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Interesting summary of the case and JFW here:
http://innocent.org.uk/misc/jfw.html
It appears she shot him whilst he was asleep. No mention of whether she went to the police in the past, but I doubt it as the prosecution appear to have said she exagerated or made up her claims of rape and abuse.
It's important to note that the defence of provocation doesn't just require 'provocation'. It basically has to be shown that someone snapped as a result of that provocation. The usual words used are "sudden and temporary loss of self-control".
The important development in the early 1990's (the case was R -v- Ahluwalia, heard in 1992, rather than the mid-1990's as suggested in the above article) when the Court of Appeal accepted that this could occur on a 'slow-burn' reaction type case - such as with battered wife syndrome after years of abuse.
It is also necessary that this is a reasonable loss of self-control. There have been a number of cases since arguing about what is taken into account when determining whether the loss was 'reasonable' - I won't bore you with it here (mostly to do with the individual's personal characteristics, such as psychiatric problems or low intelligence). Mostly the battered wives don't deal with that question as the women are generally just ordinary (i.e. normal intelligence and no psychiatric problems outside of battered wives syndrome itself).
In practice (from friends at the criminal bar) I understand the big question for these cases is usually whether there was pre-determination on the part of the killer. Such pre-determination would automatically rule out provocation as a defence, as it shows that it was not a sudden loss of control. This leaves the issue of the husband being asleep in a rather odd state:
(i) She waited until he was asleep - because she was determined to kill him or because she took that long to 'boil over'?
It's not a great position to be arguing from for a defendant.
NB. The appeal appears to have been allowed, at least in part, on the basis of new evidence of the effect of the battering on Ms Smith. This could mean (I'm not saying it does, but it could) that the original verdict was perfectly sound on what was available at the time. I don't know - I haven't read the judgment of the Court of Appeal or the new evidence. |
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