THE IDEA OF woman as a killer challenges popular beliefs about femininity. Women kill infrequently but the rarity of the occurrence often fuels the repugnance. There is still a shock value in women, the begetters of life, taking a life.
Murder is usually committed by men. Analysis of crime figures over the years show that children are more likely to be killed by men, and women are more likely to be killed by men. Statistics vary from year to year but taking an average over the three years leading up to 2015, 97% of female domestic violence homicide victims were killed by a male suspect. Women are far more likely to be killed by a partner or ex-partner than men are. In the year ending March 2016 50% of female murder victims aged over 16 – 77 women – were killed by their partner or former partner. This is part of a slow downward trend but no cause for putting out flags. Yet, only 7% of men who are murdered are killed by a partner or former partner. Here in Britain, because of our strict gun laws, only 5% of homicide victims are killed by shooting; the most common method of killing is a knife or other sharp instrument, though women are often strangled or suffocated. The Femicide Census profiles the cases of women killed by men and it makes harrowing reading.
Women keep their killing within the family. Usually they kill their children, mainly babies (40–45% of women convicted of killing fall into this group) and usually they are mentally ill at the time, usually suffering from post-natal depression. About 35% of those convicted of homicide have killed their partner. However, the overall numbers of women killing men is tiny. In 2015, 14 women were convicted of murder and only five of the victims were men.
It is instructive to look in some detail at a key historical case when examining the attitude of the law to women who kill. The trial of Ruth Ellis, the last woman to be hanged in Britain, was over in one and a half days, a feat which would no doubt win the acclaim of many judges today, who bemoan the long duration of trials. A murder trial, which involves exploring the psychological state of a defendant against a complicated background of emotion, violence, insecurity and abandonment, inevitably takes a good deal of time and is built upon a very full knowledge of the person represented.
Ruth Ellis’s leading counsel, Mr Melford Stevenson, later became a High Court judge and the scourge of the Old Bailey. When Stevenson represented her he was relatively inexperienced in the criminal courts; he was mainly a divorce practitioner, and had done few major criminal trials. He had none of the instinctive feel which the good jury advocate needs to overcome the unspoken prejudices which lie beneath the surface in any criminal case. Nor did he have the empathy which might have helped Ruth Ellis tell her story in a more compelling way.
Mr Christmas Humphreys, who must be the only Buddhist to sit on the bench, opened the case for the Crown on 21 June 1955. Ruth Ellis stood alone in the dock charged with the murder of David Blakely. Humphreys laid emphasis on the fact that Ellis was conducting simultaneous love affairs with two men: with David Blakely, whom she killed, and with Desmond Cussen. What was never explored was the true nature of her relationship with Cussen, whom she leaned on for emotional support but never considered seriously as a lover; it later transpired that their sexual liaison lasted only a matter of weeks, in June 1954. Humphreys told the jury that Blakely was trying to break off the association and that Ellis was angry about this, even though she had another lover at the time. He described how she took a gun, found David, and shot him dead by emptying that revolver at him, four bullets going into his body, one hitting a bystander in the thumb and the sixth disappearing completely. After the shooting outside a public house in South Hill Park, Hampstead, Ellis was questioned by a police officer who told her that he had seen the body of David Blakely and understood she knew something about it. Her reply was: ‘I am guilty, I am rather confused.’ She then made a written statement to the police describing how, after putting her child to bed, she had picked up a revolver that had been given to her by a man as security for a loan three years ago, and had put it in her handbag. She had gone out, she said, with the intention of finding Blakely and shooting him.
Christmas Humphreys called only a few witnesses to provide evidence in support of the history of the relationship between Ruth Ellis and David Blakely and the events surrounding the killing. After each person completed their testimony, Melford Stevenson rose briefly to his feet to announce that he had no questions. The case for the Crown was over within the morning.
In his opening speech to the jury, Stevenson made great play of the fact that the defence did not challenge any part of the prosecution’s version of what had taken place. The jury was informed that the defence would call an eminent psychiatrist who would tell them that ‘the effect of jealousy upon the feminine mind, upon all feminine minds, can so work as to unseat the reason and can operate to a degree in which in a male mind it is quite incapable of operating’. The two feminine minds on the jury must have loved this description of their frailty.
The defence tactic of keeping clear of the prosecution case may well have been based on the idea that the less said about Ruth Ellis’s lifestyle the better, and that what was said should come from her, carefully circumscribed by her own counsel. But juries have a sixth sense when they are not hearing the full story, and their conjectures about what they are not hearing can sometimes be more damaging than the real thing. Sometimes it is better to reveal the defence hand completely. It is as much in those subtle displays of judgement as in fine advocacy that you find great lawyering.
The defence must have realised that Ruth Ellis could appear rather hard-faced because of the way she described the events. Even when there is no challenge to the evidence of prosecution witnesses, they can be the source of crucial material which sheds light on a case and provides corroboration for the defence. Melford Stevenson was unlikely to secure anything very useful from the evidence of personal friends of Blakely, who gave evidence for the prosecution. But among the witnesses for the Crown was someone who knew intimately the suffering experienced by Ruth Ellis. Desmond Cussen, her ‘alternative lover’, was the only real friend Ruth Ellis had, and his love for her was unquestioned. He undoubtedly hoped that in time she would get Blakely out of her system and look upon him with more favour. Cussen knew that Blakely was happy to exploit Ruth Ellis sexually and financially.
Unlike Ruth Ellis, a daughter of the lower classes, David Blakely came from a well-to-do family. His father was a doctor of sufficient means to provide his son with a small private income. At 25, Blakely had no steady job but hung around the edges of the motor-racing world. He seems to have been intoxicated with the fast life as well as with hard liquor. When he first met Ellis, who was the managing hostess of a run-down nightclub in Belgravia, he was engaged to a ‘suitable’ young woman from his own background. No doubt Ellis provided an earthy sexual diversion, but the relationship developed into a compulsive affair in which she was regularly beaten and humiliated. She obviously had hopes that this was the relationship which would provide her with social acceptability and a real partner, a delusion which was somehow never dispelled even when Blakely had affairs with other women, refused to involve her in some parts of his life and made it clear to her that she was despised by some of his own circle.
Ruth Ellis gave evidence on her own behalf. Whenever a defendant walks from the dock to the witness box to give their own account there is always a strong sense of anticipation; you can almost feel it, especially in a murder trial. For the defending counsel this is the moment to turn the case round and view it from a different perspective. Taking a defendant through the evidence may seem like a straightforward process to the onlooker, but there is a special skill involved in choreo-graphing a defendant’s account so that, while coherent, it also gives the jury a sense of the misery and turmoil that can lead to behaviour that would normally never even be contemplated. The counsel’s task is to enable the client to communicate their sense of desperation, or whatever other aspects of their emotional state figured in the offence. It should be like watching a pas de deux. Defendants have to be drawn out so that they describe exactly how they were feeling at the time, the things that were running through their heads, their emotional state in the weeks and days before the crime was committed. Expressing such emotion in a court of law, particularly Court I at the Old Bailey, is a daunting prospect and is usually only possible if the person on trial has established a degree of trust and understanding with their counsel.
Any reading of Ruth Ellis’s testimony makes it clear that Melford Stevenson had little point of contact with the woman he was representing. At best she was an enigma to him; more likely he saw her as a woman of little virtue. She responded to his questions methodically and briefly; expansion was rarely sought. Even when she was dealing with the violence and rejection which would form the basis of any defence of provocation, weak answers to Stevenson’s own questions were left unpursued. She was never asked to explain a bit further when she said Blakely ‘only hit me with his fists and hands’, even though she was clearly subjected to regular beatings, causing bruising, black eyes and treatment at the Middlesex Hospital, and even though Cussen could have confirmed this. Like many battered women before and since, her underplaying his violence was probably a coping mechanism, and it also displayed the complicated emotions that go with loving someone who treats you like a dog. Her feelings of rejection and humiliation when Blakely finally dumped her, aided and abetted by his circle of friends, were never fully explored, nor was there any probing of the intensity of emotion that she must have experienced during her long vigil outside the public house, in which she could hear him laughing and socialising. Every sense of herself as an outsider, beyond the pale of his social class, must have been reinforced, and her head must have been buzzing with visions of Blakely with another woman. None of this reached across the courtroom to the jury. Her irrationality was explained as jealousy, the fury of the woman scorned, rather than as the response of someone who had been systematically abused, exploited and demeaned.
Counsel for the prosecution asked only one question in cross-examination. ‘When you fired that revolver at close range into the body of David Blakely, what did you intend to do?’
It was not even a leading question. Ruth Ellis replied: ‘It is obvious. When I shot him I intended to kill him.’
I can almost hear the silence in the courtroom when she gave that answer, and the gloom it must have invoked in her lawyers. Yet no attempt was made to recoup in re-examination. No doubt she did intend to kill him at that moment, but the real issue was whether she had been provoked beyond endurance, whether her action was that of someone out of control, a product of desperation in intolerable circumstances. When he came out of the public house, did he see her and ignore her, and did that final act of rejection cause her to snap? It was a case which had to engage the sympathies of the judge and jury in order to surmount the obstacles presented by the law as it then stood.
Where her lawyers had their hardest task was in dealing with Ruth Ellis’s decision to take a gun with her when she went to the address in Hampstead where she suspected her lover would be. From such a deliberate action the jury would reasonably assume, in the first instance, that this was a premeditated act of revenge. The immediacy or ‘heat of the moment’ principle is an important aspect of provocation, and it was bound to fail in this case unless Ruth Ellis had some explanation of how her intentions varied at different times, and how the unexpected sight of him led to a sudden temporary loss of self-control. The questions put to her did not seem designed to elicit such an account, if one existed or had ever been explored with Ruth Ellis in the preparation of her case. It has since transpired that her solicitor knew that Cussens had given her the gun but she had asked him not to tell anyone so had not passed that information to counsel.
The evidence was completed and the rest of the day was spent (in the absence of the jury) presenting the legal arguments to Mr Justice Havers. There were then muddled exchanges about the effect of infidelity, jealousy and ‘new law’. No mention that she was battered by him and that he had induced a miscarriage by his blows. Finally the judge gave Melford Stevenson the opportunity to clarify the defence position. ‘Does your proposition come to this?’ he asked. ‘If a man associates with a woman and he then leaves her suddenly and does not communicate with her and she is a jealous woman, emotionally disturbed, and goes out and shoots him, that is sufficient ground for the jury to reduce the crime of murder to manslaughter?’ No mention whatsoever was made of Blakely’s violence, nor of his psychological abuse. Apparently Melford Stevenson was unable to answer Mr Justice Havers’s question.
The following morning the trial judge addressed the court before the jury returned. He ruled that there was not sufficient material to support a verdict of manslaughter on the grounds of provocation and that as a matter of law he would so direct the jury. The death sentence was more or less passed at this point. Stevenson made no comment, and indicated that in the circumstances he accepted that he could not make a closing speech to the jury. The judge then summed up, telling the jury that it was not possible to bring in a verdict of manslaughter. The jury retired for 14 minutes before returning with their verdict of guilty. The ritual of the black cap and the grisly formula that she would be taken to a place where she would be hanged by the neck was pronounced. Ruth Ellis was led away.
Despite the uproar at a woman going to the gallows, and many efforts to obtain a reprieve, the execution took place three weeks after the trial, with the traditional crowd gathered outside the prison awaiting the publication of the death notice on the gate. Victor Mishcon, a brilliant solicitor who became a Labour peer, was brought in at the end to see if he could persuade the Home Secretary that the death penalty was excessive in the circumstances of this case. He, by then, knew from Ellis that she had been given the gun shortly before the shooting by a not disinterested party, namely Cussens.
Given the state of the law of homicide at the time, the same result might well have followed whoever the judge and counsel. What ensued, however, was a public debate over whether a distinction should be made between a killing of this kind and a cold-blooded murder. The important postscripts to the Ellis case are that it lent fuel to the powerful campaign to abolish the death penalty, affected the development of a psychiatric defence to murder which fell short of insanity, and helped to codify the provocation law.
Ruth Ellis’s case would have been conducted differently today and would very likely have led to her acquittal of murder. This is largely because of the changes in the law, which have introduced a number of fresh concepts to homicide trials. Parliament thought it was being thoroughly modern when it introduced the Homicide Act in 1957 because it established two statutory defences to murder, reducing the offence to manslaughter (a) where the accused was suffering from a mental disorder which diminished his or her criminal responsibility, or (b) where the killing was a response to provocation by words as well as deeds.
Provocation was available as a defence prior to the enactment, but because of concern that vengeful behaviour would escape just punishment, which for murder meant the death penalty at that time, it had been narrowly interpreted in the case law. Provocation was interpreted for juries by the judges as conduct immediately preceding the killing. The archetypal case was that of the betrayed husband finding his faithless wife and her lover in flagrante and killing one or the other, or both, on the spot. There could be no pause for premeditation. Words, for example, could not amount to provocation prior to the 1957 Homicide Act.
As for diminished responsibility, until the Act, the only debate about mental states was whether a defendant was sane or insane according to the ‘M’Naghton rules’. There it had to be clearly proved that at the time of committing the alleged offence the party accused was labouring under such a defect of reason or disease of the mind that he did not know the nature and quality of the act he was doing, or that he did not know it was wrong. The defendant had to be so demented that he would think he was squeezing an orange when he was throttling his victim. The test derived from the case in the 1840s of a Scotsman who felt he was being persecuted by the Conservatives because he refused to vote for them; in delusion he murdered a Tory agent. (I used to wonder whether anyone who refused to vote Conservative in those days was readily considered mad by members of the judiciary.) By the 1950s the test had become seriously discredited as a method of determining the mental state of an accused. The verdict of not guilty to murder by reason of diminished responsibility, reducing an unlawful killing to manslaughter, does not require that someone is certifiably insane, just that he or she has a definable degree of mental disorder. The defence can include a difficulty in controlling one’s actions, provided this arises from an abnormality of mind. A psychiatrist has to assist the court.
Even today, the issue of whether someone suffers from some abnormality of mind which diminished their responsibility for a killing is one which taxes juries. It used to be said that juries were reluctant to convict people of murder when they faced the death penalty, but even without the ultimate sanction there seems to be an unwillingness in jurors to declare someone guilty of wilful murder when they were in the grip of crushing emotional turmoil at the time. Equally, juries are reluctant to let a person who takes a life escape all sanction, which is why self-defence is rarely successful in murder. The moral conviction that the taking of a life cannot go unmarked is present in the court and there needs to be an overwhelming sense of justification – that one’s own life was under immediate threat – before a jury will allow an accused to walk free with no conviction whatsoever. However, the willingness to accept manslaughter as the appropriate plea often depends on the sympathies evoked by the defendant. In mercy killings, where family members bring to an end the misery or pain of a terminally ill relative, judges and juries alike are usually prepared to stretch the definition of diminished responsibility.
There seems little doubt that the outcome of Ruth Ellis’s trial in 1955 was affected by a moral evaluation of her way of life – as a sexually active divorcee, a mother of an illegitimate child and a club hostess. The tabloid press would still have a field day at her expense, but today’s jury, furnished with as much information as has subsequently come to light, might take a more generous view.
Self-defence is a complete defence to murder and means a defendant walks free from the court if it succeeds. It is permissible in law for someone to act in self-defence if placed in immediate peril and if some instant reaction is necessary to avert the danger. If the attack is over, or is not imminent, then the employment of force may be seen as revenge, or punishment, or the settling of an old score. The force must also be reasonable. The use of a knife, a heavy weight or a gun is often a crucial handicap for a woman, since a weapon may be regarded as involving excessive force and the act of securing it can allow for the argument that her behaviour was calculated or not in immediate response to an attack. Yet many women are incapable of defending themselves without having a weapon to hand.
When men determined what is acceptable conduct in response to attack and what might constitute self-defence, they were thinking of other men, of similar stature and strength, locked in even combat, where the introduction of a weapon would be bad form, stacking the odds on one side. The law takes insufficient account of the disadvantages women feel in the face of male strength. It is illustrative that the most common murder weapon used by wives is the knife, and the scene of her crime is most often the kitchen, while men kill their wives with their bare hands in the bedroom.
An element of subjectivity has been introduced to account for the race, sex, or special characteristic of the person in the dock. This is the narrow opening into which arguments about the history of domestic violence could be crammed, but women are still hamstrung by the spectre of the vengeful wife. It is in the ancient legal authority of Blackstone’s Commentaries that we find the clear statement that revenge is no defence. The classic pronouncement in modern times, which is used daily to guide us in the courts, comes from Lord Morris of Borth-y-Gest, and in the ordinary case it is a perfect statement of the present law:
It is both good law and good sense that a man who is attacked may defend himself. It is both good law and common sense that he may do, and may only do, what is reasonably necessary. But everything will depend upon the particular facts and circumstances. Of these a jury can decide. It may in some cases be only sensible and clearly possible to take some simple avoiding action. Some attacks may be serious and dangerous. Others may not be. If there is some relatively minor attack, it would not be common sense to permit some act of retaliation which was wholly out of proportion to the necessities of the situation. If an attack is so serious that it puts someone in immediate peril, then immediate defensive action may be necessary. If the moment is one of crisis for someone in immediate danger, he may have to avert the danger by some instant reaction. If the attack is over and no sort of peril remains, then the employment of force may be by way of revenge or punishment or by way of paying off an old score or may be pure aggression. There may be no longer any link with a necessity of defence.
The problem with that statement is that battered women feel incapable of leaving, incapable of taking the commonsensical steps which may be possible between equally matched men. They are no match for their husbands, not just pound for pound in the weighing scales but in their feelings of powerlessness, in the weakness of their low self-esteem. Seeing one event of violence in terms of immediate peril or as a moment of crisis which passes is contextual distortion; when the abuse is constant it is inappropriate to pull out one single fragment of that history. This is a perfect example of a law that by its letter seems fair but in application is anything but. Treating as equal those who are unequal only creates further inequality. Battered women should not be expected to play by the Marquess of Queensberry rules, and it should be recognised that the peril has not passed for a woman and her children when a wife-beater is merely resting before the next round.
The immediacy principle makes no sense when the provocation takes the form of long-term abuse. When a person lives with persistent violence and alcoholism she often becomes overwhelmed. Her whole life is out of control. She would not be thinking rationally for some time, and her feelings often would not manifest themselves as ‘snapping’, in the form of the crazed outburst, but may seem more controlled: a snapping in slow motion, the final surrender of frayed elastic.
Any study of women who kill their husbands (a crime which in former times was indicted as treason) exposes a history of cumulative violence. Most women who kill a spouse or partner have suffered long-term abuse; yet a significant number would fail the test for provocation. Fortunately for most of the women – or unfortunately from another perspective – the toll of violence usually means they are able to invoke a defence of diminished responsibility, suffering as they almost invariably are from depressive illness or post-traumatic stress disorder as a result of the abuse. By and large this reliance on their psychiatric state takes the sting out of the weakness of the other defences, because the women are then sentenced with appropriate compassion, though there will always be women who slip through that net. There is also the principled concern that women should not be pushed so readily towards a pathological explanation for their behaviour, an argument which seldom troubles women looking at prison bars, who understandably value their liberty and the welfare of their children above all else.
On 9 May 1989 Deepak Ahluwalia had yet again beaten his wife and terrorised her with a hot iron. There was a well-documented history of domestic violence. He had hit her, tried to strangle her, brandished knives at her, pushed her downstairs, sexually abused and raped her, and constantly threatened to kill her. The attacks often took place in the presence of their children, who cowered in fear of him. Kiranjit Ahluwalia had obtained court injunctions against her husband twice but had failed to get them enforced after threats from his family. Like so many battered wives, she could sense his mood swings and could read the signals which meant the onset of an attack, but she usually felt powerless. That night she could take no more and, when he fell asleep on the bed, she poured petrol over his feet and set it alight.
Deepak’s death led to a charge of murder against his wife, a woman who had put up with long-term violence because of cultural constraints.
This is the essence of my culture, society and religion, where a woman is a toy, a plaything. She can be stuck together at will, broken at will. Everybody did what they wanted with me, no one ever bothered to find out what kind of life I was leading after I married – one of physical and mental torture.
The culture into which I was born and where I grew up sees the woman as the honour of the house … In order to uphold this false ‘honour’ and glory she is taught to endure many kinds of oppression and pain in silence. Religion also teaches her that her husband is her god and fulfilling his every desire is her religious duty. For ten years I tried wholeheartedly to fulfil the duties endorsed by religion. For ten years I lived a life of beatings and degradation and no one noticed; now the law has decreed that I should serve a sentence for life. Today I have come out of my husband’s jail and entered the jail of the law.
For Kiranjit Ahluwalia, diminished responsibility was not argued as there were varied opinions on the nature of her depression after suffering the effects of years of abuse. The problem for Kiranjit Ahluwalia’s lawyers was that she had waited for him to fall asleep, and it was this aspect of the evidence that was emphasised by Mr Justice Leonard. M. J. Willoughby, an American academic lawyer, expressed the opinion that on this view of battered women who kill their sleeping partners ‘society gains nothing, except perhaps the additional risk that the battered woman will herself be killed, because she must wait until her abusive husband instigates another battering episode before she can justifiably act’.
The requirement that a battered wife must wait until assault is under way before her apprehensions can be validated in law is an acceptance of murder by instalment. If a person being held hostage killed a terrorist captor, the fact that he was sleeping would be of no consequence. The prison of the violent marriage is hard to contemplate for those on the outside.
In July 1992 Kiranjit Ahluwalia’s case came before the Court of Appeal. Attempts were made by my colleague in chambers, Geoffrey Robertson QC, to contextualise his client’s behaviour against the background of prolonged violence. He tried to press the argument that immediacy has been an evidential development and that no such requirement exists in law. On 31 July the court quashed Kiranjit’s conviction. The three judges, headed by the Lord Chief Justice, Lord Taylor, ordered a retrial, on the grounds that new medical evidence, which might have proved a defence of diminished responsibility, had not been brought forward, and should be tested in court. Lord Taylor went to great lengths in his judgment to say that any alteration in the existing legal definition of ‘provocation’ as ‘temporary and sudden loss of control’, must be a matter for Parliament, not for the courts, since it involved changing ‘a particular principle of law [which] has been confirmed so many times and applied so generally over such a long period’.
The case of Sara Thornton came to symbolise all that was wrong with the system and set in train some important shifts in the judicial approach to provocation. Sara Thornton stood trial in February 1990 charged with murdering her husband, Malcolm, having attacked him with a knife as he lay drunk on a couch. The Crown accepted that her alcoholic husband was deeply violent towards her, but maintained that she had attacked him in a calculated way, having deliberately gone into the kitchen and sharpened the knife. Because she had had periods of mental breakdown in the past and because of the delay between her husband’s last threat and her strike, Sara’s trial lawyers saw this as a case of diminished responsibility, but her plea to that effect was not accepted by the Crown, and she was convicted.
The psychiatric evidence of the defence was that Sara Thornton was in a state technically described as a ‘fugue’ at the time she killed her husband. This term would seem to describe an interval where the person is not in control. In answer to questions by the prosecutor the psychiatrist agreed that this was not a treatable condition. What Sara Thornton was undoubtedly suffering from was the cumulative effect of domestic violence and the psychological demands of dealing with a chronically alcoholic partner. She had only been married to Malcolm Thornton for 10 months, but those months had taken their toll. She was, in the language of provocation, no longer mistress of her own mind at the time of the killing, hence the ‘fugue’ state, but she was not fulfilling the definition of diminished responsibility: an abnormality of mind. She was functioning in conformance with the classical provocation scenario, except that there was no word or deed triggering her action. It was an accumulation of abuse, evoked as her husband lay on the couch, which drove her to violence.
Unlike English law, which viewed the elements of suddenness restrictively, Australian law would have had no problem with the delay which preceded Sara’s action. Judges there have long recognised the concept of cumulative provocation, acknowledging that a series of incidents, which may in themselves be trivial, could constitute serious provocation if viewed collectively. It is accepted that deliberate preparations for killing may be made while in the heat of passion and that such deliberations are distinguishable from cases of pre-planned killings.
The common law in Australia has been developed in a way that is attuned to women’s lives, and the judges’ decisions have been consolidated in legislation which specifically stipulates that the provocative conduct of the deceased is relevant, ‘whether it occurred immediately before the act or omission causing death or at any previous time’. The statute states unequivocally that provocation is not negated as a matter of law where ‘the act or omission causing death was not an act or omission done suddenly’.
However, counsel for the Crown in Sara Thornton’s case maintained to the jury that an acquittal would provide Sara Thornton, and I suppose any like-minded women, with ‘a licence to kill’.
At her appeal in July 1991, Sara’s new counsel, Lord Gifford, argued that ‘the slow-burning emotion of a woman driven to the end of her tether … may be a loss of self-control in just the same way as a sudden rage’. However, this argument was not accepted in Sara’s case; her appeal failed because the court remained influenced by the fact that she had equipped herself with a sharpened knife and had in the week before his death threatened to kill Malcolm Thornton. At a later appeal she was released, but on the grounds that her mental state at the time amounted to diminished responsibility.
Other women have fallen foul of this same problem; their behaviour was seen as premeditated because, evidentially, delay before action is interpreted that way. However, in the context of the abuse, and because of the genuine belief in the omnipotence of the abuser, the killing seems to the woman like a rational and coherent response.
In the same week that Sara Thornton’s first appeal failed, a trial judge accepted Joseph McGrail’s plea to manslaughter of his wife on the grounds of provocation and passed a suspended sentence. McGrail had lived with Marion Kennedy for more than 20 years. They had two sons, both handicapped and both in care. Ten years previously Marion had begun to drink and eventually became addicted to sleeping pills. When she had been drinking she used to insult her husband and swear at him. She was a scold, a nag.
One day in February 1991, when McGrail returned from work to find her drunk again, he could stand no more. He kicked her hard enough to cause her to die of internal bleeding. The judge commented that living with Marion ‘would have tried the patience of a saint’.
In March 1992 Rajinder Bisla, having strangled his ‘nagging’ wife in front of his three children, was also given a suspended sentence. No doubt, like Joseph McGrail, he snapped, and we should welcome the humanity which was shown to him. Justice for women does not have to be secured by denying it to men. However, the willingness to recognise the male experience is a reflection of the male nature of our courts. Nagging is seen as the female equivalent to violence. Yet men married to intolerable women usually have many more alternatives available to them and find it easier to leave.
However, from the early nineties the courts in fact shifted the parameters of provocation in response to the urgings of women seeking justice. Cases like that of Emma Humphreys educated the judiciary, politicians and the public about the law’s shortcomings. In 1985 Emma Humphreys, aged 17, was jailed for the murder of her violent boyfriend and pimp, Trevor Armitage, who had introduced her to prostitution. After suffering months of physical, sexual and emotional abuse, she stabbed him when she thought he was about to attack her again – but did not tell the trial about the abuse. In 1995, after 10 years in prison, the Court of Appeal reduced her conviction to manslaughter and she walked free. As a result of these cases, a jury was directed to put themselves in the shoes of the woman on trial and to consider the context of events. There came a recognition that the courts must acknowledge cumulative provocation, where after a history of abuse the final act which tips a woman over the edge may not seem very grave but may be the last straw. The question of the time frame was also widened so that judges made it clear to a jury that ‘immediacy’ should not be interpreted literally. While clearly a woman would not be entitled to go days later to kill her abusive partner, a delay before acting did not preclude the defence. What was not allowed, though, were acts born of revenge rather than anger or despair.
By the early 2000s, attitudes towards women accused of manslaughter where abuse played a part were changing.
In 2001, my client Michaela Wrenn stood trial for the murder of a young man called Justin Chant. The allegation was that she, along with her older partner, Stephen Sullivan, and a young man called Lee Smith, had held Chant captive and starved him to death. The facts were horrifying, describing a cruelty beyond measure. What Chant experienced would have constituted torture in any international tribunal – food deprivation, no drinking water, deafening sound, a freezing cold shower, confinement in a space where the tiniest movement was impossible, no sanitation so that he had to sit in his own excrement with no inkling of what might happen next. He was kept in the dark and then brought cowering into the light to be subjected to verbal abuse, intimidation and aggression. The level of fear engendered was so great that Justin Chant did not ever cry out for help, not a sound. These activities, which compared to the behaviour of Latin American death squads and torturers, were taking place in a council flat in Essex.
The orchestrator of this prolonged punishment was Sullivan, a small-time crook and drug dealer, who reigned like a tyrant over his tight coterie of confederates. All the people he drew around him were vulnerable; boys like Justin Chant who had been in care, like Lee Smith who was physically disabled and lonely, or his girlfriend Michaela Wrenn who had been abused by her stepfather and run away from home when she was only 16 to be with Sullivan, a man twice her age. Stephen Sullivan’s persecution of Justin, who was already treated like a slave, was for some trifling misdemeanour. The prosecution case was that Sullivan was indeed the central killer, a malevolent, dangerous man, but their argument was that Wrenn and Smith had willingly participated in the torture and death by doing nothing to secure help or to alleviate the torture of their victim.
However, as the Crown prepared their case an extraordinary picture of Sullivan came to light. More and more women gave statements telling of their suffering at his hands, though they had to be compelled to do so. His own mother had been battered by him when he was still a boy. His sisters lived in terror of him. One after another 10 women gave accounts of the most horrifying abuse against them and their children. The judge ruled that the Crown could not use the material as part of their case as it was so prejudicial to the accused, but for Michaela Wrenn and Lee Smith the evidence was vital as it explained their terror of and manipulation by Sullivan. After lengthy legal arguments during the trial, the judge conceded that the evidence was admissible to support the defence of Michaela Wrenn that she was a battered woman who was so paralysed by fear for her own life that she could do nothing to help Justin Chant. The fear Sullivan generated, even after many years without contact, meant that witness summonses had to be issued; the women with whom he had relationships were so afraid to come to court, so afraid to face him, even when he was in the dock between two prison officers and behind a security screen, that the court had to order their attendance.
Once there, the women recounted violence and cruelty of such magnitude that it was hard to listen to. Some of it was indescribable. He had shoved his hand into one woman’s mouth and forced it open with such ferocity that it tore, leaving a scar which extended up the side of her face. He had beaten, kicked and humiliated these women when they were expecting his children. He had broken into their homes after they dared to change locks. When they tried to escape he found them. The women had no connection with each other but patterns emerged, creating a vivid picture of a controlling, dominating bully who surrounded himself with pliant, vulnerable people many years his junior, who became enslaved to him out of terror. The evidence showed a man who never reached maturation, driving around in flashy vehicles, spending hours cleaning them or getting others to do so, touring the streets with loud ‘look at me’ music blaring from his woofer; his obsessional concern about clothing, insisting that seams were pressed on his T-shirts, that his socks were ironed, that the soles of his trainers were cleaned; his bragging connections with criminals; his demands for constant attention that meant he was even jealous of a woman’s child; his extraordinary control of women by impregnation. This was a man who had fathered 18 children, as if tattooing himself on these women so that they could never be beyond his power.
A number of the women described attempting suicide because of their despair. Some of the hardest pieces of evidence for the jury related to children: the smashing of a child’s face for crackling a crisp packet; a small boy, little more than a baby, hiding wet pyjama bottoms for fear of the punishment that would be exacted – being locked in a dark cupboard; a hungry baby being left to scream while its mother wept because Sullivan decided when babies were fed; the pouring of a child’s antibiotics down the sink. One mother described the day her daughter did not return home. She watched the clock and knew with each passing minute that she had run away, that her daughter was free. Although she had lost her child, she was happy for her because ‘at least she had got away.’
Michaela Wrenn remained under Sullivan’s spell until shortly before her trial, because even from prison he was able to exert control over her. It was with the support of decent, kind people that she began to recover her self-worth and to see that she could be free of him. Her greatest act of courage was going into the witness box and testifying against him. It was one of the most moving cases I have ever conducted.
The question for the jury was whether Michaela Wrenn, as a free agent, was a party to the murder of Justin Chant. But the jury had no difficulty acquitting her and also Lee Smith. They knew that she was no more able to stop Sullivan’s cruelty towards Justin Chant than she was able to stop his cruelty towards her. Stephen Sullivan was sentenced to 23 years’ imprisonment. Most of the women he had abused came to see him sentenced, to be sure that he was really going to jail. I was embraced by them all at the end of the case.
This was a case at the extreme end of the scale but only because one woman after the other told her tale. Had any one of those women appeared in court as a solitary complainant of abuse, they would have faced the same old claims of exaggeration and invention and they would have been asked sceptically ‘if it was so bad why didn’t you leave?’
Prosecutors and police find it hard to understand that a woman may be battered by more than one partner, and they draw from such a history the conclusion that the woman must make the men batter her. It is her fault. What is so often misunderstood is that men who abuse usually have a radar system, drawing them to women who will have underlying vulnerabilities – women who have had rotten lives, who think they deserve no better, who have been sexually abused or traumatised in childhood. It is not always so. Women from a secure and stable background can also be battered or psychologically abused, but it is often the case that abusive men seek out women who feel fortunate to be loved at all. Their unerring antennae takes them straight to women who are less likely to walk away at the first slap.
Since the turn of the century there has been a quantum leap in the court’s understanding of the forces which drive women to kill. Cases are now being handled with increasing comprehension of domestic violence, which is invariably the backdrop to domestic homicide, whether it is a husband or wife who is in the dock. Judges and juries can be greatly assisted by hearing from experts like the psychologist Sandra Horley, who as chief executive of Refuge has worked for years with battered women, counselling over 3,000. Psychiatrists like Dr Gillian Mezey and Dr Nigel Eastman have now extensive experience of dealing with cases of women who kill after a history of domestic violence and they regularly testify in court about the dynamic which is set up in abusive relationships and the consequent post-traumatic stress disorder or battered women’s syndrome which victims of abuse suffer.
Women have also been helped by the fact that that prominent actor in the dramatis personae of the courtroom, ‘the reasonable man’, took his final bow when the new statutory defence of loss of self-control was created in 2009 in the Coroners and Justice Act. His long journey on the Clapham omnibus came to an end. ‘Of course, we all know there is no such thing as the reasonable woman,’ was always the law lecturer’s cheeky joke. The fictional ‘reasonable man’ was frequently invoked in criminal trials whenever juries were asked to apply a common-sense standard of acceptable behaviour. The new defence of loss of self-control which can reduce murder to manslaughter required a qualifying ‘trigger’ to cause the loss of self-control that resulted in the killing. The jury would then be asked if a person of the same sex and age as the accused with a normal degree of tolerance and self-restraint would have acted similarly in the circumstances. This statutory defence gave us a modern reshaping of the old provocation defence and I like to think that my argument for law reform set out in Eve Was Framed laid some of the groundwork for this legal change. The Act also expressly provides that the defence cannot be triggered by the victim’s infidelity.
Some campaigners feel that it is unjust that a woman is convicted of manslaughter after killing a manifestly brutal partner and have argued for a new defence of ‘pre-emptive strike’ self-defence. This would provide a woman with a complete defence if she kills her partner when he is asleep or drunk because she has become so convinced that he is going to kill her when he wakens. The very language replicates George Bush’s justification for breaking international law and waging war on Iraq and I am deeply opposed to it. His position was that waiting for Saddam Hussein to take definitive offensive steps towards the West was unnecessary so he was entitled to bomb Baghdad to blazes. But that argument was not persuasive to most of the world. Similarly, most people would not be enthusiastic about a perfectly rational woman planning and then blowing out the brains of her sleeping husband, even if she was terrified of him. They may be content to see her culpability reduced to manslaughter in the right circumstances but not to see the killing vindicated. Legal reform must always be undertaken while looking in your wing mirrors; otherwise ghastly coaches are driven through your best intentions.
Despite these advances, women are still convicted of murder where many have felt it should have been manslaughter. Especially where women are young and vivacious it is hard for juries to accept their high levels of fear. I was in a taxi not long ago where the taxi driver recognised me and said he had been on my jury in a case where my battered client had been acquitted of murdering her husband. He told me that the women on the jury had been the ones who delayed in reaching a not-guilty verdict; they thought it possible that my client had provoked her husband’s violence by her flirtatious conduct. Sometimes women can be tougher on their own gender than men. However, the solicitor Harriet Wistrich believes in some of the plausible cases of miscarriage of justice the failure is related to the poor preparation of the woman’s case and the failure to secure good psychiatric assessment by trial solicitors and counsel who know nothing about the effects of long-term abuse or domestic violence.
A root-and-branch review of the homicide laws is still needed. Judges complain that current rules force them to treat all people convicted of murder in the same way. The mandatory life sentence should be abolished. It fails to reflect the wide variations in crimes now classified as murder – at one extreme, the sadistic killing of a child, and at the other, the assistance given to a patient who is dying and begs for the pain to be ended. Life should be made the maximum sentence, rather than mandatory, and it should be left to the judge to sentence according to the circumstances. However, the government is committed to the mandatory life sentence because the law-and-order lobby holds too much sway and the mandatory life sentence was the price for abolishing capital punishment.
Given the intransigence on the mandatory life sentence for murder, there should also be a new partial defence created of ‘killing in extremis’, which would cover a carer who kills purely to end the suffering of someone who is terminally ill, or someone who kills in circumstances where there is extraordinary mitigation, such as after rape or the murder of one’s child. Such mitigatory circumstances should reduce murder to manslaughter. This suggestion is likely to be highly controversial but I make it only as an alternative to the ending of the mandatory life sentence, which I consider preferable. This new mitigatory defence could cover situations where a woman deliberately killed her partner after terrible abuse but was not able to invoke diminished responsibility or loss-of-control defences.
Murder is the most serious crime of all. That is why we have to progress with caution when it comes to reform. But we also have to keep remembering that women rarely kill, yet they are frequently murdered.