Memory, Imagination, Justice

Intersections of Law and Literature

David Gurnham

• Publisher: Routledge
• Year: 2016
• eBook ISBN: 9781317097532
• Topic: Law
• Subtopic: Law Theory & Practice
• Index: Law

Through the creative use of literary analysis, Memory, Imagination, Justice provides a critical and highly original discussion of contemporary topics in criminal law and bioethics. Author David Gurnham uses popular and classical texts, by authors including Shakespeare, Dickens, Euripides, Kafka, the Brothers Grimm, Huxley and Margaret Atwood to shed fresh light on such controversial legal and ethical issues as passionate homicide, life sentences, child pornography and genetic enhancement. Gurnham's overarching theme is the role of memory and imagination in shaping legal and ethical attitudes. Along this line, this book examines the ways in which past wrongs are remembered and may be forcefully responded to, both by the criminal justice system itself and also by individuals responding to what they regard as gross insults, threats or personal violations. The volume further discusses the role of imagination as a creative force behind legal reform, in terms of the definition of criminal behaviour and the possible future development of the law. These ideas provide a useful and highly original perspective on contemporary issues of crime and society as they resonate both in legal and literary discussion.

PART 1 Memory, or Ghosts of Violence Past

DOI: 10.4324/9781315594934-2

Chapter 1 ‘My thoughts be bloody, or be nothing worth!’ Hamlet, Hot Blood and Malice Aforethought

DOI: 10.4324/9781315594934-3

In the melancholic, brooding young Hamlet, Shakespeare invites us to reflect on the way we respond or ought to respond legally and morally to acts of violence. When do we, and when ought we to, attach the damning label of ‘murderer’ to someone who has killed intentionally and subject them to the harshest punishment, and when do we feel that such a judgment is too much? Hamlet is of course recognized both as more than a revenge play inasmuch as it offers a more satisfying account of the character of the affected avenger than Kyd’s The Spanish Tragedy or Middleton’s The Revenger’s Tragedy, and also as less than a revenge play: after all, for reasons much debated over the centuries Hamlet arguably never actually gets around to avenging the death of his father at all. Apart from what critics have tended to regard as the ‘central question’ of Hamlet’s hesitation, there is the portrayal of violence itself and responses to it as a moral issue. In this chapter I want to examine this portrayal in Hamlet against the legal context of early modern English criminal law into which the play first emerged, as a means of approaching the distinctions in our own moral and legal thinking between ‘hot’ and ‘cold’-blooded killing. The metaphor of the heating of a killer’s blood permeates both the play and the development of the laws of intentional homicide since early modern times, and in particular the emergence of the provocation defence. In the play, a Ghost claiming to be that of Hamlet’s murdered father and the former king of Denmark, commands the young man to avenge his untimely death. Along the way he also commits a number of acts of hot-blooded killing in response to perceived and actual threats, affronts and outrages. I hope to show in this chapter and the next that what emerges from an analysis of dramatic representations of killing is a critical perspective on the moral and legal understanding of murder (an intentional killing with malice aforethought) and provoked manslaughter (intentional killing that lacks malice aforethought). The evolution of the meaning of the expression ‘malice aforethought’ is central to my discussion, and in particular to the significance for modern understandings of intentional homicide of the early sixteenth century understanding of murder as only those killings that involved actual premeditation. In both this chapter and the next, this analysis of the meaning of ‘malice’ as an indicator of murder (as opposed to mere manslaughter) in early modern law leads on to dealing with the central analysis of current criminal legal formulations of voluntary manslaughter: intentional killings that lack malice that are, at the time of writing, represented in English and US law by the defence of provocation. In the UK, the Government has announced that it intends to abolish the provocation defence during the next Parliamentary session and so in these two chapters I also examine the Ministry of Justice’s (2008, 2) proposals for two new partial defences to replace provocation: the (not very) elegantly named ‘killing in response to a fear of serious violence’ and ‘killing in response to words or conduct which caused the defendant to have a justifiable sense of being wronged’. In this chapter I focus specifically on the historical idea of malice aforethought as the absence of hot blood that would excuse a killing and save a defendant from the gallows in early modern England, and compare two inheritors of this distinction, namely the provocation defence in modern English and US criminal law. I argue here that, unlike the much more general formulation of the ‘emotional’ aspect of the defence in America as any kind of extreme heated passion, the requirement in English law (and to be preserved in an altered form according to the reform proposals) for a defendant to have at the material time suffered a ‘loss of self control’ in response to a particular kind of triggering behaviour on the part of the victim, is unduly narrow. I shall argue here that the narrowness of this formal requirement of the English defence seems to be out of step with the way juries apply the defence to excuse any defendant who simply seems not to have killed with malice sufficient for murder. What this curious jury behaviour means is that, like the audiences of Shakespeare’s plays who are invited to watch and judge the violence represented on stage, juries seem to look not for a specific set of excusing criteria in murder cases, but rather at the moral character of the events as a whole.

1. ‘Loss of Self-control’ and ‘Heat of Passion’: The Emotional Basis for a Defence for Provoked Homicide

It is the case in the modern law of murder both in England and the US that the prosecution must show that the defendant killed with ‘malice aforethought’. In early modern England, malice aforethought could be found in two ways, as the seventeenth century Chief Justice Edward Coke (1797, 47) stipulated, ‘either expressed by the party, or implied by law’.¹ In other words, murder was a killing that involved premeditation (express malice), and if evidence of premeditation were lacking but the defendant had demonstrated wanton cruelty or undue preparedness to use lethal violence, then they could be treated as if this violence was premeditated (implied malice). Although the expression ‘malice aforethought’ has survived into modern times, it is now understood in English law to mean simply ‘intention’ to kill to or to inflict serious bodily harm, no matter what the motives or level of planning, and so on. In fact it does not intend to imply any prior thought or premeditation at all, ensuring that both planned and spontaneous killing is treated as murder if it is carried out intentionally, whether by specific intent (purposeful, deliberate) or oblique intent (foresight of death or serious injury as a virtual certainty) (R v Woollin, R v Matthews and Alleyne). Since 1965 all murders (as opposed to manslaughters) are punished by the mandatory life sentence and premeditation is relevant only in deciding the meaning of ‘life’ imprisonment for particular cases. According to the Criminal Justice Act 2003, a murder committed with ‘a significant degree of planning or premeditation’ is the first aggravating factor for judges to consider in deciding the minimum term of imprisonment before parole may be considered.² The same legislation stipulates that where a defendant has been found guilty of murdering two or more persons with ‘a substantial degree of premeditation or planning’ then it is to be considered to be ‘exceptionally serious’ and hence worthy of a whole life order without any chance of parole.³ In contrast, whereas English law has levelled the distinction between premeditated and spontaneous intentional killings, other jurisdictions that inherited the English common law system (and hence share the archaic expression ‘malice aforethought’ used by Coke CJ (1797, 47)) continue to show strong traces of the early modern significance accorded to premeditation. For example, in the US, premeditation and deliberation are together the distinguishing features of first-degree murder (State v Texierira). Most state criminal codes therefore define first-degree murder as requiring evidence of planning or reflection before carrying out the act. This is described in the codes as, for example, ‘wilful, deliberate, and premeditated killing’ (Virginia), ‘deliberately premeditated malice aforethought, or with extreme atrocity or cruelty …’ (Massachusetts), ‘killing by means of poison, or by lying in wait, or by any other kind of wilful, deliberate and premeditated killing’ (Pennsylvania). Generally, though not always, understood to require more than simple intention, US courts have held that premeditation for first-degree murder means that before committing the homicide, the defendant actually formed a plan to kill having had time to reflect and deliberate coolly on it (Walker v State, State v Morton).⁴ US courts have not been consistent on the length of time necessary for intent to amount to premeditation, and the lack of agreement on this point suggests that the meaning of malice aforethought itself has become obscure. However it seems that generally speaking, where state laws require proof of premeditation before a jury may return a verdict of first-degree murder, the jury need only be satisfied that there is evidence of some prior reflection, no matter how brief (People v Halvorsen).

1 First published in 1641. 2 Schedule 21, 10 (a). 3 Schedule 21, 4. (2) (a) (1). 4 e.g. ‘a plan to murder … formed after the matter had been the subject of deliberation and reflection’, Commonwealth v Burgess at 432.

In this section I shall discuss the English and American understandings of malice aforethought, the flesh on the bones of the general legal principles provided by the English case of John Dickie Baillie in the Court of Appeal (R v Baillie) and the US case of Eugene Goforth in the Georgia Supreme Court (Goforth v State). As I shall argue, our moral and legal responses to the violence used by the defendants in cases turns upon when and why we find a killing to be malicious, or in other words when we believe there are good reasons to find that a killing was committed with malice or not. I shall argue that there are useful lessons to be learned from reflecting early modern approaches to determining malice aforethought: either expressly through finding premeditation and an absence of heated blood, or else by implying it as a proper response to a cruel or patently unnecessary use of violence. In the first section below I argue that in fact, the English criminal courts have already shown themselves to be prepared to treat the legal requirement of a ‘loss of self-control’ as a fiction in order to allow defendants to use the provocation defence even although, according to the formal requirements of the law, they ought to be convicted of murder. I argue that there is evidence to show that juries are using a broader moral sense to ensure that defendants who they feel have used lethal force out of fear, terror, panic or desperation – none of which is a recognized basis for a provocation defence in English law – are convicted of manslaughter rather than murder.

The Modern Provocation Defence: Premeditated Killing Filtered Out Using the Fictional Device of ‘Loss of Self-control’

In most jurisdictions, provocation as a legal category is a partial excuse to murder and thus represents a point halfway between the worst form of killing and full acquittal; a person found to have been provoked into killing is convicted of (voluntary) manslaughter. Under English law, a person cannot be charged directly with voluntary manslaughter; rather, this verdict is returned when, on a charge of murder, the jury finds that the killing was provoked.⁵ In the US, the trial judge decides whether or not to put a voluntary manslaughter charge to the jury for consideration, in addition to any other relevant categories of homicide. In both the US and in England, provocation is by definition antithetical to premeditation, and so contains conditions that ensure that, if the defendant laid in wait for his victim or acted with calculated cruelty or a desire for revenge, then the defendant will be found guilty of murder. In the US, the emotional aspect of the provocation defence is based on the finding of ‘heated blood’ or ‘heated passion’: an archaic idea, the meaning of which is not very different to the idea of hot blood that in the sixteenth century English common law denoted the absence of malice aforethought expressly formed. In fact, the similarity between the idea of heated blood in the US courts and its meaning in early modern England is striking. For the US courts, the defendant’s heated blood (coupled with a recognized cause for such passion – discussed in the next chapter) marks the distinction between killings that are merely intended and those that are intended with malice. A formulation of voluntary manslaughter in the US was provided in this recent judgment in the Supreme Court of South Carolina as …

… the unlawful killing of a human being in the heat of passion upon sufficient legal provocation. Both heat of passion and sufficient provocation must be present at the time of the killing. The provocation must be such as to render the mind of an ordinary person incapable of cool reflection and produce an uncontrollable impulse to do violence. (State v Cooley per Toal CJ 67)

5 The trial judge must allow a jury to consider the defence of provocation and thus a verdict of manslaughter by provocation if there is any relevant evidence. I shall not be discussing defences for those who are judged to have been unfit to have their actions judged against the so-called ‘reasonable man’, and would therefore not have capacity-denying defences such as insanity, diminished responsibility, non-insane automatism, intoxication or infanticide.

In Massachusetts, voluntary manslaughter is defined rather poetically as ‘a sudden transport of passion or heat of blood, upon reasonable provocation and without malice, or upon sudden combat’ (Commonwealth v Burgess, per Crown J, 438). The Official Code of Georgia Annotated requires the defendant to have acted ‘solely as the result of a sudden, violent, and irresistible passion …’. In Arkansas, the criminal law formerly referred to ‘sudden heat of passion’, until 1975 when the criminal code replaced this with the phrase ‘extreme mental or emotional disturbance’, though the meaning of the phrases has been held by the Arkansas Supreme Court to be equivalent (MPC s.219.3, Bankston v State 129).⁶ It has been recognized in various states that the heating of the blood may be caused by intense rage (as in the current English law that the government intends to repeal), but also other extreme emotions such as fear or terror (Bankston v State 128). English law stopped referring to the heating of blood in the nineteenth century as the criminal courts sought to distance the defence from older attitudes that regarding the honourable violent response to an affront.⁷ Instead of the broad and semi-justificatory archaic idea of heated passion, the current English formulation of the defence of provocation derives from nineteenth century ideas about the mind and so refers to the much narrower requirement of a ‘loss of self-control’. This idea that conveys not a general intensifying of emotions but rather an utter loss of normal composure specifically as a result of uncontrollable rage:

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 was 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. (Homicide Act 1957 s.3)

6 Some critics have argued that this formulation of the emotional requirement of provocation shows that American law is unduly lenient towards abusive men who kill their spouses out of jealous rage, for example Caroline Forell (2006) to whom we return in the next chapter. 7 See R v Hayward (1833) per Tindal CJ 159: court should consider whether the defendant had temporarily ceased to be ‘master of his own understanding’ or whether ‘there had been time for the blood to cool and for reason to resume its seat’.

This formulation needs to be compared to the Government’s proposed new partial defence to murder that is intended to replace provocation. Under the new proposals, a defendant (D) will have a partial defence to murder if the following three conditions are met:

Cl. 1 (1) (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. (Ministry of Justice 2008, 33)

Like the American formulations cited, the English defence thus contains both an emotional requirement and a justificatory/moral one and both differ fairly significantly from the equivalent requirements in the US. On the emotional aspect, the current English requirement of a ‘loss of self-control’ has been interpreted in the courts as requiring ‘sudden and temporary’ uncontrolled anger (R v Duffy),⁸ which is more specific than the American notion of ‘heated blood’ or ‘heated passion’. Under the new proposals this requirement of suddenness will be dropped, but otherwise the ‘loss of self control’ requirement will be retained as a safeguard against misuse of the defence by those who kill out of considered revenge (Ministry of Justice 2008, 13) The ‘trigger’ referred to in the new proposals must either be D’s ‘fear of serious violence from V [victim]’ (Cl. 1 (1) (5)) or else words or actions from V that amount to circumstances of an extremely grave character that ‘caused D to have a justifiable sense of being seriously wronged’ (Cl. 1 (1) (6) Minisrty of Justice 2009, 12). The new proposals for the homicide laws of England and Wales represent a significant cultural and moral shift in terms of legislative attitude towards anger as the emotional basis for a partial defence. If the Government’...

Table of contents

• Cover Page
• Half Title Page
• Dedication
• Title Page
• Copyright Page
• Table of Contents
• Table of Cases
• Table of Statutes
• Introduction
• Part 1: Memory, or Ghosts of Violence Past
• Part 2: Childhood Innocence, or the Frozen Present
• Part 3: Imagination, or Ghosts of Violence Yet to Come
• List of References
• Index