a violent man means losing touch with all your friends and family. Newton who killed his wife in Doncaster refuge was able to do that by bribing a BT employee to get the address but also because she had kept in touch with her sister. Men use occasional violence as part of power and control of partners but they also use other means: mental control, financial control and in some cases occasional indulgences. As one woman said, "I find it hard to think because he even controlled what I thought." In such a state planning is difficult. Finally, yes, some women stay with violent men because they still love them.

 

February 2009