R v. Helen Titchener
1. I have been asked to advise those instructing urgently in relation to their client Helen Titchener, who has been arrested on suspicion of a serious crime of violence against her husband, Robert. At the time of writing matters are still a little unclear, but Mrs Titchener believes she has killed her husband by stabbing him with a kitchen knife. It seems likely, though not certain, that he will have been certified dead on arrival at Borchester Hospital. Those instructing expect to be representing Mrs Titchener in the police station where she is expected to be interviewed sometime after 19.00 hours this evening.
2. Because this advice is required so urgently I will not trouble those instructing with a detailed recital of what I have been told is the unhappy history of the Titcheners’ relationship. It suffices to say that in recent months their marriage had become increasingly strained and (at any rate as far as Mrs Titchener was concerned) unhappy. Mrs Titchener is heavily pregnant, and it seems that this has been used by Mr Titchener as a means of exerting ever increasing emotional control over her. Indeed, such had been the level of control that she had even, at times, begun to doubt her own sanity, and had recently sought treatment from a psychiatrist.
3. The tragic incident leading to Mr Titchener’s probable death occurred at around 19.15 hours yesterday evening. It seems that after months of domestic abuse Mrs Titchener had finally determined to leave the home they shared, taking her young son Henry – Mr Titchener was not Henry’s biological father – with her. Her plans were so well advanced that she had packed a suitcase containing her essential requirements.
4. Her original plan had been to tell Mr Titchener of her plans over dinner – a tuna bake. She appears to have faltered in her resolve, and the two ate the tuna bake together. However, before they ate the pudding that she had also prepared, a bad-tempered argument broke out and Mrs Titchener told him that she was going to leave.
5. Mrs Titchener’s instructions are that this enraged Mr Titchener still further, who picked up a knife, placed it in her hands and – in effect – challenged her to stab herself. He said – or rather shouted – words to the effect that “that is the only way you will be leaving me,” together with numerous other hurtful and wounding insults. I understand that Henry – who had been asleep upstairs – then appeared, no doubt disturbed by the shouting, and Mr Titchener started shouting at him as well. Mrs Titchener has so far been too distressed to give a fully coherent account, but my understanding is that there was then a scuffle, during the course of which Mr Titchener received one or possibly 2 stab wounds which left him apparently lifeless on the ground. Those instructing have been unable to take any very detailed instructions on the point but it seems that immediately before he was stabbed, Mr Titchener shouted “give me the knife Helen.”
6. Mrs Titchener was extremely concerned for Henry, who appears to have witnessed much of the incident. She put him in a different room with a DVD to watch and then telephoned a friend, to whom she confessed that she had stabbed, and probably killed, Mr Titchener. I assume that either the friend or Mrs Titchener then called the police, though I have no instructions on the point.
7. It is unfortunate that her first action was not to call for an ambulance for Mr Titchener, but perhaps understandable that a mother’s first thought would be to safeguard the welfare of her child.
8. Although Mr Titchener’s death has yet to be confirmed, all the indications at this stage are that he died shortly after he was stabbed by Mrs Titchener. Preliminary information is that he received two stab wounds to the abdomen and this Advice is written on that basis.
9. If Mrs Titchener stabbed Mr Titchener with the intention of killing him or causing him serious injury, and death has resulted from the stab wound or wounds then – subject to a complete or partial legal justification for the killing – she is guilty of murder.
10. As those instructing are well aware, the only possible sentence allowed by law is life imprisonment, although the court is required to set a minimum term of imprisonment which must be served before she is eligible for release on parole. It is, of course, not inevitable, indeed it is uncommon, for those serving life sentences to be released as soon as they become eligible for release. They must satisfy the parole board that they will not pose any danger to the public. Moreover, even after release anyone serving a life sentence can be recalled to prison at any time.
11. I have been specifically asked to advise as to the probable minimum custodial term that is likely to be imposed should Mrs Titchener be convicted of murder. On the very limited information available to me at the moment I would advise that it should not be more than 15 years, and – particularly if she were to plead guilty at the earliest possible stage – that it could be significantly less. Had Mrs Titchener deliberately armed herself with the knife this would be regarded as a seriously aggravating feature, but it seems that it was actually placed in her hands by the deceased himself. There are also a number of significant mitigating features: she acted after a period of prolonged stress, and it seems that she was – at least to an extent – in fear of violence from Mr Titchener. I am instructed that Mrs Titchener had in fact complained to at least one other person of previous acts of emotional cruelty as well as physical and possibly sexual violence in the past.
12. Of course Mrs Titchener could not be convicted of murder unless the prosecution could prove that she intended to cause her husband at least serious injury, if not to kill him. Although premeditation is not a necessary requirement for murder (the necessary intent can be formed in a split second), the fact that the incident itself appears to have been fast moving with very little time for reflection could make it harder to be sure that she did in fact give any thought at all to the consequences of her actions. If she did not do so then she would not be guilty of murder but of manslaughter.
13. It would, however, be a very unusual case in which a person stabbing somebody could not be said not to intend serious harm. I think there are other routes which offer Mrs Titchener a far greater chance of being acquitted of murder.
Loss of Control
14. In my opinion Mrs Titchener’s best chance is to rely upon the defence of what is known as “loss of control.” This is a statutory defence which can reduce what would otherwise be murder to manslaughter. It has replaced the common law defence of “provocation”. I cannot do better than set out the relevant part of S.54 of the Coroners and Justice Act 2009, which provides:
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.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
(3) In subsection (1)(c) the reference to “the circumstances 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.
15. Once sufficient evidence of “loss of control” is raised, it is for the prosecution to disprove the defence beyond reasonable doubt. Should the defence succeed it will reduce what would otherwise be murder to manslaughter. Crucially, there is no mandatory sentence for manslaughter.
16. On current instructions I think a jury is likely to be sympathetic to Mrs Titchener. She is a lady of impeccable character with no obvious motive to kill Mr Titchener. There seems no reason to doubt that she did so in a moment of extreme anguish. Nevertheless sympathy alone will not result in a favourable verdict. She must show that there was a “qualifying trigger” before the defence can even be left to the jury. The only permissible such triggers are that Mrs Titchener lost her self control as a result of either:
(i) fear of serious violence from the victim; or
(ii) to something said or done which:
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
Assuming the existence of a “qualifying trigger” it will then be a matter for the jury to decide whether “a person of her sex and age, with a normal degree of tolerance and self restraint” might in the same circumstances have reacted in the same or in a similar way.
17. The real difficulty is in deciding whether a “qualifying trigger” existed. Of course, if Mr Titchener was actually threatening her with the knife there is no problem. Not only would that be the “qualifying trigger” of a threat of serious violence, it might even open up the possibility that she acted in lawful self-defence (see below).
18. However, even if there was no immediate threat from Mr Titchener, a jury would be entitled to consider the whole history of their relationship in deciding whether his actions before his death constituted circumstances of an “extremely grave character” which caused Mrs Titchener “to have a justifiable sense of being seriously wronged.”
19. Unlike the previous law of provocation, the defence of loss of self-control is open even where the loss of self-control is not “sudden.”
20. Evidence of previous acts of domestic violence or controlling behaviour would be admissible in her defence. An angry outburst involving a knife from a controlling husband who has previously assaulted and (possibly) raped his wife is a very different matter from an otherwise kind and peaceable husband losing his temper for the first time. In my view it will be open to Mrs Titchener to argue that a “normal” woman in her position might have reacted in the same way had she been subjected to the months of domestic abuse.
21. Should the defence succeed Mrs Titchener will almost certainly still receive a prison sentence, but there are grounds for cautious optimism about its length, and even some possibility that it could be suspended.
22. There are at present no official sentencing guidelines for manslaughter by reason of loss of control. However, there are 2005 Sentencing Guidelines for manslaughter on the grounds of provocation which provide a useful guide to the likely sentence. These suggest a starting point of 3 years imprisonment for manslaughter following a “high” degree of provocation over a short period of time. Where (as here) the “provocation” has continued over a longer period of time, where the killing was unpremeditated and where there has been an early guilty plea and obvious remorse it is possible that the sentence could be 2 years imprisonment or less, a length of sentence which would allow any custodial sentence to be suspended.
23. It is significant that whilst carrying a knife to the scene of a murder is invariably regarded as a serious aggravating feature, the same is not necessarily true where a woman uses a knife to kill her husband in a domestic setting. Indeed, the Sentencing Guidelines for manslaughter by provocation deal with the point in this way:
“The use or not of a weapon is a factor heavily influenced by the gender of the offender. Whereas men can and do kill using physical strength alone, women often cannot and thus resort to using a weapon. The issue of key importance is whether the weapon was to hand or carried deliberately to the scene, although the circumstances in which the weapon was brought to the scene will need to be considered carefully.”
It seems to me highly relevant that in this case Mr Titchener not only brought the knife into the room, but then physically placed it in his wife’s hands, before verbally abusing her in a wholly disgraceful way.
Those instructing have also pointed out that Mr Titchener’s ex-wife has been in touch and has indicated that in the days very shortly before the incident Mrs Titchener had complained to her of his abusive behaviour; indeed she goes further and says that she herself suffered similarly during the course of their marriage. This is potentially important evidence which at the very least would help to rebut any possible suggestion that Mrs Titchener is making up her account of her husband’s abominable behaviour as a desperate attempt to avoid the consequences of her own criminality.
24. There is absolutely no reason to suppose that Mrs Titchener was insane in the legal, or indeed the medical sense. However, I advise that those instructing should take steps immediately to obtain a psychiatric report on her psychiatric state.
25. Under S.2 of the Homicide Act 1957 if, as a result of a medical condition, Mrs Titcherner’s ability to form a rational judgement or exercise self-control was a “significant contributory factor” in causing her to act as she did, she would be guilty of manslaughter rather than murder.
26. However, unlike the defence of loss of control, that of diminished responsibility needs to be proved on the balance of probabilities by the defence. This is one reason why, at this stage, “loss of control” seems a more promising line of defence than diminished responsibility.
27. A person under attack is entitled to use reasonable force to defend themselves. It is an important principle that a person using force to defend themselves is not required to “weigh to a nicety” the precise degree of defensive force required. If she did no more than what she instinctively thought was necessary to defend herself (or indeed Henry) in the heat of the moment, that would be very potent evidence that the force used was reasonable. Moreover, a person under threat of an imminent attack is not required to wait to be hit before defending herself. The law recognises the concept of “anticipatory self-defence”.
28. Assuming Mrs Titchener was able to give some evidence that she was acting in self-defence (or defence of Henry) it would then be for the prosecution to prove that she was not so acting. If it could not do so, Mrs Titchener would be entitled to be acquitted of both murder and manslaughter.
29. However, whilst it is perhaps to early to make any assumptions, at this stage my view is that Mrs Titchener may struggle to lay the necessary evidential basis for self-defence even to be left to the jury. Nothing in the events as related by those instructing suggests that Mr Titchener was actually attacking his wife, or Henry, or even threatening to do so. On the contrary, his last words were apparently “give me the knife Helen!”
30. In addition there appears to be evidence that Mr Titchener suffered not one but two stab wounds. Whilst it is possible to conceive of a case in which a person desperately fighting to defend herself could inflict multiple stab wounds in self-defence, on the face of things the fact that Mrs Titchener stabbed her husband twice does not assist that defence.
31. I very much hope that those instructing will be able to represent Mrs Titchener when she is interviewed by the police. It is not for me to advise experienced solicitors on how they should approach the interview. Whether Mrs Titchener is fit to be interviewed and whether it is in her best interests to give a full account at this stage are matters on which she will have to be guided by the professional judgement of her solicitors.
32. However, as a general rule, any defence of “loss of control” (or indeed self-defence) is likely to be strengthened by being revealed as early as possible.
Pump Court Chambers
April 4th 2016
DX 3167 Borchester