Inglis, R v

A defence of provocation cannot be left to a jury without evidence that the defendant lost self-control. Deliberate, sustained and carefully planned conduct directed to killing is inconsistent with that essential ingredient.

A killing motivated by familial love or a genuine belief that death is merciful remains murder unless an established partial defence applies. In sentencing a genuine mercy killing under Schedule 21 of the Criminal Justice Act 2003, planning, vulnerability and abuse of trust should not also aggravate the offence where they are inherent in the mercy-killing context. The court must nevertheless assess the offender’s whole motivation and culpability.

The appellant injected her severely disabled adult son with heroin in September 2007, causing cardiac arrest, and was charged with attempted murder. While on bail subject to a condition that she must not visit him, she gained access to him in November 2008 and administered a fatal dose of heroin.

At the Central Criminal Court, she was convicted of attempted murder and murder. The trial judge withdrew provocation from the jury because there was no evidence capable of supporting it. A mandatory life sentence was imposed for murder, with a minimum term of nine years less time spent on remand.

She sought leave to appeal against conviction and appealed the minimum term. The issues were whether provocation should have been left to the jury and how a genuine belief that the killing was merciful affected sentencing.

1. The court rejected the application for leave to appeal against conviction. It was unnecessary to decide whether the matters relied on by the appellant were capable of amounting to provocative conduct under section 3 of the Homicide Act 1957. There was no evidence that, when she administered the fatal heroin injection, she had lost self-control. Her conduct instead showed a long-settled objective, meticulous planning and complete control directed to ensuring her son’s death.

2. The court emphasised that compassionate motivation does not prevent intentional killing from being murder. The law draws no distinction between murder for malevolent reasons and murder motivated by familial love. A severely disabled person remains fully protected by the law, and no person may actively terminate that life. Subject to stringent conditions, withdrawal of life-sustaining treatment is legally distinct from active termination of life. Reform of mercy killing, euthanasia or assisted suicide was a matter for Parliament.

3. The mandatory life sentence could not be disturbed. Under section 269 and Schedule 21 of the Criminal Justice Act 2003, the court began with the applicable statutory framework and considered aggravation and mitigation. In a genuine mercy killing, the factors in paragraph 10(a), (b) and (d)—planning, vulnerability and abuse of trust—will commonly be inherent in the offence. They should not aggravate the sentence, because otherwise the express mitigation in paragraph 11(f), namely the offender’s belief that the murder was an act of mercy, would have little practical effect.

4. That conclusion did not remove the need to examine the offender’s motivation as a whole. The appellant’s depression and post-traumatic stress disorder reduced her culpability, and prolonged stress was also mitigating under paragraph 11. However, her culpability was not extinguished. She had formed an early and fixed intention to kill, deceived others to obtain access, disregarded the views of the victim’s family and carers, and her first attempt had worsened his condition.

5. The appeal against sentence was allowed. The minimum term was reduced from nine years to five years, subject to the credit already ordered for time spent on remand.

• Court of Appeal (Criminal Division) — In [2010] EWCA Crim 2637, the court rejected the challenge to conviction and reduced the minimum term for murder from nine years to five years.

• Central Criminal Court — On 20 January 2010, the appellant was convicted of attempted murder and murder. The trial judge withdrew provocation from the jury and imposed the mandatory life sentence, with a minimum term of nine years less time spent on remand.