The following Document was first published in 1980 by the eminent Jamaican Jurist Delroy Chuck who has kindly given his permission for it to be published and used as a discussion document in the debate over Capital Punishment.
It is an idea document for 6th form studies in schools as
there are discussion topic and questions at the end of each chapter.
Click here to Download this 76 page document as a WORD file.
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Should We Hang?
DELROY H. CHUCK
Lecturer in Law & Criminology
University of the West Indies
If .we are to be sincere in our efforts to reduce violence, there is one type
of violence that we can with complete certainty eliminate. That is the killing
of criminals by the state. The question is, will people learnto respect life
better by threat or by example? And the uniform answer of history,
comparative studies and experience is that man is an emulative animal.
- Professor Morris and Hawkins, The Honest Politicians Guide to Crime
Control.
Bridgetown, Barbados
1980
Contents
Preface
Introduction - R.M. Castagne .
1. The Crime of Murder .
2. Where Death is Due to Neglect ...
3. The Plea of Insanity
4. The defence of Provocation ..
5. The Behaviour of the Reasonable Man ..
6. The Use of Excessive Force .
7. To Kill or To Die ..
8. Kill or Be Killed .
9. The Desire to Kill .
10. The Search for the Killer .
11. The Question of Capital Punishment ..
12. Is Hanging Really a Deterrent? .
13. The Sanctity of Life .
14. The Image of the Dangerous Killer .
15. Punishing the Innocent .
16. For Whom the Hangman Waits ..
17. Last Days of the Condemned ..
18. Hanged by the Neck ..-
19. Alternative to Execution
20. Postscript .
Preface
While writing a series of articles for the Barbados Advocate News in 1979, 1 was encouraged and persuaded by several persons to put them into a booklet. This book is the first collection of 19 articles on the subject of Murder and Capital Punishment.
The articles have been modified and rewritten in some cases for this publication. Questions and further references have been added at the end of each article to encourage discussion and further study by groups in the society. I also hope that the book will find a place in the sixth form classes where students are preparing for the General Paper and where, I know, there is a general interest in crime and punishment.
The author would like to extend special thanks to Mr. Michael Castagne who read and helpfully commented on the articles. Mr. Castagne also kindly agreed to write the introduction.
My thanks are also due to the secretaries of the Faculty of Law, U.W.I., CADEC, and most importantly to the Research and Publication Funds Committee of the University of the West Indies which generously agreed to underwrite publication costs.
Delroy H. Chuck
July 1980
INTRODUCTION
Until very recently, we in the Caribbean have taken for granted that persons convicted
of murder should be put to death. It seems credible that, up until now, our societies have accepted without question the 'right' of the State to deliberately terminate human life as a penalty for certain crimes: incredible because the imposion of the death penalty is an extreme measure ‑ the ultimate penalty. One would expect that such an extreme penalty would only find a place in our legal system after careful consideration, and for compelling reasons.
Alas, this has not been the case. It does not take much to realise that the death penalty was inherited, along with the British system of justice, from our colonial forefathers. Not that the death penalty is unique to that system. Indeed, the vast majority of countries throughout the world retain the death penalty for certain offences. In many of these, death is imposed for many more crimes and much more frequently than in the Caribbean territories. It is probably true that the death penalty was inherited by most, if not all, legal systems; that it existed from the beginning of time; that it has been handed down from generation to generation, and that it has been taken for granted by mankind generally. But this alone is no justification for its continuance. For slavery, too, existed from time immemorial and was accepted as a fact of life up until relatively recent times. The death penalty cannot be justified purely on the basis that it exists, and has always existed.
The death penalty is literally a matter of life and death. All would agree that it is an extreme measure, in that it involves the deliberate taking of human life. Our respect for human life would demand, therefore, that we examine the reasons for its use, the purpose it is meant to serve, the existence or non‑existence of adequate alternatives, the arguments against its use, and whether compelling reasons exist for its retention. In short, the time has come for us to ask ourselves the question, 'Should we hang?'
Ultimately, whether or not capital punishnient is abolished is a matter for the decision makers. The opinion of the 'man in the street' and of major groups in the societies ‑ trade unions, churches, youth groups, charitable organisations, professional groups, etc, - will inevitably influence , if in fact they do not determine, the final outcome. Thus, the opinion of all wishing to express it, is important.
To hang or not to hang is, however, an issue charged with emotion. But because it is a life or death question, we have a moral obligation to ourselves, our societies and to the condemned not to allow our passion to be the sole determinant of our conclusion. We should, at least, temper our emotion with reason. We should at least consider the issues and evidence before we arrive at a final, unshakeable verdict.
Mr. Delroy Chuck's excellent articles allow the reader to do just that. They raise and discuss all aspects of the question in simple, non‑technical language. They challenge the reader with fundamental and searching questions placed at the end of each article. They invite the reader, by means of selected further readings, to examine and explore other publications with a view to formulating an opinion based on fact and reason, rather than on instinct and emotion. The region's leaders and decision makers, in particular, have an obligation to carefully consider the issues raised here before deciding 'aye' or 'nay' to capital punishment.
The issue has already come up for governmental consideration in several Caribbean jurisdictions. It has been referred to parliamentary committees in Barbados, Trinidad, Bermuda, and Jamaica. In Trinidad and Bermuda the committees have already made their recommendations. However, to date, only Jamaica and Bermuda have put the matter to an open vote in Parliament.
Capital punishment is also coming under critical reassessment at the international level. In April the Parliamentary Assembly of the Council of Europe voted 98 to 25 to recommend that the death penalty be abolished in all member states. The U.K. Parliament had earlier decided, by a 20% majority, not to reintroduce capital punishment for murder. At the present time, the issue is being hotly debated in the United States and Amnesty International, the human rights organisation, has called upon President Carter to establish a Presidential Commission to look into the question. The United Nations, itself, is to examine the issue at its Sixth Congress on the Prevention of Crime and Treatment of Offenders, due to take place in Caracas, Venezuela, from 25 August to 5 September. A resolution is expected to come before the General Assembly before the end of the year.
At the present time, separate campaigns seeking abolition of the the death penalty are being waged in Jamaica, Barbados, and Trinidad. Amnesty International has been in the vanguard of the Barbados campaign, through its local group, and has been very supportive of efforts in the other two islands. In Amnesty's view the death penalty constitutes a cruel, inhuman, and degrading punishment, is irreversible, capable of being inflicted on the innocent, has never been shown to have a special deterrent effect, and is a violation of right to life provisions found in the Universal Declaration of Human Rights and other international instruments. That is one view. What is yours? But, before you answer ‑ read on ....
R. Michael Castagne, Chairrman, Amnesty International (Barbados)
Lecturer (Human Rights)
U.W.l. Cave Hill, Barbados
I. THE CRIME OF MURDER
From the beginning of time men have killed one another and they will continue to do so until the end of time. The biblical admonition, 'Thou shall not kill'., will remain a guiding light, but it can hardly be complied with. The underlying reasons why people kill one another are manifold and because of factors such as ungovernable passion, financial motives, criminal intent, etc. which frequently exercise a determining influence on the heart and mind of ordinary people, it can be stated without reservation that killings will continue to be a part of the affairs of men.
Not all killings are murder. Some killings are actually deemed necessary and salutary. The reasons fcr such killings are usually abstract and perhaps debatable. In tirnes of war, it is considered necessary to kill the enemy. It does not matter how hideous the methods that are used to accomplish. the deed. Whether we use atomic bombs to wipe out large segments of innocent people who may not even be involved in the fighting, or napalm bombs to ravage, scorch and maim, or neutron bombs, which kill people but leave buildings intact, we are still taking lives and justifying our actions. In peacetime, the hangman may be required to effect a judicial hanging. In America, murderers are put in an electric chair and roasted. In many other countries, criminals are exterminated by the firing squad. At any time, society permits a citizen to kill if he has to defend his life or that of any member of his family. The defence of self‑defence completely absolves where it succeeds. These examples show how another human life can be taken without the possibility of judicial punishment. The intention to kill exists, even though the desire to do so may not. Nonetheless, these are killings which are excusable and are not considered criminal.
The classical definition of murder is that given by Sir Edward Coke over three centuries ago. He says
Murder is when a man of sound memory, and of the age of discretion, unlawfully killeth within any
country of the realm any reasonable creature . . , under the king's peace, with malice afore‑thought,
either expressed by the party or implied by law, so as the party wounded, or hurt, etc. die of the wound,
or hurt, etc. within a year and a day after the same.
A person will therefore be found guilty of murder if he intends to kill and does so. He must have the mental state and he must be responsible for the act which caused death.
A person may intend to kill another and does everything to effect that intention but is still not responsible for the crime. Intending to kill him, Mary may give her husband John poison, but if dies of a heart attack before the poison takes effect she will not guilty of murder. If the poison was not responsible for John's heart attack then Mary's action does not contribute to his death. Similarly, if Tom fires a number of shots at Peter, who lies motionless on his bed, he will not be guilty of murder if Peter is already dead. In both these cases, it is quite clear that Mary and Tom intend to kill but they cannot be found guilty of murder as the law would be punishing a man's criminal intention and not his deed. The crime of murder is a combination of both.
On the other hand, if a man fires and kills what appears to be a monkey, but if it is in fact a human being, then he is not guilty of murder since he intends to kill a monkey, and not a human being. He clearly does not have the criminal intention to kill another human being. He has made a mistake. He will naturally have to show that his mistake was genuine and reasonable, and his evidence must be acceptable to the jury.
What is not known to the layman, however, is that it is possible be guilty of murder even though the accused did not intend to kill. A secondary mental state which makes the accused guilty of murder is the intention to cause grievous bodily harm. Grievous bodily harm is defined as really serious injury. An accused who stabs his victim during a fight may not intend to kill, but if the latter dies from the wound he will be guilty of murder. In a Trinidadian case, the accused, George Mitchell, a 63‑year‑old man, went to a nearby restaurant to collect bones for his dog. While in the restaurant, a customer objected to Mitchell's presence and function. Subsequently, a fight developed. Mitchell alleged that he was being strangled when he remembered that he had a penknife in his pocket. He fetched it and stabbed the accused several times. The reason for the stabbing, according to Mitchell, was to make a let go. The wounds were severe, however, and the customer died. Mitchell was found guilty of murder.
There is no doubt that Mitchell, and many other offenders in similar circumstances, intend to cause grievous bodily harm. They want to wound the victim for various reasons. In Mitchell's case it was to avoid his strangulation but he was, like others, unable to prove self-defence. In fact, the victims may have started the fight or quarrel. Most of these offenders will immediately admit to wounding, but they will forcefully argue that they did not intend to kill. The common law nevertheless incorporates the intent to cause grievous bodily harm as an element in the crime of murder.
Significantly, it is also possible to be found guilty of murder even though the convicted person neither had the intention to kill nor actually killed. An example will illustrate. Two gunmen, John and Michael, intend to rob a bank. They agree that no one should get hurt. Nonetheless, during the robbery a scuffle breaks out and John fatally shoots the guard and two customers. Michael, theoretically, is not an accomplice to murder. But, practically, in the courtroom, it is almost impossible to prove and to convince any jury that he is not an accomplice. Why did he carry a gun if he did not intend to use it? Is it not possible that there might be circumstances in which he would shoot just as John did? ‑ and several similar questions which point to his conviction as an accomplice to murder. The author knows of several accomplices on deathrow in Jamaica who did not kill. They were charged and convicted as accomplices to murder. In some circumstances, it is likely that their conviction was due to the fact that they were seen in the company of killers!
QUESTIONS
1. Should a person who is convicted of attempted murder, or as an accomplice to murder, be given the same punishment as one found guilty of murder?
2. A man may be found guilty of murder even though he does not intend to kill. The law emphasises that a) the intention to cause grievous bodily harm, b) killing during the commission of a felony, and c) where the reasonable man would have foreseen that death would result, are each a sufficient mental state of guilt.
‑Should the penalty be the same in all instances?
‑Do you think that the crime of murder should be restricted to cases in
which the offender has an intent to kill and not be applicable where secondary reasons prevail?
Further References
1. G. Williams, Textbook of Criminal Law (Stevens, 1979), Chapter 9.
2. Smith and Hogan, Criminal Law, 4th ed. (Butterworths, 1979), Chapter 11.
2. WHERE DEATH IS DUE TO NEGLECT
The victim of a serious injury may contribute to his eventual death. This may occur in cases in which the victim refuses proper medical attention. An example is the familiar case of Jehovah witnesses refusing blood transfusion.
Let us consider a case in which a Jehovah Witness is seriously Injured during a robbery. A knife is used and the victim's lung is pierced. The doctor seeks permission to give a blood transfusion to properly operate. Permission is refused. The doctor nevertheless operates, but because of loss of blood the victim dies.
This case is not unique. It is, in fact, a typical case of people, because of their religious faith, preferring to die rather than to submit to a blood transfusion. The propriety of their belief is not our concern. But their belief has caused many people to be convicted for a graver crime than they normally should be.
In a decided case in England,, a young man, during a quarrel with girlfriend, hit her with an implement which caused internal injuries. She was unconscious, and the doctors sought her parents' permission to operate, using blood transfusion. They refused. She died. Her boyfriend was found guilty of manslaughter and senced to life imprisonment. If the boyfriend had had the intention to cause grievous bodily harm, he would have been guilty of murder.
The doctors, in evidence, submitted that her life could have been saved if permission was granted for blood transfusion. If she lived, it is likely that the young man would have been charged for unlawful wounding, and sentenced to probation. Because of the parents' action, his crime was aggravated and his punishment magnified.
People who engage in crime must nevertneless bear the consences. They take their victims as they find them. There is no obligation on the victim to ameliorate his situation or to seek the best medical attention. As long as the initial injury caused by the accused is the operating cause at the victim's death, then the accused is guilty of murder.
In a well known English case, which exemplifies the operation of a law still in effect in the West Indies, a soldier was bayoneted during a fight between two platoons. The bayonet caused severe internal rupture. During his journey to the hospital, two of his comrades who were taking him felll several times and aggravated the injuries.
On arrival at the hospital, the doctor, after a cursory examination, did not deem the injury serious, and refused prompt attention. When medical attention was ultimately obtained, the injury was discovered to be more serious than was originally realised. Profuse internal bleeding had ensued. The patient died. If prompt medical attention had been given the patient would have lived. The soldier responsible for the injury was found guilty of murder. The death originated from his action and, thus, he is criminally responsible for it.
Even though the injury was aggravated during the journey to the hospital and the delayed medical attention of the attending doctor at the hospital contributed to the death of the injured soldier, they were not defences or mitigating factors in the charge of murder.
Consider another case. A wife who is thoroughly fed up with her husband decides to put poison in his dinner. He usually eats late at night, very often after she has gone to bed. On this fateful night, the husband does not eat his meal. Alas, a greedy burglar ate the poisoned dinner and died during the early hours of the morning.
The wife, on awaking, rushes to the kitchen to see if her husband had eaten the meal. It is gone. Now, her thoughts are clear and she does not really want to kill her husband any more, so she confesses to him, and begs him to see the doctor immediately. She hears that he did not eat it, and she is much relieved. On opening the door, however, they discover the dead burglar. The wife did not intend that result. She is nevertheless guilty of murder. At the time the burglar ate the meal the wife had an intention to kill a human being. Through her husband's neglect, the burglar was poisoned, and she is deemed to have transferred her malice to the burglar.
The examples discussed in this article are actual cases which show how an offender may be found guilty of murder. They should be borne in mind as we shall lead up shortly to a discussion of capital punishment.
QUESTIONS
1. Should the offender be found gudty of murder in cases in which the neglect of the victim and the poor medical attention given contributed to the victim's death
2. In the example given in the text of the wife who intended to poison her husband but poisoned the burglar instead, should the wife be found guilty of murder?
Furher References
1. G. Williams, op. cit, Chapter 10.
2. Smith and Hogan, op. cit., Chapter 11.
3 THE PLEA OF INSANITY
The recent Barbadian case in which 20‑year‑old Lennox Randolph Campbell was convicted for the murder of Joyce Crichlow, has brought into focus the significance of insanity in crime and the criminal law. Anyone who has followed the case closely will discern a disparity between insanity in the medical sense and as understood legally. The fact that distinguished doctors qualified in the field of psychiatry attest that the accused was insane, seems to have had very little bearing on the final decision of the jury.
That the accused was the culprit responsible for the gruesome killing was not denied; indeed, it was conceded by the defence. But, the defence sought to show that the accused was insane at the time he committed the act. His actions, responses, and psychopathic behaviour could not therefore be judged as if he were a normal person.
The facts of the case are that the deceased was decapitated and her head was further hacked into several pieces; other details are too ghastly to mention. She was discovered when firemen were summoned to her house to extinguish a fire. Shortly after, the accused was charged and he was alleged to say at the time of arrest that 'Joyce attack I wid a cutlass en I tek de cutlass from she en it drop, en I tek it up en I see she head was evil and I cut if off en I cut it up wid the cutlass. It did de evil beast so I had to do it. I den went back to loaka (Bellamy) en burn up me clothes. De head look normal to I. Everything I see evil I chop it up de same place'.
The alleged confession of the accused is certainly not indicative of a rational thinking person. His thought processes are obviously impaired. Further, there is evidence which points to his aggressiveness ‑ six policemen were required to subdue him. With all this evidence, why did the plea on insanity, and diminished resppnsibility, fail in Court? There are many reasons!
Insanity and the Law
Fundamentally, the law governing the defence of insanity is archaic, narrow, and inapplicable to modern conditions. It is one of the most difficult defences to establish at a criminal trial, and the
deficiencies in the present rules are probably responsible for sending many madmen to the gallows, rather than to an asylum.
Insanity is a peculiar disease from which many people suffer to a certain degree. Indeed, not all madmen are in the psychiatric wards. There are many of our associates ‑with whom we deal daily -who suffer from mental illnesses. The nature of their sickness is such that it can be dealt with by taking drugs. When such a person fails to take his medicine, however, his actions can become quite aggressive and irrational.
Very few madmen are completely unable to function rationally. Those who fall into this category are probably suffering from physical defects of the brain which impair its proper functioning. The majority of madmen are persons who suffer from emotional maladies which cause an impairment of certain mental faculties and produce a defect in reason. The latter category can often be treated in order to prevent violent outbursts.
From the medical point of view, persons from either category can be described as insane. Doctors relentlessly try to point out that these persons cannot be held responsible for all their actions. Aberrant behaviour is often quite involuntary, and even though he thinks that it is wrong, the insane person finds the impulse irresistible. Medically then, they are insane; but too frequently, they are legally sane.
The legal requirement for insanity to be established is a preposterous one. It is derived from a decision in 1843, and inspired by the circurnstances of a celebrated case, and the medical doctrines of the period.
Daniel M'Naghten was a paranoiac who felt he was being persecuted by many people. His chief persecutor, he told his father and other public authorities, was the presiding Prime Minister, Sir Robert Peel. He was determined to assassinate Sir Robert. On the occasion on which the assassination was to be attempted the Prime Minister chose to ride in a different carriage. His private secretary, Edward Drummond, was less fortunate however, because he rode in the carriage originally earmarked for Sir Robert, and was killed in his place.
M'Naghten was tried, held to be of unsound mind, and sent to a lunatic ayslym. But such a verdict brought about the rebuke and indignation of many important people. They were incensed, to say the least, that the hangman should be denied such persons as were evidently aware of what they were doing. The highest tribunal, the House of Lords, was summoned and implored to make a ruling on the subject of insanity.
The M'Naghten rules were devised, and the fact that their creation was stimulated by the indignation of the authorities cannot be ignored, or taken lightly. These rules state that an accused is insane if at the time he committed the act he was 'labouring under such a defect of reason as not to know the nature and quality of the act he was doing; or if he did it, he did not know that what he was doing was wrong'.
Notwithstanding repeated and distinguished criticisms of these rules, by doctors and lawyers alike, they still subsist up to the present time to haunt juries, counsels, and, more poignantly, madmen who have sat in the docks. Lord Coleridge, the distinguished Lord Chief Justice of England, in 1888 said
The judicial decisions on questions of insanity are bound by an old authority which,
by the law of modem science [emphasis. added, ed.], is altogether unsound and wrong.
That was in 1888. It is now 1980, and science has certainly advanced immeasurably during the last ninety years. Lord Brougham, an illustrious Law Lord, said at the time the rules were being established, that
Nobody is hardly ever really mad enough to be within the definition of madness laid
down in the judges' answers.
It should be further noted that the MNaghten rules were made in an era dominated by the long discredited doctrine of phrenology. (See my column, UNDERSTANDING CRIME, in which 1 discussed 'Organs of the Mind', Barbados Advocate‑News, April 30, 1979). Phrenology postulated that the mind was made up of faculties and divided into different compartments; a person, phrenology claims, could be insane in one compartment but sane in others. Such cornpartmentalisation has been utterly rejected, however, and it is now universally recognised that the mind is whole and indivisible. Any meptal disorder, from whichever region of the brain, is likely to have its reverberations on other parts of it.
Serious criticisms can further be made of the different aspects of the rules, but to undertake such a task in this article would make it unduly abstruse. Nevertheless, it should be pointed out that the rules require that the person should have been insane at the time when he committed the act.
This requirement can have serious difficulties.
The Trial
The jury may be observing a sane man sitting in the docks. He can reason and seems quite normal, so the jurors argue 'Who is he trying to fool? But the existence of sanity at the time of trial does not mean the presence of a sound mind at the time of the commission of the crime. Persons who suffer from temporary insanity because of an epileptic fit, a stroke, fainting, depression, etc., are usually quite normal, but in that single, unfortunate moment when they 'black out' they may indulge in violent actions which they later regret, and even forget. To ask the jury, as ordinary laymen, to reflect objectively on the evidence, when before them in the docks is a person who appears normal, is highly optimistic.
It was earlier stated that many persons are sane only when they are on prescribed drugs. In the courtroom this may be the case. But, when the act was committed they may not have been rational, thinking persons. Their appreciation of the nature and quality of the act may have been severely impaired by the emotional turbulence to which they are prey. It is submitted that to fully comprehend the significance of this state of affairs we need to appeal to the psychiatrists who are trained in this area. When, therefore, they say that a man is insane we ought to give their opinion some credence and weight.
The doctor in the case of Lennox Campbell said that the accused was insane. His emotional state was flat and blunted. The doctor further said that it was his opinion that 'the accused could have been suffering from a disease of the mind in that his mental faculties were impaired . . . it was possible that when the accused did the act, he did not know the nature and quality of the action . . .' He was of the opinion that 'the accused was insane at the time of the alleged incident'. The jury undoubtedly rejected the psychiatrist's testimony, that of the prison doctor, and other evidence which favours a verdict of guilty, but insane. Their verdict was, 'Guilty of murder'. Whether or not they are correct is for a Court of Appeal to determine and an assessment of their verdict is outside the province of this discussion.*
*Campbell's death sentence was overturned on appeal, and he was committed to an asylum for the insane.
Nevertheless, it should be noted that juries are often influenced by public opinion. The more heinous the crime, the more likely it is that they will reject the plea of insanity. The killer, they reason, ought to be punished and the gallows is the only definitive way to denounce his actions. David Berkowiktz, of Son of Sam fame, is an example of an obviously insane person who was probably convicted because of popular pressure. The notorious nature of his actions in killing young girls under the influence of Sam were too horrible to condone.
The above arguments must not be interpreted to mean murders are not intolerable and their perpetrators do not deserve punishment. Of course they do. However, a madman is mentally incapacitated. His actions are not vluntary and rational. To punish him rarely deters similar actions by similar individuals. These people need medical treatment and should be dealt with accordingly. The deep indignation which we feel when a ghastly murder is committed should not prevent us from appreciating that some murderers are undeniably insane. To punish them may satisfy our instinct for revenge but it says very little for our humanity.
The Royal Commission on Capital Punishment in England in 1953 recommended the abolition of the MNaughten rules. Their submission was not accepted. Nevertheless, the legislature enacted a defence known as diminished responsibility, to temper the rigidity of the rules. This has been adopted in Barbados. It states that
when a person kills or is a party to the killing of another, he shall not be convicted of murder
if he was suffering from such abnormality of mind (whether arising from a condition of arrested
or retarded development of mind or any inherent causes or incuced by disease or injury) as
substantially impaired his mental responsibility for his acts and omissions in doing or being a party
to the killing
This defence was also argued in Lennox Campbells case, and was rejected. The basis of the defence is that the person is suffering from an abnormality of mind which impairs his reason. He may therefore be aware of the nature and quality of his actions but because of irresistible impulse, say, he is unable to control his actions. If the defence is accepted it reduces the crime from murder to manslaughter.
The need for the reform of rules related to the plea of insanity is now urgent. They should be tempered with mercy and extended to allow for the advancement of medical knowledge. An archaic law which originated in foreign lands, in peculiar circumstances, and influenced by outdated doctrines, should no longer persist in todays Caribbean.
QUESTIONS
1. It is said that more than half the population suffer from some mental illness; do you agree?
2. Is it true that some men are insane sometimes, but not at other times?
3. Should uncontradicted medical evidence of a man's insanity at a trial be binding on the court?
Further References
I. G. Williams, op. cit., Chapter 26.
2. Smith and Hogan, op. cit., Chapter 9.
3. Barbara Wootton, Crime and the Criminal Law (London: Stevens, 1963), Chapter 3.
4. Nigel Walker, Crime and Insanity in England (Edinburgh University Press, 1968).
5. Sheldon Glueck, Law and Psychiatry (Tavistock Publications, 1962).
4 THE DEFENCE OF PROVOCATION
The common law, in its great wisdom, recognised that some killers kill because they were provoked. It decreed that such killers ought not to be convicted for the capital offence of murder, but for a lesser offence, as their actions were usually prompted by the victims. The severe law of homicide was therefore modified to embrace acts of provocation, and to convict for the offence of manslaughter where provocation was successfully pleaded.
Human tolerance undoubtedly has its limits. Many honourable men can endure, sometimes ignore, repeated taunts, assaults; and attacks on their person or their loved ones. But, when their tolerance is eventually shattered by these provocative acts, they may become irrational and aggressive. Accordingly, under extreme provocation, there may be a sudden temporary loss of self‑control during which a person may kill.
The West Indies' Law Reports, including the unpublished reports of all territories in the Caribbean, are replete with cases in which provocation features as an element in the crime. The verdict, unbelieveably, may be different, depending in which territory the killing was committed. Some territories, e.g. Trinidad, do not allow words to constitute provocation, while others do.
Naturally, not every plea of provocation will succeed. The law only admits that provocation occurs under certain conditions, which will be discussed in another article. We will now confine ourselves in this article to actual examples, to show how provocation operates.
In a notable case, a father returned home to discover a devious character committing an unnatural act with his young son. The protective paternal instinct was outraged, he alleged, and he was immediately led by uncontrollable anger to unleash fatal blows on the culprit. The court accepted his evidence, as the sight of the unnatural act being committed on his son would provoke any reasonable man in the realm.
Similarly, a husband who finds his wife in the act of adultery (or vice versa) may lose his self‑control, and if he does, and kills his spouse, the law will reduce the charge of murder to a conviction for manslaughter.
The law recognises that words, as well as acts, may provoke. Words, with their powerful effect, may cause a dethronment of reason, and induce a person to engage in destructive actions which, in a calm state, he would abhor and repudiate. A wife's confession of adultery to her husband has been held to be a serious act of provocation. If the husband's reaction is an immediate fatal blow,his defence of provocation will probably succeed.
However, if he gives his wife a long lecture on the virtues of fidelity, then fetches a weapon and uses it to slay her, he will be denied the defence of provocation. There was time for reason to resume its seat! The law presumes that if there is 'cooling time' between the provocation and the homicide, then the killer had occasion to regain his self‑control and resume his calm posture. In essence, the act of killing must follow spontaneously from the provocative acts. Rarely, if ever, will the defence of provocation succeed if there is a lapse of time between the provocative act and the killing.
It may be considered strange that a wife's confession of adultery, or similar admissions, should arouse such intense passion in her spouse as to cause him to kill. Actions of this nature, unfortunately, are frequent occurrences, and the law wisely concedes and respects these human weaknesses. It acknowledges the intimate bond which marriage creates between two people. An act of adultery, or a confession of it, violates this spiritual and emotional attachment. The spouse who suffers from this violation becomes enraged and jealous. He experiences severe emotional turbulence which may spark off a violent attack from which fatal wounds may be inflicted.
Astonishingly, the law does not recognise the close bond which may prevail between two unmarried persons. Thus, a plea of provocation is not available to a boyfriend who kills his girlfriend for fornicating with a third party, nor to a common law husband who kills his common law wife for a similar deed. The law in the West Indies is somewhat asinine in this respect, as these relationships may be as strong, or even stronger, than a marital one.
This defect in the law can easily be understood, as it originated in a different society with a more orthodox marital culture. But, after many years of application in the West Indies, the law has not been altered to remedy this unhappy situation. Thus, in a notable Trinidadian case, the accused was charged for murdering his common law wife. The facts of the case shows that he lived with her for a considerable time, bought her numerous luxuries, and gave her a roof to live under. As so often happens she, like a real 'yellow bird', left him to live with another man. Additionally, she took much of his belongings and left the house almost bare.
The accused told his friends and family of the overwhelming love he cherished for this woman and requested them to persuade her to return to him. Evidence was tendered to show he was under intense emotional strain. On the fatal day, he went to his paramour's house to state his case and to plead with her to resume their relationship. She answered by throwing his belongings at him and added that she had found another man who was '100 times sweeter than him'. His immediate response was like that of a madman. He attacked her and stabbed lher several times. She died.
He promptly gave himself to the police and argued that he was utterly unaware of his actions. He claimed that a great power seized him and thrusted him into his fatal attack. These claims were evidently symptomatic of provocation. Amazingly, the Trinidadian courts held that he was guilty of murder as the law in Trinidad did not recognise that the words she uttered, teasing as they no doubt
are, were sufficient provocation to cause him to lose his self‑control. Fortunately, if this case were tried in other territories today, such as Barbados and Jamaica, the accused would probably be found guilty of manslaughter, and not murder. Barbados accepts that words may cause provocation, while Trinidad does not. Barbados nevertheless does not recognise inflidelity between unmarried
persons as provocation. This is unfortunate!
The defence of provocation has done much to ameliorate the severity of a charge of murder. It nevertheless embodies rigid rules which are absurd and inapplicable to West Indian conditions. In the next article we continue the discussion on the defence of provocation in the Caribbean.
QUESTIONS
1. Is the common law in the West Indies realistic when it allows the defence of provocation
to a legally married husband who slays his wife for adultery but not to a common law
husband who kills his paramour?
2. Do people act differently when they are emotionally charged?
Further References
I G. Williams, op. cit., Chapter 22.
2. Smith and Hogan, op. cit., Chapter 11.
3. J.A. Gray, The Physiology of Fear and Stress (London, 1971).
4. R.N. Mowath, Morbid Jealousy and Murder (London, 1965).
5. THE BEHAVIOUR OF THE REASONABLE MAN
In the last article, we discussed how provocation may reduce the crime of murder to a lesser one of manslaughter. The reason given is simply that the law recognises the frailties of human nature under severe and emotional strain. The common law, with legislative approval, has nevertheless placed the defence of provocation in a straitjacket, and allows it very little flexibility in its operation.
Whether actions or words produce provocation is judged by the effect they have on the 'reasonable man'. The reasonable man, in legal parlance, is a hypothetical creature, who, we will observe, is a most unique, and possibly rare, character. The Reasonable man, for instance, is not easily excitable, not mentally deficient, does not possess physical defects, and will remain calm in many situations in which he is abused and mocked. An amazing creature.
The reasonable man, specifically, is not sexually impotent. This physical feature was examined in a notable case in England involving an impotent young man known as Bedder. Bedder was obsessed with his physical defect. He sought to remedy it and to reassert his sexual powers by visiting prostitutes. While on one of these therapeutic visits, Bedder was physically unable to obtain an erection. Copulation was therefore impossible. The prostitute, on this occasion, jeered Bedder, and taunted him hilariously about his sexual disability. After some time, she proceeded to leave, which annoyed Bedder, who tried to stop her.
In the accompanying struggle to detain her, Bedder claimed that she slapped him in his face, punched him in his stomach,.and kicked him in his genitals. In his defence, he alleged that he suffered an immediate 'black‑out', during which he fatally stabbed her.
The court ruled at the trial, and in subsequent appeals, that Bedder's impotence was of no significance. He was to be judged by the standards of the reasonable man, without the defect which Bedder possessed. Bedder was accordingly charged and convicted for murder.
The Caribbean inherited this principle declared in Bedder's case. It is a most outrageous and intolerable rule which can find very little approbation in the region. Can you imagine that the reasonable man does not stammer? We all know that, in the Caribbean, many persons stutter and suffer from other defects of speech which make them physically tense. The slightest imitation of their speech is annoying and they often react violently to such mimicry. Should not the defence of provocation be available to a stutterer, who, being teased and mocked, loses his self‑control and kills the persistent teaser? The idea of a hypothetical creature, known as the reasonable man, by whom all criminals are to be judged, is preposterous, and even more so in the Caribbean. To discern this unique figure is objectively impossible.
In any murder trial in which provocation is pleaded, the judge has to direct the jurors to ask themselves the question, 'Was the provocation directed to the defendant sufficient to make a reasonable man do as the defendant did?' This is the first question. If the answer to the first is yes, the second question to the jury is, 'Was the defendant actually provoked by the alleged acts of the victim [or a third party] ?' The jury frequently answers the first question in the negative, thereby depriving the defendant of the defence. It is definitely easy to understand the action of the jury, as the subsequent discussion will demonstrate.
The jury is supposed to be the standard bearer of the reasonable man in the society. They must determine whether the reasonable man would have been provoked by the words or actions which, the defendant alleged, had occurred. Are they capable of doing so?
It does not need to be proved, it is quite obvious, that most apprehended criminals originate from the poorer classes in the society. Most of them are illiterate, or barely literate. Many of them are unemployed, and probably unemployable. Those evident features are certainly not true of persons chosen to serve on the jury. Jurors are persons who possess a minimum standard of education, are employed, and probably living a comfortable, middle‑class life. The juries in the Caribbean are rarely the peers of men on trial.
To ask juries therefore to determine who is the reasonable man is, to say the least, untenable. The jury will naturally see the reasonable man not like the man in the dock, but like an upright, normal, middle‑class individual who enjoys an average standard of living and displays significant educational qualifications. Convicted criminals often argue that they cannot get justice under the present jury system. And any perceptive examination of the present selection of jurors will show that their claims are not without substance.
The requirement of 'the reasonable man' as the standard to assess provocation is no longer acceptable and ought to be immediately reviewed by the law‑makers. England, from whence this hypothetical creature originated, has started to impose characteristics on the reasonable man which a defendant manifestly possesses. Accordingly, where a fifteen‑year‑old boy killed an adult whom he alleged had buggered him, and then laughed at him, the court held that a reasonable man must be assessed as if he were fifteen years old. This is a step in the right direction. But, there are many steps to be taken before the defence of provocation achieves a practical foundation.
QUESTIONS
I . Should an accused murderer be judged by the standards of the reasonable man'?
2. Are juries objective or do they tend to be influenced by inner 'feelings' or emotions?
3. Most convicted criminals come from low socio‑economic backgrounds, how far do you believe the selective choice of the jurors contributes to this reality?
Further References
1. The Washington Research Project, The Case Against Capital Punishment, Washington, D.C.
2. W. Bowers, Executions in America (Lexington Books, 1974).
3. C. L. Black, Capital Punishment‑ The Inevitability of Caprice and Mistake (New York: Norton & Co. Inc., 1974).
4. 'A Study of the California Penalty Jury in First‑Degree Murder Cases', 21 Stanford L. Rev. 1302 (1969).
5. Hermann, 'Occupations of Jurors as an Influence on their Verdict', 5 forum 150 (1969).
6. F. Goldberg, 'The Jury: A Reflection of the Prejudices of the Community', 20 Hastings L.J. 1417 (1969).
6. THE USE OF EXCESSIVE FORCE
The right to defend oneself and one's property is carefully and indelibly enshrined in every criminal law system. The existence of this right, imposes a duty on would‑be violators to refrain from attacking one's person, property or family; or otherwise, to suffer the consequences. In the proper exercise of this right, the, law recognises that a person may have to severely injure or deliberately kill
another to protect himself or his loved ones.
The law nevertheless has developed a doctrine of excessive self-defence which basically argues that when excessive force is used in defending oneself a criminal charge may arise. In one sense, this is a wise approach. The slightest attack ought not to stimulate a violent response. Thus, if John touches Peter angrily, it would be a clear case of excessive force for Peter to respond by shooting him, or cutting him into several pieces. Likewise, if someone should tease you, to respond by petting stones at the teaser would be an obvious example of excessive force.
On the other hand, the force used, even though excessive, may be quite necessary, and even justifiable. In a recent case in Barbados, a young girl was charged for killing a persistent suitor.' She stated after the offence that her actions followed after she repeatedly and unquestionably refused romantic overtures. To protect herself and to avoid a possible assault she fatally stabbed the unlucky fellow. She was charged with murder. (At the time of writing, the result of this case is not known.)
These hypothetical and actual examples are frequent occurrences in the Caribbean. Ought these persons to be charged and convicted of a criminal offence?
In a notorious Jamaican case the effect of the overcrowded conditions in prisons was vividly brought in public focus. In a small cell, built to house one prisoner, were placed three prisoners. During the course of the lonely night, one of thern sought to participate in homosexual relations with Bartley, one of the other two. His invitation for sodomy was vehemently refused. Not to be deterred, the insistent and passionate prisoner attacked Bartley, pulled off his pants and was determined to have his desires gratified. Bartley thereupon seized a knife (which he alleged was the homosexual's)
and stabbed him several times. He died from the injuries received. Bartley was charged and convicted for murder. He was however acquitted on appeal, as the defence of self‑defence was not adequately put to the jury by the trial judge. The fact that he was charged and convicted for murder shows how unlucky some prisoners can be.
The judicial reasoning that one could be guilty of murder when excessive force is used to kill prevailed in the courts during the sixties. The natural consequence was that where excessive force was used to avoid a criminal attack, the intended victim of the assault or the one who used the excessive force, would now become a criminal. This consequence flowed from two absurd English decisions which held that a person who is attacked or provoked must retaliate with proportionate force. Such a view is untenable! In the heat of attack, it is unwise to ask of any ordinary person to weigh and balance the force he uses to repel it.
A person who is attacked first tries to defuse the attacks and to destroy the attackers to avoid a subsequent one. It would be unwise simply to counter the attack. The attacker may still have
energy and strength to launch another assault!
More fundamental, however, is the psychological evidence that a person seized by fear for his safety secretes an abnormal flow of adrenalin which makes his actions excitable, violent, and frequently uncontrollable. Similarly, a person who is provoked loses his self-control as a result of the excessive flow of adrenalin in his system. These physiological states emphasise that in many situations we may become overwhelmed by passion and are not masters of our actions. Recognising these medical realities, one finds it paradoxical that the law should require the victim of an attack or one who is provoked, to use proportionate force to resist the attack. In the heat of the moment, it is more likely that excessive force will be used to destroy the immediate attack and the possibility of subsequent ones, rather than trying to determine how much force is to be used.
For example, a girl who is attacked may succeed in temporarily paralysing the attacker and, would‑be, rapist. If shre then uses a stick and cracks his skull and kills him, most people would consider her actions a wise and reasonable one, The law nevertheless is exceptional in this regard because it would lay a charge of homicide on her. She would then have to show that her actions were justified in the light of the attacker's intention to rob and rape her, and failure to permanently destroy the attacker would leave open the possibility of being ravished by him when lie recuperates from the temporary paralysis. She may not succeed in discharging this burden of proof.
Fortunately, the law has recognised the absurdity of convicting for murder where excessive force is used to foil an attack or too avoid a criminal offence. The lesser charge of manslaughter is sub‑stituted.
Unfortunately, however, there are many jurisdictions which still pursue a charge of murder and even now sorne persons are convicted where excessive force is used to counter an attack or where force is used after being provoked.
The doctrine of excessive self‑defence certainly needs revision, it is absurd that a victim of an attack who courageously defends himself or herself should become guilty of murder or manslaughter.
To defend oneself is the most fundamental of mans instinctive drives. The law should accord with this stark reality, and only in exceptional circumstances should a person who uses excessive force to protect himself and others be made to suffer the penalty of the criminal law.
QUESTIONS
1. Should a person who uses excessive force to repel a criminal attack be found guilty
of a crime?
2. Do you suffer frorn physiological changes when you are
a) frightened,
(b) in a quarrel, or
(c) attacked physically by someone?
Further References
1. Cardoza, 'What Medicine Can Do for Law', in Selected Writings of Benjamin Nathan Cardoza, ed. Hall (1947).
2. B. E. Eleftherion, and J. P. Scott (eds.). The Physiology of Aggression and Defeat (New York, 1971).
3. A. Storr, Human Aggression (London, 1968).
4. N. Morris, and C. Howard, Studies in Criminal Law (0xford 1964).
7 TO KILL OR TO DIE
None of us would like to be forced into the precarious position of having to decide whether to kill or to die. We certainly do not want to kill, but we may have to do so in order to live. Many unlucky persons have had to face this dilemma, and their choice is definitely between the devil and the deep blue sea.
The decision to kill or to die may arise in many unlikely, though possible, situations. The most likely situation is one in which a person is confronted with imminent death at the hands of a criminal (or criminals), and kills in self‑defence. We have already dealt with this matter (see previous article) and no further discussion is necessary. Suffice it to say that the law recognises killing in self‑defence as a complete defence to a charge of murder.
On the other hand, consider yourself in the following predicament. You are in a shipwreck and no help is in sight. By unknown means you find yourself in possession of a plank of wood which barely keeps you afloat. Nearby, you nervously observe another victim of the shipwreck who stretches his hand to grab your plank; yes, your plank, the one that barely keeps you afloat! What are you to do?
You are aware, more certainly so, that any extra weight will cause the plank to submerge and thereby to cause your inevitable drowning. Would you allow him to hold on, even though by doing so both of you will sink and drown? Or, would you push him off and stay afloat, even though you knowingly cause his imminent death through drowning? Are you magnanimous enough to die together? I doubt it. It is more likely that you will push him away and face the consequences of your action.
This hypothetical case is not far removed from reality. A somewhat similar incident has occurred and was tried in a court of law. The verdict was manslaughter.
Consider a second hypothetical case. John is the leader of a group of three mountaineers. They are all climbing a tall cliff and are attached to a long rope. The rope had been previously used and was inspected thoroughly before they embarked on this climb. When John arrives at the edge of the cliff he painfully observes that the rope is partially severed by the sharp edge of the rock over
which it perilously hangs. He quickly calculates that the rope cannot support all three members of
the group; in fact, it is about to be totally severed. Reluctantly, he cuts the rope below him, sending
the other two mountaineers crashing to their untimely death. John is saved and tests show that his actions saved his life. Would you convict John for murder?
The nearest reported law case to our hypothetical example is the infamous case of Dudley and Stephens, decided in 1884. The law developed in this case, and which still prevails today, originated from tragic circumstances on which even the jury refused to pass a verdict. The following is a summary of the case.
The crew of a yacht were compelled to put into an open boat during a storm. They drifted several hundred miles away from the land. On the twentieth day, after eight days without food and water, two of the crew (Dudley and Stephens) killed the cabin‑boy with a knife. They devoured portions of his body. Tbey were obviously starving, and their actions were undoubtedly precipitated by the sheer necessity to survive. Four days after the killing they were rescued. They were in very poor health.
At the trial, the jury refused to undertake the responsibility of convicting Dudley and Stephens. They declared in a special verdict that 'if the men had not fed upon the body of the boy they would probably not have survived to be picked up and rescued, but would within the four days have died of famine; that the boy, being in a much weaker condition, was likely to have died before them; that at the time of the act there was no sail in sight, nor any reasonable prospect of relief . . . . that assuming any necessity to kill anyone, there was no greater necessity for killing the boy than any of the other three men, but whether, upon the whole matter, the prisoners were and are guilty of murder, the jury is ignorant, and refer to the court'.
The Divisional Court of five judges then considered the case and held that the act was murder. The men were sentenced to death, the mandatory sentence for murder. The Crown mercifully commuted the sentence to six months' imprisonment.
The law has not changed measurably since that drarnatic case. It still resolutely refuses to acknowledge the defence of necessity. To plead that one's actions are necessary in the circumstances is of no avail. The law requires that the ordinary human being ought to give his life courageously rather than cause the death of another. There are certainly cases, like our hypothetical ones, in which necessity as a defence should succeed. But would you also consider a thiefs plea that he stole food in order to avoid imminent starvation an adequate defence?
Many arguments have been put forward to support the view that necessity should be a defence. Unfortunately, it is difficult to determine what is necessary in any given circumstance. To leave it up to the jury is unlikely to solve the problem. The law nevertheless needs to take cognizance of certain cases of necessity such as Dudley the Stephens which cry for judicial mercy rather that executive clemency.
Questions
1. Suppose you were in Johns position in the hypothetical example. Would
yo have done the same thing?
2. Should the law recognise the defence of necessity?
Further References
1. G. Williams, op. cit, Chapter 24
2. Smith and Hogan, op. cit. Chapter 9
3. See G. Williams Cambrian L. Rev. (1978) for a full examination of
R v. Dudley and Stephens.
8 KILL OR BE KILLED
Most of us shudder under threats. We fear death and injury to ourselves, our family and loved ones, and even to our friends and associates. We would really risk injury if, by so doing, lives could be saved. But how many of us would deliberately ignore the threat of death in order to save another's life? The impending fear of death may indeed prompt us into action. Our action may require us to kill in cold blood or to assist in doing so, and we reluctantly and painfully comply. In recent years, two prominent cases have been discussed in legal parlance without an appropriate and acceptable conclusion.
The first case concerns an incident occurring in Northern Ireland involving members of the terrorist organisation, the Irish Republican Army. The appellant, Lynch, alleged that he was forced under the threat of death to yield to the wishes of well‑known members of the IRA. Lynch was a taxi‑driver and, on the day in question, claims that he was taken at gun‑point and forced to convey the members of the IRA to the scene of the crime. While in the taxi, he became aware of the terrorists' intention; they planned to shoot a policeman. Lynch, then and there, could beg leave and ask to be excused; which he actually did. Spontaneously, and not surprisingly, he felt the butt of a gun twitching his neck with firm instructions to keep driving, and obey all further instructions.
Well, Lynch was not going to argue with a gun; his courage had its limits. He drove on, and while passing through a Belfast Street, the terrorists opened gun‑fire on the policeman and killed him. Lynch continued to drive the terriorists after the incident and took them outside of the city to safety. He was charged for murder.
Lynch's case was appealed up to the House of Lords, the highest court of appeal for Northern Ireland to determine whether duress was a defence to murder. His main contention was that he was always under the immediate threat of death. His actions were therefore induced by the possible consequences if he should act contrary to the wishes of the terrorists. In these circumstances, Lynch contended that his ordinary power of human resistance was actively impaired, his conduct should therefore be excusable,
The House of Lords, by a majority judgment of three to two, accepted the proposition that an accessory, or one who passively participates in the crime, should have the defence of duress available to him. They left open the question whether or not a person actually taking part in the killing while under the threat of death should have the defence of duress, available to him. Lynch had therefore won his first battle. He needed now to show that he was merely an accomplice or a passive participant.
The case went back to trial to determine the extent of Lynch's participation. The jury found that Lynch was not an accessory, but was an active participant in the crime. They clearly rejected Lynch's evidence that he was threatened. He was convicted for murder. So much for Lynch. The principle enunciated in the case, nevertheless, still prevails as the existing law.
Soon after, the interesting case of Stanley Abbott surfaced. Abott, Abdul Malik and others were charged and convicted for the murder of a young English socialite in Trinidad. The victim was killed in the most vicious and outrageous manner. She was held by Abbott; and while being so held, she was stabbed several times by others. She was then buried; Abbott again assisted with her burial Medical evidence showed that she died, not from the stab wounds, but from suffocation caused by the burial.
Abbott appealed the decision. He prayed for the court to accept his plea of duress. His plea was based on his allegation, and. supported by independent testimony, that Malik had threaten