~ Justice Devlin’s legacy: Duffy - A Battered Woman ‘Caught’ in Time
Battered women, provocation, capacity for self-control, Criminal Cases Review Commission
Summary: This article reports in detail for the first time the case of Duffy [1949] which is considered to be the bedrock and foundation of the law on provocation within the common law and following the Homicide Act 1957 when articulating the subjective test. The direction to the jury, affirmed by the Court of Appeal and handed down to courts ever since, is of such importance that it is surprising that the facts and circumstances of this case remain, to this day, unknown to many lawyers. The Law Journal[1] reported this case with the same brevity as did the Appeal reports reflecting the seeming irrelevance of the factual background of domestic violence to the development of the law of the time.[2] This article lays the case bare, explores the facts, questions the judgement, and considers whether Mrs Duffy’s conviction for murder was a miscarriage of justice, concluding that Justice Devlin took the law down a path from which it has strained unsuccessfully to recover, and with disastrous consequences for battered women who kill.
Introduction
A defence of provocation, if successful, reduces a charge of murder to one of manslaughter. Whether provocation, as constituted in law, should be available to reduce murder to manslaughter has been a matter of continuing debate within and outside the law.[3]
Section 3 of the Homicide Act 1957 s.3 provides:
“Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation is enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”
Provocation requires things said and/or done (the provocative act) and the defendant's response to the provocative act (subjective test) which must be characterised by a loss of self-control,[4]The loss of self-control must be temporary[5] sudden and temporary,[6] and the circumstances which have caused the loss of self-control must be live and smarting at the time of the killing. Whether the loss of self-control is a legitimate response (reasonable, justifiable, and excusable) to a perceived provocation is a question for the jury[7] in their assessment of whether a reasonable man[8]/reasonable person,[9] with the relevant characteristics of the defendant, would have lost his or her self-control given the same circumstances (objective test). It is for the jury to determine what particular things said or done might be considered as reasonable to result in a loss of self-control. The gravity of the provocation to the defendant is historically and culturally bound.[10] In the 16th century it might have been sufficient provocation to bite one’s thumb at others,[11] or in early 20th century the act of spitting at someone might have sufficed.[12] Words were in principle excluded, although certain words were clearly regarded as performative.[13] That is to say the issuing of the utterance was performative of the action.[14] Words that were accepted as wounding[15] were restricted to a confession of adultery on the part of a wife. By the 20th century however, such confessions, unless accompanied by exceptional circumstances, were not enough.[16] The judge has the right to direct a jury that there is no evidence capable of reducing the crime from murder to manslaughter. In Alexander [17] the appellant was indicted for the murder of Ellen Clarke, with whom he cohabited. The jury found him guilty of murder with a strong recommendation to mercy on the ground of his mental deficiency. The provocation suggested in this case was that the deceased had said she was going to live with someone else. The provocation occurred two hours before the fatal act.[18]
In Holmes v DPP,[19] where the wife said, “Well, if it will ease your mind, I have been untrue to you,” and she went on, “I know I have done wrong, but I have no proof that you haven't - at Mrs. X.'s”, it was decided that bare words would not suffice to constitute provocation and the judge withdrew the defence from the jury[20]. That decision to exclude words was reversed by the 1957 Homicide Act s 1. In addition, the gravity of the provocation is not free floating but becomes live in the characteristics of the defendant. So shouting, “you nigger” to a white man would not be a remark which could be considered to provoke. Donald Lesbini had shot Alice Eliza Storey at Fairyland, a shooting gallery on Tottenham Court Road in Central London. Lesbini said, “...they were worrying me, they always did when I got there…They call me a Jew, but I am not.”[21] Lesbini was a man who was mentally unbalanced. The court rejected the defence of provocation. The provocative act therefore only becomes validated by its relationship to the defendant. Only those characteristics which bear a relationship, connection or association with the defendant become engaged. This legal rule can be explicated by a Saussurian analysis.[22] Saussure refers to such a relationship as “signification”. The provocative acts become engaged because of a relationship between the signified and the sign.
Losing self-control has been constrained in legal doctrine almost exclusively to a state of anger and rage.[23] Horder calls this “the loss of self-control dilemma”,[24] especially as loss of self-control is limited in concept of provocation to “stereotypically male, violent reactions to provocation”[25] excluding fear and despair, such that where the loss of control is manifest in anger such a response is universalised whilst the response of women in fear and despair is particularised.[26] The standard human subject (in provocation) is inexorably male[27]. Furthermore the relationship in time between the last provocative act and the defendant’s fatal action has been accorded a central place in law, as has the state of mind of the defendant during that [period of] time [elapsing]. As Sir James Fitzjames Stephen wrote,
“In deciding the question [of provocation] whether this was or was not the case, regard must be had to the nature of the act by which the offender causes death, to the time which elapsed between the provocation and the act which caused death, to the offender's conduct during that interval, and to all other circumstances tending to show the state of his mind.”[28]
In Hayward,[29] Tindal C.J. also expressed the view that for provocation to qualify the defendant must have killed, “...whilst smarting under a provocation so recent and so strong that he might not be considered at the moment the master of his own understanding.” The common law allowed for provocation where the provocative act was strong and recent, and provided that the defendant was still smarting at the time of the killing, such that a time lapse was not automatically precluded. In Fisher,[30] the court said this: “In a case of killing, whether the blood has had time to cool or not, is a question for the court, and not for the jury; but it is for the jury to find what length of time elapsed between the provocation received and the act done.” Clearly, the common law relied on two elements the relevance of the proximity in time between the provocative act and the response and the state of mind of the defendant during the time lapse.
Loss of self-control, a matter of time – Devlin J’s legacy
That position was to change following the case of Duffy. The common law formulation of loss of self-control was given a nuance by the Court of Appeal ruling. It thus made it impossible for provocation to succeed where there had been a lapse of time, however understandable the circumstances, and regardless of the state of mind of the defendant. The trial judge, Justice Devlin, determined the weight to be attached to each of the requirements of provocation by attributing a greater weight to the requirement of “suddenness” (by which was meant there must be no time lapse between the provocative act and the killing) than the weight given to other factors, and thereby making it a necessary feature of the defence. Horder remarks that Devlin J’s definition gave rise to the “immediacy dilemma.”[31] Devlin J. asserted,
“Provocation is therein defined as some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self- control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”[32] This judgement was accepted in its totality by the Court of Appeal. The most prominent consideration of earlier case law, that is, the state of mind of the defendant “whilst smarting under a provocation so recent and so strong” (Hayward above),
in Devlin J’s ruling, is now usurped, becoming instead a function of time so that a passage of time defeats a provocation defence.
“In considering whether or not there has been provocation the law attaches importance to: (a) Whether there was what is sometimes called time for cooling, that is, for passion to cool and for reason to regain dominion over the mind; (b) The retaliation in provocation - that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given. Fists might be answered with fists, but not with a deadly weapon, and that is a factor you have to bear in mind when you are considering the question of provocation.”[33]
Contrary to popular opinion, it was not Devlin J. but Viscount Simon in Holmes,[34] who first coined the term “sudden and temporary” with relation to provocation. He said:
“The whole doctrine relating to provocation depends on the fact that it causes, or may cause, a sudden and temporary loss of self-control whereby malice, which is the formation of an intention to kill or to inflict grievous bodily harm, is negatived.”
Although Viscount Simon did not identify a sudden and temporary loss of self-control as the precondition of provocation, he said:
“It is hardly necessary to lay emphasis on the importance of considering, where the homicide does not follow immediately upon the provocation, whether the accused, if acting as a reasonable man, had ‘time to cool.’”[35] Clearly, Viscount Simon, even though he used the phrase “time to cool”, entertained the possibility of a time lapse and did not consider that time of itself dictated cooling. Whether passion had cooled during a time lapse, was also a central question in Kwaku Mensah.[36] “Sudden and temporary”, after Duffy, came to be considered a precondition of provocation, and with disastrous consequences for battered women who kill. “Suddenness” of the killing (on the act of the provocation) became of primary importance and where there was a delay in time between the provocative act and the killing it was presumed that passion had run stone cold. In DPP v Camplin,[37] Lord Diplock suggested that the formulation of “sudden and temporary” in Duffy had followed Lesbini. Lord Diplock said: “At least from as early as 1914 (see Rex v Lesbini)[38] the test of whether the defence of provocation is entitled to succeed has been a dual one; the conduct of the deceased to the accused must be such as (1) might cause in any reasonable or ordinary person and (2) actually causes in the accused a sudden and temporary loss of self-control….”[39] There is no mention in Lesbini of the term “sudden and temporary “as there was no immediacy issue.
The misuse and arrogation of the requirement of “suddenness” following Duffy, to something approximating a rule of law, was the subject of legal challenge in Thornton[40]. This was a case where a battered woman, in the course of an argument, went into the kitchen and returned with a carving knife with which she stabbed and killed her husband. Here, counsel[41] argued that the Duffy ruling was wrong, that the legal concept of provocation did not require loss of self-control to be “sudden”, and that such a requirement had been incorporated into the law by a too literal adoption of the words used by Devlin J. Beldam L.J. in delivering the judgment of the Court of Appeal in Thornton did not agree. He said: “The words ‘sudden and temporary loss of self-control’ have ever since Duffy been regarded as appropriate to convey to a jury the legal concept of provocation first expressed by Tindal C.J. in Hayward (1833).”[42] Beldam L.J. was wrong, as Lord Diplock had been. Later that same year, the case of Ahluwalia[43] (a battered woman who killed her husband, by setting alight the bed in which he slept, following an argument some time earlier) was heard before a differently constituted Court of Appeal. Counsel for the appellant also argued that the Duffy direction followed by the trial judge was wrong, submitting that a woman subjected over a period to verbal and physical abuse may kill her abuser because of a 'slow burn' (cumulative provocation) reaction to the continuous maltreatment, and in addition that the trial judge failed to comprehend the true meaning and impact of s.3 of the Homicide Act 1957. Counsel’s argument in Ahluwalia was received with some sympathy by (Lord Taylor C.J.) in the Court of Appeal. Not wishing to overrule Duffy, Lord Taylor tried to reconcile the two aspects of “cumulative provocation” and a “slow burn” reaction with the requirement of “sudden and temporary” that Devlin J. had treated as mutually exclusive. He said: “We accept that the subjective element in the defence of provocation would not, as a matter of law, be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a ‘sudden and temporary loss of self-control’ caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation.”[44] However, Lord Taylor’s words “... ‘provided that there was at the time of the killing a ‘sudden and temporary loss of self-control’...”, muddied the waters. It would have been more consistent with his judgement to have said, “provided that there was evidence of cumulative provocation and a slow burn, and at the time of the killing itself there was evidence of a temporary loss of self-control”. But had he taken that course it would have led to uncertainty with regard to whether he was, in fact, overruling Duffy. He did not wish to go that far and said this: “[Counsel's] argument in support of this ground of appeal amounted in reality to an invitation to this court to change the law. We are bound by the previous decisions of this court to which reference has been made, unless we are convinced that they were wholly wrong… [I]t must be a matter for Parliament to consider any change.” Since Parliament had never decided the matter in the first place Lord Taylor was being overly cautious and it would have been perfectly acceptable for the Court of Appeal to have developed the law by departing from the Court of Appeal in Duffy. I argued earlier, in 1996, that Lord Taylor had rejected the need for the immediacy requirement in cases where battered women experienced the effects of abuse.[45] There is also some recent support for this view from Shute and Taylor.[46]As I have said elsewhere[47] in an effort to bring battered women within sight of law’s justice, reversing Duffy’s “no blame is attached to the dead man,” Lord Taylor conceded that cumulative provocation and a long course of conduct were relevant, and that “battered woman syndrome” had “become a characteristic within the meaning of Lord Diplock’s formulation.”[48] But clearly Lord Taylor preferred to bring these characteristics within the objective test related to the gravity of the provocation and not to the capacity for self-control. As a consequence the law became confused and strained because Lord Taylor, in tempering the effect of sudden and temporary on the provocation defence, allowed a lapse of time and created a new definition of suddenness, whereby suddenness was no longer intended to capture the absence of temporality between the provocative act and the retaliation but instead to convey the nature of a defendant´s reaction. As to the second matter raised by Devlin--the mode of resentment--he was quite clear that Rene Duffy had used two deadly weapons to kill. As Devlin remarked, “[f]ists might be answered with fists but not a deadly weapon”. The Homicide Act 1957 removed the proportionality requirement for provocation, but although no longer a rule of law, the method of killing and whether a weapon was used has continued to shape public opinion and the courts when determining intention to kill.[49]
Rejecting Excusable circumstances and variable capacity for self-control[50]
Following Holley,[51] (a case in which a husband killed his wife with a hammer)[52] the law on provocation has taken another retrograde step with regard to a quite separate aspect of the subjective test.[53] Holley does not deal with Devlin’s “sudden and temporary” requirement at all. Its significance, it is generally agreed, is in its restoring to the reasonable person a fixed capacity for self-control, resisting the formulation accepted by the majority of the House of Lords in Smith,[54] that characteristics of the defendant (objective test) could affect both the gravity of the provocation to him and also his capacity for self-control. However, judicial authority is not agreed that prior law had demanded a fixed capacity for self-control. Smith had developed the law also by embarking on a completely new test for the jury, requiring them to consider whether the loss of self-control was “sufficiently excusable”.[55] Lord Hoffman said: “The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter.”[56] This “sufficiently excusable” threshold became embodied in the Judicial Studies Board specimen direction on provocation replacing the earlier formulation of reasonableness: “It is then for you to decide whether or not D's loss of self-control was sufficiently excusable to reduce the gravity of the offence from murder to manslaughter...”[57] and appeared as part of the judicial summing up to the jury in many cases of provocation.[58] This new formulation widened the defence of provocation, diluting its objectiveness and altering the philosophical basis of this aspect of the defence transforming it from a justification into an excuse, and an excuse which was founded on anything which in the opinion of the jury was sufficiently excusable. Holley forced the rewriting, once again, of the Judicial Studies Board specimen direction in June 2007.[59]
The battered woman was presented with two hurdles in Duffy. First, the killing had to be committed immediately following the provocation (sudden and temporary formulation) and second, exasperation and a long course of conduct (cumulative provocation\ slow burn) were expressly excluded. (Earlier cases had said that these were factors to be considered, and not factors to be excluded). Holley dealt another blow to the battered woman defence in removing the possibility of the variable capacity for self-control. The variable capacity for self-control had been part of the defence in cases of battered women who kill since Ahluwalia, with the development of the concept of battered woman syndrome.[60] In this sense, it was recognised that a woman who experienced violence had a heightened perception of future violence and a heightened fear and anticipation such that her capacity for self-control might be lowered because of her specialist knowledge of the risk to her life. To the person who had not experienced such violence a lowered level of self-control might be perceived as an overreaction, but to someone in the position of the battered woman such a reaction would be commensurate with her knowledge and perception.[61]
Holley has sparked considerable concern and debate about whether there is any room for manoeuvre where the characteristic relied upon (the objective test) is said to affect the capacity for self-control, as is the case when a battered woman kills because of a heightened fear. It would appear that on a strict reading of Holley no longer will it be possible for a battered woman to argue that her capacity for self-control is lowered because of the effects of abuse. Her capacity for self-control must be standard. This will mean bizarrely that she will have to react as if she has no knowledge of his past violence or likelihood of future violence. She will have to present her loss of self-control as reasonable relying only on the gravity to her of the provocation. This will, in turn, if justice is to be done, demand that the jury understands the heightened fear and terror experienced by battered women and the effect this has on the gravity of the provocation to her. It is hoped that the courts will not be so strict where there is a nexus between the characteristics and the capacity for self-control.
The main problem however is the bane of Devlin J’s judgement which caught Duffy out of time. Who was she and what do we know of this case?
Justice Devlin and Battered Women who Kill
Rene (Renee) Duffy (nee Russell) was born, on 29th May 1929, in Manchester. Her family were poor and she came from what was then described as a ‘broken home’. Her parents separated when she was ten years old. At that time she was sent from Manchester to Liverpool where she attended St Saviour’s Convent and lived for five years with the Sisters of Charity. In 1944, at 15 years of age, she returned to Manchester and took up employment as a domestic servant, and then later was engaged in a number of manual jobs, including bottling at a local brewery where she met George Duffy whom she married on 30th August 1947 at the age of 17. On 20th April 1948, she gave birth to a son and named him George after his father. The Duffys lived at Flat 40, Kennet House, Cheetham, Manchester,[62] with Rene’s grandmother, Alice Ann Pendlebury and a cousin, George Thornton. Kennet House was a 1930’s art deco block of council flats. The Duffys shared the facilities and had their own bedroom which they shared with their baby son. The marriage was short lived. By all accounts, including the statements of witnesses at her trial, her statement to the police, the trial judge’s summing up, and prison records on her progress whilst in prison,[63] Rene was trapped in a violent marriage. The Manchester
The Manchester Guardian reported that her counsel argued that she had been subjected for the whole of her married life to a systematic course of cruelty and ill treatment.[64] She reported to police that her husband had tried to strangle her a month before his death. Rene’s sister, in giving evidence at her trial, remarked on the bruises she had seen on her sister’s face. In interviews with prison doctors prior to her trial Rene also talked of her husband’s sexual demands upon her which disgusted her.[65] When examined on admission into prison on 8th December 1948, she had several injuries of recent origin including contusions of the right forearm, wrists, shoulder and shoulder which were consistent with her story of his violence against her. The picture that emerged at trial was indelibly of a quiet and conservative young woman who endured in silence a husband’s violence. The impression she made upon the jury, resulting in a jury recommendation of mercy, is evidence of her appealing character.
On December 7th 1948, the night of the killing, an argument ensued between them. She said she had given up her job at the brewery, he told her she was to return to her job and she said she was leaving him. He hit her repeatedly and twisted her wrists. She also said that on the night of the killing he had sexually abused her and there had been quarrelling for a long while.[66] She tried to remove her baby from the room but he lunged at her. During the course of the argument, although it is difficult to establish precise time intervals from the case papers,[67] she went to the kitchen, picked up a hammer, and returned to the bedroom, hitting him several times on the head and face whilst he was lying on the bed. Whether he was partially asleep or drunk, or simply resting is unclear. (There was no furniture in the bedroom except one bed and a cot and therefore nowhere else to sit or relax). It is significant that there was no evidence of him putting up a fight, although he sustained bruising to the right upper arm and a laceration to the right thumb[68] and extensive bruising on the outer half of the back of the right hand[69] which were all likely to be self defensive injuries. After this assault she then left without changing her clothes, which were blood stained to go to her mother’s house[70] on the south-west side of the city (a distance of 7-8 miles away depending on the route taken) taking the baby with her. It was December, evening, and cold. She wore no overcoat or jacket for the journey having pulled on a jumper only, leaving her leopard skin patterned coat hanging over the side of the cot.
When she arrived, “soaking wet”, according to the evidence of her sister she said, “I have killed my husband”. When the police arrived at Duffy’s house, having been called by a neighbour at about 10.45pm, George Duffy was found lying on the left side of the bed. The pillow upon which he lay was saturated with blood and there was evidence of considerable blood spattering on the wall behind the bed. Alice Ann Pendlebury, (Rene Duffy’s grandmother) when giving evidence in chief, said she returned home at about 10.45pm and went into the Duffy’s room, “I couldn’t see his head because of the blood. Blood was on the pillows. The walls were full of blood.”[71]
Rene Duffy was interviewed by the police on 8th December at 12.15am at 109, Brook House Flats, West Gorton, the house of her mother. Police Constable: “I have just come from your home, 40 Kennett House, where I found your husband in bed with severe head injuries. He has been taken to hospital for treatment. Can you tell me how he got his injuries? Rene Duffy: “He was hitting me and twisted my wrists. I had had enough of it and went into the other room and got the hammer. I went back and hit him with that.” (She made no mention of the hatchett).She was cautioned and charged two days later, that she did feloniously murder George Duffy, to which she replied, “I didn’t intend to murder”[72] a position she maintained throughout. In a statement taken from her on January 5, 1949 she said, “I plead not guilty and reserve my defence”. Asked whether she wished to call witnesses or give evidence she said “not at this stage”.[73]
Manchester Assizes
The trial[74] was held at Lancashire winter assizes in Manchester on 16th and 17th March 1949, before Justice Devlin, who had only recently been made a High Court judge, at 42 years of age. Mr J Redmond Barry, for the prosecution said in his opening speech that Rene Duffy on the night of December 7th, 1948, had murdered her husband with a hammer and hatchet following an argument whilst he lay on the bed.[75] Expert evidence was then called from Keith Robinson, a house surgeon at Crumpsall Hospital, who reported the following injuries having attended George Duffy at 23.40 that evening.[76] His report noted a catalogue of injuries including: “ I should say there would be 12 lacerations. They varied in length between one and two inches. They also varied in depth some of them going right down to the bone of the skull… The right temple sowed flattening. The right cheek was also flattened”.[77] George Stewart Smith, the Home Office pathologist, who performed the autopsy, noted two sets on injuries, those on the body and those on the head. His report was most detailed. Of the injuries to the head he reported: “There were extensive fractures involving almost the whole of the right side of the skull, and the frontal and temporal bones had been broken into many pieces.”[78] He went on to say: “I formed the opinion that the cause of death was shock…think the injuries were caused by the hatchet. But I cannot exclude that these wounds might also have been caused by the same instrument which caused the more severe injuries”.[79] Ernest Pedley, from the Home Office Forensic Science Laboratory, said the evidence indicated that both weapons had been used, “I found that the cutting edge of the hatchet was somewhat blunt and heavily bloodstained on both sides. Three short hair fibres were found adhering to the cutting edge. The hammer weighed just less than ten pounds and was extensively blood stained on the head”.[80]
As to the clothing of the accused, Rene Duffy had been taken from her mother's house to Whitworth Street Police station where she was cautioned and charged, and the clothes she was wearing (a skirt, costume jacket (blouse), and jumper) were removed from her. They were examined by Ernest Pedley who reported,
“…several blood spots on the front lower half of the skirt (exhibit 4) and several blood spots present on the lower front of the right sleeve and below the right hand pocket of the [costume] jacket [blouse] (exhibit 5). On the back right hand side of exhibit 5 there are further blood spots and a small fragment of bone was removed from the garment a short distance above the lower edge. It was a human bone”. [81]
Mr J. W. Stansfield, (counsel for the accused) presented Mrs Duffy as a battered woman, who had sustained a long course of her husband’s violence and had suffered from what we today term “cumulative provocation.” Counsel said that Duffy was in a state of anxiety as a result of his continuous cruelty and brutality, and did not intend to kill him, but had lost her self-control and was still smarting from the provocation (Hayward requirement, above).
As Duffy had elected to call no witnesses on her behalf counsel had to rely on drawing relevant facts to assist the defence from prosecution witnesses when under cross-examination. Alice Ann Russell (Duffy's older sister), when under cross-examination said:
“She didn't tell me her husband threatened to kill her if she did not go back to her job. She had not previously complained to me about her husband's treatment. She always stuck up for him. I have seen her with black eyes and bruises on several occasions she never told me how she came by those bruises she always made out it was an accident … I remember three months after their marriage having to call my mother to the assistance of the accused, the accused and her husband were rowing. I said to my mother ‘He's murdering her in there’”.[82]
Rene Duffy said in evidence that her marriage was unhappy and her husband very cruel and very bad tempered. That he had struck her many times, and that one month before the child (11 months old at the time of the trial) was born he tried to strangle her. On the evening of December 7 they quarrelled and she decided to leave him but was afraid that he would not let her take the child. When she told him she was leaving he leapt at her in the bedroom and she pushed him away and went into the kitchen.[83]
Alice Ann Russell, (Duffy’s older sister), when under cross-examination said, “I have seen her with black eyes and bruises on several occasions she never told me how she came by those bruises she always made out it was an accident…I remember three months after their marriage having to call my mother to the assistance of the accused, the accused and her husband were rowing. I said to my mother ‘He’s murdering her in there.’”[84]
As to the time lapse, between the last act of provocation and the killing, George Thornton, Rene Duffy’s cousin, in his evidence said he left the flat at 19.15pm and returned at 19.50pm leaving promptly again. He did not note anything unusual between the accused and the deceased. Rene Duffy arrived at her mother’s house at 22.00. This would allow approximately 2 hours ten minutes for an argument to ensue, for George to assault Rene, for Rene to leave the room, change her clothes, then return to the room, kill George and travel the seven or eight miles across Manchester to her mother’s house. (The journey between these two homes via bus today would take about 1 hour 10 minutes door to door. In 1948, she would have taken one bus from Cheetham into the city terminus and then another bus from another part of the city to West Gorton. She would also have to wait for a bus; waiting time could be anything up to 40 minutes for both buses.[85]
Her sister said that when she arrived she was soaking wet; that was the very first thing her sister noted about her appearance indicating that there is therefore a very strong possibility that she walked. If she travelled by bus, this would leave her about 20 minutes to have the argument, change her clothes and kill her husband, thus leaving very little time between his last act of provocation and her retaliation. It is to be noted that the Law Journal said that she remained in the kitchen for some time, whilst the judge's summing up said she left the room for a short while. If she walked, it might have taken her about 1 hour 50 minutes, leaving even less time between George's last act and her response. Her sister reported that she was in a terrible state on arrival, crying and “excited” (agitated), unable to drink a cup of coffee because she would be sick. It is also to be noted that she travelled either by bus or on foot in bloodstained clothing, not having changed her clothes nor attempted to conceal any of the evidence. On the contrary, she was a walking exhibit of what had happened earlier that evening. (Her overcoat was left hanging over her baby's cot.)
Devlin J., in summing up to the jury, rejected counsel’s cumulative provocation argument and said, “Provocation in law is not: Circumstances which merely predispose to a violent act...Severe nervous exasperation or a long course of conduct causing suffering and anxiety”.Devlin J. then directed them on the law in which he gave a definition of provocation in which he articulated the “sudden and temporary” requirement (see above). The jury returned a verdict of guilty to murder. Devlin J. in pronouncing sentence said: “You will be taken to a lawful prison, and thence to a place of execution, and to suffer death by hanging” [86] probably knowing at that time she would not, adding that the jury recommendation to mercy would be passed to the Home Secretary.[87]
The Appeal
On 23rd March from Manchester Prison Rene Duffy lodged a notice of application for leave to appeal against conviction and legal aid. On 4th April 1949, following her application to the full court, Rene Duffy was granted leave to appeal against conviction, but leave to call further evidence was refused.[88] What that evidence might have been is hard to say but, by 4th April 1949, the date of the appeal hearing, a more detailed picture of sexual abuse and a violent marriage was emerging, providing a much fuller and starker detail of the history of violence, including sexual violence beyond that with which the original jury had been acquainted, as Rene Duffy began to speak more openly about what her life had been like. A passage in the Prison Doctor’s report read: “Regarding her married life she states she has not been particularly happy on account of the unsympathetic manner in which the deceased treated her. She maintains he was moody, quarrelsome and frequently brutal. Furthermore, she states he was lustful, and forced her to indulge in abnormal sexual practices which were abhorrent to her.”[89] It may also have been the case that personality characteristics would have formed part of that additional evidence. Duffy had experienced epilepsy from the age of 18 months to seven years following a fall down the stairs.[90] One of the medical reports concluded, “I think it would be fair to say that the most the E.E.G. indicates is that prisoner would perhaps be more liable to lose self-control in positions of emotional stress that would persons with completely normal E.E.G.”[91] But further evidence on this point would not have assisted a defence of provocation either.
The main ground of appeal submitted was on a question of law, counsel arguing that Devlin J’s remarks might have led the jury to conclude that a long course of conduct, suffering and anxiety could not in law amount to provocation. The Manchester Guardian reported the following passage from Devlin J’s summing up to the jury prior to the publication of the official law report:
“A long course of cruel conduct may be more blameworthy than a sudden act provoking retaliation, but you are not concerned with blame here—the blame attaching to the dead man. You are not standing in judgment on him. He has not been heard in this court. He cannot now ever be heard. He has no defender here to argue for him. It does not matter how cruel he was, how much or how little he was to blame, except in so far as it resulted in the final act of the appellant. What matters is whether this girl had the time to say: 'Whatever I have suffered, whatever I have endured, I know that Thou shall’t not kill.'”[92]
Counsel for Duffy argued that, but for the summing up, the jury might have thought the act was committed in a passion of anger which lasted from the moment Duffy left the room and went to the kitchen right down to the time she returned to the bedroom. Mr Stansfield was clearly the early architect of cumulative provocation, last straw and slow burn arguments. Lord Goddard CJ was not persuaded:
“This was a case where a person might have received an amount of provocation in the way of blows and then went away and armed with weapons before going back and having plenty of time to reflect. Then when the man was lying in bed he was battered until he died. How could that amount to provocation causing a loss of self-control...It was satisfactory to think that a Manchester jury could keep their minds fixed on the law in the matter to such an extent that they did bring in a verdict according to the law in a case in which there was enormous sympathy for the woman.” He went on to say “I cannot help feeling myself that it would have been better if any appeal for mercy for this woman had been at once addressed to the constitutional authority, because the result of an appeal is only to postpone other action in the matter.”[93]
Devlin J. was known to be a religious man.[94] He was a man both of compassion and a firm morality, characteristics which were certainly tested in the Duffy case.[95] In his summing up, his reference to the commandment “Thou shall’t not kill” [96] no doubt had a considerable influence on the jury and would today be a ground for appeal. Rene Duffy’s conviction was upheld by the Court of Appeal (Lord Goddard CJ, Oliver and Cassells JJ) and Devlin J’s definition of provocation was held to be impeccable. Oliver J. said that her act was deliberate.[97] It is worth noting at this point that the mode of resentment no doubt weighed heavily on their minds. Rene Duffy was a woman described by the Court of Appeal as having “armed herself with weapons”. Devlin too had excluded a deadly weapon as an appropriate retaliation to provocation with fists.
Duffy and Mercy
After her appeal against conviction was refused, a petition organised by her solicitor Mr Frank R. Johnson, and supported by 12,000 signatures, including the Lord Mayor of Manchester Alderman, Mary Kingsmill Jones, was sent to the Home Secretary praying for a reprieve from the death sentence.[98] The jury at her trial made a strong recommendation of mercy. Reprieve, the Royal Prerogative of Mercy was exercised by the Home Secretary on the King’s behalf and decisions were made in secret, behind closed doors.[99] Hanging was reserved for the most serious of murders, and in the first half of the 20th century half of those convicted were reprieved.[100] On 5th April 1949, two days before the original date fixed for Duffy´s execution, the Secretary of State announced that the capital sentence would be commuted to penal servitude for life.[101] Once reprieved, she then began her campaign for Conditional Pardon.
On 10th August 1951, Duffy submitted a petition asking for the date of release.[102] The response of the Home Office was sympathetic to her application for early release and on the 24th August 1951, Hetherington wrote in reply, “…having read the memorandum on 952681 (blue file) I certainly think this unfortunate girl has suffered long enough – though prison can hardly have been a worse ordeal than married life for her. She has had nearly two and a half years, and I think this case deserves more lenient treatment than those of Mrs Lynn (18 months) and Elizabeth Rhodes (2 years 2 months).”[103] Duffy served her sentence in Aylesbury Prison and was a model prisoner. The Prison Governor’s report reads like a school report from a kindly head mistress. Duffy was described as being exceptionally reliable, always doing her best, of a reserved nature and of good principles, who made use of the library, was quiet and unassuming, fond of her son and of her family.[104] James Chuter Ede, the Home Secretary, directed that she be released on licence.[105] On November 6th 1951, she was released from Aylesbury prison and reunited with her son.
A suitable case for the CCRC
The importance of this case to the development of the criminal law on provocation is unequivocal, but was the conviction of Rene Duffy for murder a miscarriage of justice by today’s standards? The first murder conviction to be quashed following the setting up of the Criminal Cases Review Commission in 1995 was that of Mahmood Mattan.[106] Mattan was hanged in September 1952 in Cardiff for a murder he did not commit. However, where an appellant committed a crime for which he/she was convicted the court has not felt it necessary to review the conviction where the ground of appeal relies on changes to the law since conviction.[107] The central question pertaining to the Duffy case then is whether the “sudden and temporary” formulation was indeed the law at the time. Counsel for Duffy thought it was not the law. Counsel for Thornton and Ahluwalia submitted it was not. Lord Taylor in Ahluwalia said that the question of changing Devlin’s formulation of “sudden and temporary” was a matter for Parliament.
There is no doubt that in 1949 Rene Duffy’s crime was uncommon and misunderstood. Criminal Statistics for 1949 recorded a total of 68 prosecutions for murder, 99 for manslaughter and 22 for infanticide.[108] Of those tried, women made up for 17 murder prosecutions, 17 manslaughter prosecutions and 21 infanticide prosecutions. Of the 17 women tried for murder, nine were found insane on arraignment, one was acquitted, and three were found guilty but insane. The remaining four were sentenced to death (of which three prisoners including Rene Duffy received a conditional pardon).[109]How many women killed husbands is yet to be researched.
Today, women who kill abusive husbands might be better understood, but the law which deals in general rules still fails to deliver justice to women like Rene Duffy. Following the ruling in Holley, and, in addition, the continuing uncertainty around the interpretation of “sudden and temporary”[110] it is most likely that if Rene Duffy were tried today she would be once again convicted of murder[111] and would serve a minimum term of 15 years.[112] Whilst, for men, it would seem that the old common law rule that where a husband finds his wife in flagrante delicto it is not murder but manslaughter, although criticised,[113] still pertains. In the trial of William Cranston[114] for killing both his wife and friend whom he observed together in some intimacy, the jury returned a verdict of manslaughter.[115]
Parliament is however about to change the law. In December 2008, as part of the Coroners and Justice Bill, the amended proposals of the Law Commission were presented to Parliament. At October 28 2009 the Bill stood as follows. Clauses 48-50 deal with the matter of provocation. Clause 48 provides for the Partial defence to murder: loss of control. It states:
(1)(Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if—
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D’s sex and age, with a normal degree of tolerance and self- restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
For the purposes of subsection (1) (a), it does not matter whether or not the loss of control was sudden. The Government has not embraced the Law Commission’s proposal to remove “loss of self-control” altogether, but Devlin J’s test in Duffy will be abolished (s.41(2)), allowing for a slow burn reaction, as in Ahluwalia. Thornton and in Duffy’s case.[116] Clause 48 (3) reads “In subsection 10 the reference to the circumstanced of D is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self- restraint.” Here, the proposal follows Holley, where the circumstances of the defendant exclude the capacity for self-control. Clause 49 details the meaning of “qualifying trigger” and subsection 3 and 4 are of particular relevance. “(3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person”. (4) “This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which-(a) constituted circumstances of an extremely grave character, and (b) caused D to have a justifiable sense of being seriously wronged.” Furthermore, Subsection (6) (c) reads, “the fact that a thing done or said constituted sexual infidelity is to be disregarded.”
The Bill, if it survives in this form, will be some small step towards delivering justice to abused women like Mrs Duffy who find themselves forced to kill cl.49(4)121 (cl.49(6)(c) that would have protected women from men who use infidelity as an excuse for proprietorial possession did not survive.)[117] There remain problems with what behavioural response the courts will embrace as constituting a loss of self-control cl.50 (4). Mrs Duffy was more desperate and fearful than angry. There also remains a problem with what will pass as a justifiable sense of being seriously wronged cl.50 (5). This demonstrates that the law on provocation will continue to allow both excuses and justifications (moral indignation). As I have said above, provocation is treated both as an excuse and as a justification for action: as an excuse it exempts the person from responsibility such that he was unable to control himself, whilst justification for action depends on the strength of the sense of moral outrage. This will continue to be problematic.[118] As for Mrs Duffy she will, at last, be vindicated as the law was then, and as the law is soon to become.
[1] The Law Journal Vol XCIV p 203, April 15, 1949. I am grateful to Julia Boczko LLB 2009, for researching this source.
[2] CRUELTY TO CHILDREN HC Debate, December 12, 1949 vol 470 cc2431-80 2431 which resolved: “That, in view of the many cases of cruelty and neglect of children who were not included in the terms of reference of the Curtis Committee, this House calls upon the Government to appoint an official committee to inquire into the extent of the evil and make recommendations for effective prevention and remedial treatment.”
(http://hansard.millbanksystems.com/commons/1949/dec/12/cruelty-to-children.)
Cruelty to wives was not discussed until much later in 1976 with the introduction by Jo Richardson of the Domestic Violence and Matrimonial Proceedings Act 1976. (http://hansard.millbanksystems.com/commons/1975/jul/11/battered-wives-rights-to-possession-of).See also R. Chester, and J. Streather (1972) “Cruelty in English divorce: Some Empirical Findings” Journal of Marriage and the Family (1972) 34:706–712.
[3] Law Com. No.173, Partial Defences to Murder, Consultation Paper, October 31, 2003. See also Law Com. Partial Defences to Murder, Final Report, August 6, 2004, para 3.38. J. Gardner, Offences and Defences: Selected Essays in the Philosophy of Criminal Law, Oxford University Press [DATE?}.
B.J. Mitchell, R.D. Mackay, W.J. Brookbank, “Pleading for provoked killers: in defence of Morgan Smith” [2008] LQR Vol 124 [The criminal law in Western Australia, for example, has abolished provocation as a defence. The Criminal Law Amendment (Homicide) Act of 2008 sets out those sections of the Code and associated legislation which have been repealed and replaced. Section 281 has removed killing under provocation and replaced it with “Unlawful assault causing death”.
[4] Homicide Act 1957 s 3.
[5] A requirement of the Homicide Act 1957 s 3. “Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation is enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.”
[6] This requirement followed Duffy [1949] 1 All E.R. 932 Note.
[7] Excepting the situation outlined by Viscount Simon in Holmes v DPP [1946] 2 All E.R. 124, with regard to a man finding his wife in the act of adultery. “Blackburn J. spoke in Reg. v. Rothwell and said: ‘As a general rule of law, no provocation of words will reduce the crime of murder to that of manslaughter, but under special circumstances there may be such a provocation of words as will have that effect; for instance, if a husband suddenly hearing from his wife that she had committed adultery, and he having had no idea of such a thing before, were thereupon to kill his wife, it might be manslaughter.’ ... in R. v. Palmer, when, however, the Court of Criminal Appeal refused to extend the suggested exception to cover the case of a man engaged to be married to a young woman whom he killed when she confessed to illicit intercourse with someone else. Channell J. in delivering the judgment of the court, said that the reason for the exception suggested by Blackburn J. was ‘that a sudden confession is treated as equivalent to a discovery of the act itself.’ In my view, however, a sudden confession of adultery without more can never constitute provocation of a sort which might reduce murder to manslaughter.”
[8] Keating J. in Welsh (1869) 11 Cox C.C. 336, was the first case to coin the term “reasonable man”.
[9] Devlin J. in Duffy [1949] 1 All E.R. 932 Note, used the term “reasonable person”.
[10] See Holmes v DPP [1946] 2 All E.R. 124 where Viscount Simon said “The first is that the application of common law principles in matters such as this must to some extent be controlled by the evolution of society.”
[11] Shakespeare’s ‘Romeo and Juliet’ provide an example of coded provocation between the servants of the Capulets and the Montagues in the following dialogue. Sampson: “I will bite my thumb at them, which is a disgrace to them, if they do bear it”. Abram: “Do you bite your thumb at us, Sir?”
[12] Mason [1912-1913] Cr. App. R. 121.
[13] J. Austin, Philosophical Papers (1961) Oxford University Press 233.
[14] See n 7 above, where Rothwell [1871] 12 Cox C. C. 145, regarded a sudden confession of adultery as equivalent to the discovery of the act itself. This was contrary to Pearson’s case per Parke B. (2 Lew 216, at pp 216, 217) who said it required ocular inspection.
[15] M. Matsuda, C. Lawrence, R. Delgado, K. Crenshaw, (1993) Words That Wound: Critical Race Theory, Assaultive Speech, and The First Amendment, Westview Press, Colorado.
[16] Palmer [1913] 2 K.B. 29. Ellor [1920] All E.R. 475, where the wife saying she was “going to enjoy herself that night” was not enough contra Rothwell [1871] 12 Cox C. C. 145.
[17] (1913) 9 Crim App Rep 139.
[18] See Guardian, September 8 1913, “A Weak minded murderer”, Guardian October 7 1913, Alexander reprieved).
[19]Holmes v DPP [1946] 2 All E.R. 124.
[20] See more recently R v Maksoudian [2008] EWCA Crim 2774.
[21] Manchester Guardian, August 17, 1914.
[22] Saussure, Ferdinand de ([1916] 1983) Course in General Linguistics (trans. Roy Harris) London: Duckworth.
[23] Law Com. No.173, Partial Defences to Murder Consultation Paper October 31 2003, observes (para.4.163): “The defence of provocation elevates the emotion of sudden anger above emotions of fear, despair, compassion and empathy.” See also D. M. Kahan, and M. C. Nussbaum, “Two Conceptions of Emotion in Criminal Law” (1996) 96 Col. L.R. 269.
[24] J. Horder, “Reshaping the Subjective Element in the Provocation Defence” (2005) 25(1) OJLS 127,140.
[25] J. Horder, “Reshaping the Subjective Element in the Provocation Defence” OJLS Vol.25 No.1 2005 127,136. See also Edwards 1996.
[26] S. Edwards, ‘‘Provoking Her Own Demise: From Common Assault to Homicide’’ in J. Hanmer, and M. Maynard (eds), Women, Violence and Social Control (Basingstoke: Macmillan, 1987), p.166. S. Edwards, Sex and Gender in the Legal Process (1996) Blackstone Press, London.
[27] Edwards, Sex and Gender in the Legal Process (1996) p. 391.
[28] Stephen, Sir James Fitzjames, Digest of the Criminal Law, [1st ed., 1877] (3rd ed.) (London: MacMillan and Co., 1883) art. 317.
[29] Hayward (1833) 6 C. & P. 157.
[30] Fisher (1837) 8 C & P 182.
[31] J.Horder, “Reshaping the Subjective Element in the Provocation Defence” (2005) 25(1) OJLS 127.
[32] Duffy [1949] 1 All E.R. 932 Note.
[33] Duffy [1949] 1 All E.R. 932 Note. The proportionality requirement was abandoned by the Homicide Act 1957, although modus operandi has nonetheless been a highly significant feature of the construction of intention see S Edwards. “Ascribing Intention - The Neglected Role Of Modus Operandi – Implications For Gender“ Contemporary Issues in Law (1999/2000) vol 4 iss 3 p.235-256.
[34] Holmes v DPP [1946] 2 All E.R. 124, at 127.
[35] Holmes v DPP [1946] 2 All E.R. 124, at 127.
[36] Kwaku Mensah [1946] A.C. 83.
[37] Camplin [1978] 1 All E.R. 1236.
[38] Lesbini [1914] 3 K.B. 1116.
[39] Camplin [1978] 1 All E.R. 1236.
[40] Thornton [1992] 1 All E.R. 306.
[41] “You are not being asked to consider ‘Did he lead her a miserable life?’, whether you think he did or not on the evidence, nor are you asking yourself ‘Does she deserve sympathy?’, because that is not the issue in the case. .... There are … many unhappy, indeed miserable, husbands and wives. It is a fact of life. It has to be faced, members of the jury. But on the whole it is hardly reasonable, you may think, to stab them fatally when there are other alternatives available, like walking out or going upstairs.”
[42] Hayward (1833) 6 C. & P. 157.
[43] Ahluwalia [1992] 4 All E.R. 889.
[44] Ahluwalia [1992] 4 All E.R. 889 at 896.
[45] S. Edwards (1996) Sex and Gender in the Legal Process, Blackstone Press, London.
[46] R. Holton and S. Shute “Self –control in the modern provocation defence” OJLS (2007) 27. 65.
[47] S. Edwards “Abolishing Provocation and Reframing Self-Defence - the Law Commission’s Options for Reform” [2004] Crim L.R. 181.
[48] Battered woman syndrome evidence (BWSE) is a recognised body of knowledge which has been used in several jurisdictions with a view to assisting the jury in understanding the state of mind of women experiencing or fearing violence who kill their abusers and in assessing the reasonableness of their actions. See S. Edwards (1996) Sex and Gender in the Legal Process Blackstone Press, S. Edwards [1997] “Battered Women - In Fear of Luc’s Shadow,” Denning Law Journal 75-105; C. Dalton and E. M. Schneider, Battered Women and the Law (New York: New York Foundation Press, 2001), Ch.10; S. Edwards, Briefing Paper on Expert Witnesses (Standing Together Against Domestic Violence, Hammersmith, London, 2003), p.7.
[49] In Acott [1997] 1 W.L.R. 306 at 311C, Lord Steyn said that “proportionality was a highly relevant matter to a defence of provocation”.
[50] R.Holton and S. Shute, “Self-Control in the Modern Provocation Defence” (2007) 27 O.J.L.S. 49.
[51] Attorney General for Jersey v Holley, Privy Council [2005] 2 AC 580.
[52] The appellant Holley benefitted from an agreement with the Attorney General that the decision of the Court of Appeal would stand and whatever the PC outcome his conviction for murder would not be re instated. It is worthy of note that there was no such concession for Karimi, R v James; R v Karimi [2006] 1 All E.R. 759 who, but for the slowness of the criminal justice system in hearing his appeal, would have successfully won his appeal (the law in Smith prevailing), instead of serving a life sentence for murder (following the ruling in Holley).
[53] B.J.Mitchell, R.D.Mackay and W.J.Brookbanks “Pleading for Provoked killers: in defence of Morgan Smith” LQR 2008.
[54] Smith [2001] 1 A.C. 146.
[55] A term first used by Lord Goddard C.J., in R v McCarthy, [1954] 2 W.L.R. 1044, said, “In this case it might be enough to say that considering that the judge clearly directed the jury that, whether the prisoner was drunk or sober, the assault and invitation were of a nature which could amount to provocation in law, the only question for the jury was whether the violence used by the appellant as a result of the provocation could possibly be excusable.”
[56] Smith [2001] 1 A.C. 146 at 173.
[57] Archbold Criminal Pleading and Evidence (2003) 19-50 page 1624. Blackstone’s Criminal Practice (2003) B1.19 page 125.
[58] R v Ramchurn [2007] All E.R. (D) 139 (Jun) appeal allowed although not on this basis, R v Mohammed [2005] All ER (D) 154 (Jul) conviction upheld although not related to this point.
[59] Blackstone’s Criminal Practice (2008) Oxford University Press.
[60] See for a detailed discussion S. Edwards (1996) Sex and Gender in the Legal Process Blackstone Press.
[61] I have explored this concept in S. Edwards “Abolishing provocation and reframing self-defence - the Law Commission’s options for reform” [2004] Crim.L.R. pp. 181-197.
[62] This block of corporation flats was demolished in 1978. The area was rebuilt and renamed Chime Bank.
[63] Doctor’s report prepared whilst Duffy was on remand awaiting trial at HM Prison Manchester 21st February 1949 PCOM 9/2141. Duffy Case, the National Archives, Kew, London.
[64] Manchester Guardian ,April 5th 1949.
[65] Doctors report, HM Prison Manchester, 21st February, 1949, PCOM 9/2141. Duffy case, the National Archives, Kew, London.
[66] See Doctors report, 21st February 1949, p 64778 /19. PCOM 9/ 2411. Duffy case, the National Archives, Kew, London.
[67] The Law Journal reported, “The accused wanted to get her child away, but her husband had stopped her; she thereupon left the room where the husband was and went into the kitchen, where she remained for some time; having armed herself with a hatchet and a hammer, she returned to the bedroom, and, while the husband was lying on the bed, she killed him with these weapons.” (My Italics).
[68] Keith Robinson Resident House Surgeon evidence ASS/52/662, page 8 Duffy case file.
[69] George Stewart Smith Evidence Home Office Pathologist ASS/52/662 page 9 case file.
[70] PCOM 9/2411. See doctor’s letter dated 21st February 1949.
[71] Alice Ann Pendlebury Evidence ASS/52/662, page 7 case file. Duffy case, the National Archives, Kew, London.
[72] ASS/52/662. Duffy case, the National Archives, Kew, London.
[73] Duffy Case file statement of the accused page 20.
[74] at trial she was Attended by six female officers four from Holloway and two from Durham. upon conviction a date was fixed for execution for Thursday 7th April at 9.0am at Manchester prison. ASS/52/662 Indictment judgment. Duffy case, the National Archives, Kew, London.
[75] Manchester Guardian, December 9, 1948, “Injured husband dies”. Manchester Guardian, January 6, 1949, “Wife accused of murder”. Manchester Guardian, March 17, 1949, “Wife accused of murder”.
[76] He died the following day at 5pm. Duffy case, the National Archives, Kew, London.
[77] Keith Robinson Evidence House surgeon, ASS/52/662, page 8 case file. Duffy case, the National Archives, Kew, London.
[78] George Stewart Smith Evidence Home Office pathologist, ASS/52/662.page 10.
[79] George Stewart Smith Evidence Home Office pathologist, ASS/52/662.page 9 case file. Duffy case, the National Archives, Kew, London.
[80] Ernest Pedley Evidence Forensic Expert, ASS/52/662, page 4 case file. Duffy case, the National Archives, Kew, London.
[81] Ernest Pedley Evidence Forensic Expert, ASS/52/662, page 4 case file. Duffy case, the National Archives, Kew, London.
[82] Duffy case file p. 15.
[83] Manchester Guardian March 17th 1949.
[84] Alice Ann Russell Evidence ASS/52/662, page 15 case file. Duffy case, the National Archives, Kew, London.
[85] In 1948 public transport provision was via trolley buses. The intermediate ring road was not built until the 1990s and the A57 Hyde Road was a Turnpike Road. Bus routes ran into the city terminus, which would require walking across the city to another bus route stop. Buses would run every 30 minutes, certainly not more frequently.
[86] ASS/52/662 Indictment judgment. Duffy Case File, The National Archives, Kew London.
[87] Manchester Guardian, March 18, 1949,“Girl sentenced to death for the murder of husband.”
[88] In 1949 the grounds for appeal followed the 1907 Criminal Appeal Act.
[89] Prison doctor’s report, 21st February 1949.PCOM 9/2141. Duffy Case File, The National Archives, Kew London.
[90] Prison doctor’s report, 6th September 1951. PCOM 9/2141. Duffy Case File, The National Archives, Kew London.
[91] Prison doctor’s report, 28th September 1951. PCOM 9/2141. Duffy Case File, The National Archives, Kew London.
[92] Manchester Guardian, March 18, 1949,“Girl sentenced to death murder of husband”. Duffy [1949] 1 All E.R. 932 Note at 933.
[93] Manchester Guardian, April 5, 1949.
[94] Patrick Devlin was raised as a Roman Catholic, he joined the Dominican order as a novice leaving after a year. Two of his sisters became nuns and a brother became a Jesuit priest. Rene Duffy was also a Roman Catholic.
[95] Lord Devlin and Lord Scarman had produced a paper, “Justice and the Guildford Four”, which had been sent to the Home Office. The decision was now taken to get a newspaper to publish it. There was only one non-negotiable condition; whatever paper took it must print it in full, with no alteration or emendation. The Times agreed to publish all 4,500 words. [THIS FOOTNOTE DOES NOT SEEM TO BE RELEVANT TO THE ARTICLE AT ALL]
[96] “Thou shall’t not kill” are words only uttered in developing Article 2 on the ECHR see Van Colle and another v Chief Constable of Hertfordshire Police; Smith v Chief Constable of Sussex Police, [2008] 3 All E.R. 977, and life and death issues, for example in wardship and medical treatment Re J (a minor) (wardship: medical treatment) [1990] 3 All E.R. 930.
[97] Manchester Guardian, April 5, 1949.
[98] Manchester Guardian, April 5, 1949.
[99] Devlin J. disapproved of the way in which the Royal Prerogative was applied. See Devlin J “Criminal Responsibility and Punishment, Functions of Judge and Jury|” [1954] Crim. L.R. p 661-686 at 665 “...the prerogative of mercy is now perforce being used in circumstances for which it was never designed, not for the exercise of mercy but for the determination of justice” and described the office of the Home Secretary as an “...extra-judicial tribunal in Whitehall settling matters of life and death”.
[100] R.Turrell “It's a Mystery : the Royal Prerogative of Mercy in England, Canada and South Africa’’
Crime History and Societies Vol 4 no 1 (2000) p 83-101. See also the Royal Commission on Capital Punishment 1949 – 1953 Report (1953) Cmd 8932 at paras. 134–135.
[101] Manchester Guardian, April 6th, 1949. (Penal servitude for life, at that time, was about 12 years).
[102] Prisoners petition referred on 13/8/51 to C Division, Home Office. Duffy case, the National Archives, Kew, London.
[103] PCOM/9/2441, correspondence Home Office, August 24th ,1951. Duffy Case File, The National Archives, Kew London.
[104] Prison Governors- Joan Martyn’s report, 31st August 1951, PCPOM 9/2141 Duffy Case File, The National Archives, Kew London. See also Rowett C, Vaughn P, “Women and Broadmoor: Treatment and control in a special hospital” in B. Hutter and G.Williams (eds) Controlling Women (1981)Croom Helm.
[105] James Chuter Ede. See also Manchester Guardian, April 12, 1949, “King’s pardon sought”, Manchester Guardian, April 25, 1949, “No kings pardon for Mrs Duffy”.
[106] September 1, 1996, Mattan 24/02/1998.
[107] Ruth Ellis was hanged on July 13th 1955, for the murder of David Blakely, her lover. On 8th December 2003, the CCRC upheld her conviction.
[108] Criminal Statistics 1949 Cmd 7993 Table 111 p. 32.
[109] [Criminal Statistics 1949 Cmd 7993] [USE IBID] Table XXI p.90.
[110] The Law Commission is of the view that is [IF] provocation is to apply to women who face violence from abusers then ‘sudden and temporary’ should be removed.
[111] [2007] EWCA Crim 2264. Stephanie Williams who picked up the steak knife on the table at which she was sitting as she was waiting to be served in a restaurant and stabbed her partner. [SO WHAT?]
[112] Criminal Justice Act 2003 s 267, SCHEDULE 21
[113] See Coroners and Justice Bill, July 2009
[114] See the case of William Cranston Leighton Buzzard Observer July 23rd 2009.
[115] 7 July 2009 : Column 587 Hansard Lords Debates, Lord Thomas of Gresford: The noble and learned Baroness the Attorney-General did not mention the fact that juries control the situation in a murder trial where the provocation defence is run. They set the standard, and it changes over the years as people’s views change. I am sure that, 30 or 40 years ago, catching the spouse in flagrante delicto was treated as a much more aggravating feature than it might be today
[116] Wasik, “Cumulative Provocation and Domestic Killing” [1982] Crim. L.R. 29.
[117] Lords Report STAGE 26.10.2009
[118] J.L. Austin, “A Plea for Excuses” in Philosophical Papers, 2nd edn (1961), pp.124-152; Edwards, Sex and Gender in the Legal Process (1996), pp.395-399.
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