Mercy Killing, Partial Defences and Charge Decisions: 50 Shades of Grey
| Author | Amanda Clough |
| DOI | 10.1177/0022018320914687 |
| Published date | 01 June 2020 |
| Date | 01 June 2020 |
| Subject Matter | Articles |
Article
Mercy Killing, Partial
Defences and Charge
Decisions: 50 Shades of Grey
Amanda Clough
Northumbria University, UK
Abstract
The revolution of the partial defences to murder by the Coroners and Justice Act 2009 may
have had a catastrophic impact on cases of mercy killing.
1
While previously shoehorned into
the diminished responsibility plea, the medicalisation of this defence may prevent such a ploy.
However, a recent case has offered insight into the circumstances which may still result in a
manslaughter conviction for mercy killers through a new avenue previously thought imper-
missible. This article will discuss the case and those similar, alongside charging decisions and
just results. Mercy killing remains a grey area in the criminal justice system, but is there light at
the end of the tunnel?
Keywords
Murder, voluntary manslaughter, mercy killing, plea bargains, partial defences, loss of control,
diminished responsibility
Mercy Killing and Partial Defences
Murder has long been established as the intentional killing of another human being—the intentional
requirement being that actions will kill or cause serious harm at the very least. Criminal law in England
and Wales does not concern itself with the reason for such an intention to end the life of another. This
makes it incredibly difficult to proceed in cases which are driven by compassion.
There are partial defences which seek to reduce a conviction to manslaughter, when the criteria for
murder are present but there are exceptional circumstances born of emotion or abnormality of mental
functioning.
2
These are diminished responsibility
3
and loss of control.
4
Both received a rigorous
Corresponding author:
Amanda Clough, Northumbria University, Newcastle upon Tyne, UK.
E-mail: a.clough@northumbria.ac.uk
1. A Clough, ‘Mercy Killing: Three’s a Crowd?’ (2015) 79(5) J Crim L 358–72.
2. There is also a partial defence relating to suicide pact, but this will not be discussed in this work.
3. Section 52 Coroners and Justice Act 2009.
4. Sections 54–55 Coroners Justice Act 2009.
The Journal of Criminal Law
2020, Vol. 84(3) 211–227
ªThe Author(s) 2020
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DOI: 10.1177/0022018320914687
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overhaul 10 years ago, mostly due to concerns with the old provocation defence (predecessor to loss of
control) being gender biased and inadequate due to a hierarchy placing anger above other emotions. This
made the partial defence accessible to angry and jealous defendants but not those acting from fear or
desperation.
5
The subsequent sweeping up of diminished responsibility to be included in this revolution
to archaic homicide defences was unnecessary—there was little concern over the operat ion of this
defence, which merely needed some clarity.
6
Why is this problematic? The criminal law is often altered to keep up-to-date with ever-changing
societal norms and standards. Provocation had significant problems that needed to be addressed, most
notably that the defence conceded to jealous and angry men, while ignoring the plight of domestic abuse
survivors who killed their abused after years of torment.
7
Diminished responsibility did not have such
serious issues. In particular, the vague terminology was useful to encompass cases such as mercy killing
cases stemming from depression or a highly emotive state. This is an act of compassion, ending the life
of a loved one who is suffering, in pain and distressed.
8
Often referred to as a ‘benevolent conspiracy’,
9
this allowed compassion to enter the courtroom as it did the defendant’s actions.
10
The strict new
structure of diminished responsibility requires the defendant to be suffering from a recognised medical
condition at the time of the fatal act, so continuing to stretch the defence to accommodate mercy killers
might prove difficult. Gibson speculates that because the need to lessen the label and the sentence for a
mercy killer remains, so must the ‘charitable accommodation of these offenders’, with this ‘supervening
over legal integrity’.
11
Even though the pragmatism for a partial excuse that reflects moral culpability in
such situations remains, that does not mean the defence continues to be accessible by default. Arguably,
the mandatory life sentence of a murder conviction would seem disproportionate to the social heinous-
ness of a genuine mercy killing case, and a separate offence or defence as recommended by the Law
Commission would have been wise, but without this the court’s hands are likely tied.
12
The new diminished responsibility plea requires a much more rigid application of the law, initially
stemming from a ‘recognised medical condition’.
13
In many cases, a close relative suffering from a
terminal illness may cause depression to form and be diagnosed in the accused, making a diminished
responsibility plea a possibility, but this will not always be the case nor the reason for such drastic
actions. The present author has previous advocated for, instead, an extension to the new partial defence
of loss of control—a defence based on emotions. Presently, the defence covers the emotions of fear or
anger which causes the accused to lose control and act as they did, alongside an objective limb allowing
the notion of the ‘reasonable man’ to remain a yardstick for social standards.
14
Adding the emotion of
compassion as a third limb to the defence would allow mercy killing cases a new avenue for reducing a
murder charge to manslaughter.
15
This would also allow a consistency in application that does not rely
on the generosity of medical experts.
16
5. For example, R v Ahluwalia (1993) 96 Cr App R 133.
6. R Mackay, ‘The New Diminished Responsibility Plea’ (2010) Crim LR 290, Law Commission (2006) No 304. Report on
Murder, Manslaughter and Infanticide.
7. For example, R v Ahluwalia (n 5), R v Thornton (1996) 1 WLR 1174, see also A Clough, ‘Battered Women: Loss of Control
and Lost Opportunities’ (2016) 3(2) JICL 279–316.
8. This is distinguished from assisted suicide.
9. Mackay (n 6) 295.
10. See C Foster, ‘Mercy Killing: All Change of Business as Usual’ (2006) 156 LJ 48–52.
11. M Gibson, ‘Pragmatism Preserved? The Challenges of Accommodating Mercy Killers in the Reformed Diminished
Responsibility Plea’ (2017) 81(3) J Crim L 177–200, 178, 198.
12. Law Commission (2006) No 304. Report on Murder, Manslaughter and Infanticide, 7.7.
13. Section 52 Coroners and Justice Act 2009.
14. Section 54 Coroners and Justice Act 2009.
15. Clough (n 1).
16. See Gibson (n 11) 193.
212 The Journal of Criminal Law 84(3)
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