A few thoughts on Oscar Pistorius

Oscar Pistorius has had his conviction and 5 year prison sentence for culpable homicide overturned by the South African Court of Appeal. It has been replaced by a finding that he was guilty of murder. Instead of re-sentencing him itself, the Court of Appeal has sent the case back to the trial judge, Thokozile Masipa.

To English lawyers, South African criminal law seems at first largely familiar but it is different in several crucial respects, as we have learnt as we have followed this case.

1. There are no juries in South Africa

In some cases a South African Judge can sit alone, but in most murder cases he or she will sit with two “assessors.” In Pistorius’s case the assessors were a young academic, Themba Mazibuko, and an experienced criminal advocate, Janet Henzen-du Toit.

The assessors’ job is to assist the court in arriving at the correct verdict and in doing so they have the power to over-rule the judge in deciding a verdict. They have no role in sentencing. There has been no suggestion, so far as I am aware, that the assessors’ view of the facts in the Pistorius case differed significantly from that of the judge.

South African juries were abolished in 1969, having largely fallen into disuse before that. Given Lord Devlin’s famous remark that trial by jury was “the lamp that shows that freedom lives” it is perhaps appropriate that the light guttered out as apartheid was at its zenith. That said, before 1954 in practice, and afterwards by law, all juries consisted of 9 white men, so even when they existed they were not particularly fair.

English murder trials, on the other hand, are always conducted in front of a judge and jury, although there is a very exceptional provision for trial by judge alone in cases where there is strong evidence that jury tampering is likely to take place.

2. South African judges give a reasoned explanation for their verdicts. English juries do not.

This is one of the main disadvantages that opponents of the jury system see in the English model.

3. In South Africa the Prosecution can appeal against an acquittal

In England the prosecution cannot appeal against an acquittal. It can sometimes appeal mid-case against the legal rulings of a trial judge, it can appeal after an acquittal on an academic point of law and it can (through the Attorney General) appeal against some sentences. In South Africa, as we have seen, where the judge is said to have misapplied the law, the prosecution are able to invite the Appeal Court to quash an acquittal. That could not happen in England.

In English law it is very occasionally possible for the prosecution to apply to the High Court to overturn an acquittal in the case of a “tainted verdict” where, for example, there is evidence of jury tampering; and in very serious cases the prosecution can ask the Court of Appeal to order a retrial where “new and compelling evidence” has been discovered since the verdict. But neither of these exceptional means of overturning an acquittal is the same as the right of appeal that Pistorius’s prosecutors were able to invoke.

4. The South African law of homicide, though superficially similar, differs significantly from the English one.

What is “murder” in English law? Surely it is very easy: killing someone with the intention of killing them?

In fact, it does not mean that, or at least it does not mean only that. Under English law if you merely intend to cause someone really serious harm, and they die from the injuries that you inflicted, that is murder too. You might, to take a simple example, shoot someone in the kneecaps as the IRA used regularly to do, and find that the victim loses so much blood that they die. Under English (and for that matter Irish or Northern Ireland law) you are guilty of murder, despite having had no intent to kill.

On the other hand, to be guilty of murder in Engalnd you must at least intend to kill or cause serious harm. If you merely take the risk – even a completely unreasonable risk – of killing or causing serious injury, you are not guilty of murder. There are a number of exceptions, or apparent exceptions to this rule. For example if you intend to kill A but in fact kill B, you are still guilty of murder. Intent to kill someone else will suffice.

A further exception applies to secondary parties (that is people who are assisting or encouraging but does not themselves committing the murder). The law here is more complicated: foresight that someone else might commit the murder can lead to an accomplice’s conviction under the principle of joint enterprise. That, in fact, is one of the reasons why the law of joint enterprise is currently being considered by the UK Supreme Court in a case called Jogee.

There used to be another exception: that if you killed someone in the course of committing another serious crime, you could be convicted of murder without having had what would otherwise be the necessary intent. That principle has survived in some other common law jurisdictions (particularly in America) but in England and Wales “felony murder” was abolished by the Homicide Act 1957.

Over the years lawyers have loved to argue about exactly what is meant by “intent” but generally speaking juries are not given much help on that question, although they are quite often told what intent is not: it is not the same as “motive” or “desire,” in case you thought that it was.

Subject to the above, if you kill someone in England without intent to kill or cause serious harm you are not guilty of murder.

You may, of course, be guilty of manslaughter. This is a rather complicated offence because it can be committed in a number of different ways, but for present purposes the two most important are:

Manslaughter by gross negligence, and

Manslaughter by an unlawful and dangerous act.

In “gross negligence” manslaughter the word “gross” is important. If you simply kill someone through a relatively minor mistake then (unless you are driving a car or running a business of some sort) you are unlikely to be guilty of a crime at all. To be guilty of this sort of manslaughter your negligence must be “so bad in all the circumstances as to amount to a criminal act or omision.”¹ It’s rather a circular definition, but there it is. It includes (but is certainly not limited to) the situation where a person deliberately takes an unjustifiable risk with the foresight that his actions might cause death. Even if you have no foresight of the possibility of death you can still be convicted of manslaughter.

Manslaughter by an unlawful act is rather different, (although it is perfectly possible for the same act to be both unlawful and grossly negligent). It is committed where a person kills unintentionally while doing something which is both unlawful and dangerous. The classic exposition of the law is this:

“Where the act which a person is engaged in performing is unlawful, then if at the same time it is a dangerous act, that is, an act which is likely to injure another person, and quite inadvertently the doer of the act causes the death of that other person by that act, then he is guilty of manslaughter.”²

So much for the English law of homicide.

How does South African law differ?

Readers should beware: I am not a South African lawyer and there is a much higher chance even than usual, that what follows will contain some appalling howlers.

South African law distinguishes between two types of homicide: murder and the less serious offence of culpable homicide ( which broadly, but by no means exactly, corresponds to English manslaughter).

At first glance the South African definition of murder is narrower than the English. An intent to cause grievous bodily harm, for example, does not suffice, as it does in England.

However, and this is the important point in Pistorius’s case, under the South African law of dolus eventualis, intent in the English sense is not required for a murder conviction. A person can be guilty of murder if he knowingly takes an unjustified risk of killing another. (Somebody – like the hypothetical knee-capper – who intentionally inflicts grievous bodily harm is often likely to be guilty of murder in South Africa under this principle, even if he does not intend to kill.)

In his judgment Leach JA applied the principle to Pistorius’s case:

“I have no doubt that in firing the fatal shots the accused must have foreseen, and therefore did foresee, that whoever was behind the toilet door might die, but reconciled himself to that event occurring and gambled with that person’s life. This constituted dolus eventualis on his part, and the identity of his victim is irrelevant to his guilt.”

He did not find that Pistorius intended to kill Reeva Steenkamp: that issue was resolved by the trial judge’s acceptance that it was possible Pistorius believed that she was not in the toilet when he fired the fatal shots. He accepted that Pistorius may have thought that there was an intruder behind the toilet door.

“What was in issue, therefore, was not whether the accused had foreseen that Reeva might be in the cubicle when he fired the fatal shots at the toilet door but whether there was a person behind the door who might possibly be killed by his actions.” [Emphasis added]

South Africa has developed a unique legal system based on a hybrid of Dutch and English law. Dolus eventualis is a principle of Dutch law to this day (and of several other Roman-law inspired legal systems, including those of Italy and Germany).³ In fact, something very similar, if not identical, also exists, though not under that name, in English law too – as with the “malice” that can found liability under S.20 of the Offences against the Person Act, or the concept of “recklessness” that crops up from time to time in various statutory crimes.

What would have been Pistorius’s fate in an English court?

On the assumption that an English jury came to the same conclusions as Judge Masipa about the state of Pistorius’s mind, it could not have convicted him of murder. He had no intent to kill or cause serious harm, but he was reckless as to the possibility of killing someone he believed to be an intruder in the bathroom. Subject to the question of self-defence, he would have been convicted of manslaughter.

The South African appeal court dealt with the question of self-defence in a fairly peremptory way, dismissing it largely on the basis that Pistorius’s own evidence:

“he stated that he had not intended to shoot the person whom he felt was an intruder. This immediately placed himself beyond the ambit of the defence, although as I have said, his evidence is so contradictory that one does just not know his true explanation for firing the weapon.”

In England, he would no doubt have tried to rely on the relatively new law introduced by Chris Grayling which allows a “householder” to use any degree of force as long as it is not “grossly disproportionate” to defend himself from what he believes to be attack, or imminent attack by a trespasser⁴, although it seems unlikely that a jury would have been particularly sympathetic. I think the likelihood is that he would have been convicted.

Sentence

The Appeal Court has sent Pistorius’s case back to the trial judge for re-sentencing.

Although the five judges of the South African Supreme Court of Appeal overturned Judge Masipa’s verdict, Leach JA (who delivered the judgment)

went out of his way to praise the way that she had handled the trial:

“The trial was conducted in the glare of international attention and the focus of television cameras which must have added to the inherently heavy rigors that are brought to bear upon trial courts in conducting lengthy and complicated trials. The trial judge conducted the hearing with a degree of dignity and patience that is a credit to the judiciary. The fact that this court has determined that certain mistakes were made should not be seen as an adverse comment upon her competence and ability. The fact is that different judges reach different conclusions and, in the light of an appeal structure, those of the appellate court prevail. But the fact that the appeal has succeeded is not to be regarded as a slight upon the trial judge who is to be congratulated for the manner in which she conducted the proceedings.”

Those are observations with which anyone who watched the original trial on television would probably agree.

She will need to pass a heavier sentence for murder than the 5 years she imposed for culpable homicide. On the other hand, the Supreme Court of Appeal did not overturn any of her findings of fact. The judge will sentence him on the same facts as before, it is just that the Appeal Court has decided that those facts amount to murder rather than culpable homicide.

Under South African legislation⁵ for murder without specified aggravating features such as premeditation (which do not feature in this case), the minimum sentence is one of fifteen years imprisonment. This minimum applies both to intentional and “dolus eventualis” killings.

However, if Pistorius can persuade the court that there are “substantial and compelling features” the judge would have a discretion to impose a shorter sentence. Quite what is meant by “substantial and compelling” is a question for a South African lawyer but some help is perhaps given by the case of Malgas [2001] 3 All SA 220 (A):

“The best one can do is to acknowledge that one is obliged to keep in the forefront of one’s mind that the specified sentence has been prescribed by law as the sentence which must be regarded as ordinarily appropriate and that personal distaste for such legislative generalisation cannot justify an indulgent approach to the characterisation of circumstances as substantial and compelling. When justifying a departure [from the statutory minimum sentence] a court is to guard against lapses, conscious or unconscious, into sophistry or spurious rationalisations or the drawing of distinctions so subtle that they can hardly be seen to exist.”

For a shorter sentence than 15 years to be imposed the circumstances do not have to be “exceptional,” but they do have to be such that it would be “unjust” to impose it.

It is no more than a half-educated guess, but I think it quite likely that Judge Masipa will find that such features do exist. “Dolus eventualis” murder is surely much less serious than murder where there is a positive intent to kill. That would tend to suggest a sentence near the minimum. If one adds to that both Pistorius’s disability, his possibly somewhat fragile mental state, and the fact that – as she found – he may have believed his house was about to be burgled, this might persuade her that a fifteen year sentence would be unjust.

I am going to stick my neck out and guess that he will get about 12 years. That said, your guess is probably as good as mine, unless of course you are a South African criminal lawyer.

What would his sentence be if he had been convicted of manslaughter on the same facts in this country?

It is very difficult to say, partly because there are no formal sentencing guidelines for manslaughter of this sort, and partly because the same facts, involving the casual possession of a powerful firearm, would be very unlikely to arise in the same way in Britain. The only people likely to possess such a weapon would be gangsters or terrorists. A respectable paraplegic athlete simply would not have one.

An English court would no doubt take a particularly dim view of the use of a firearm to frighten an intruder (even if none of the bullets had hit, an offence under S.16A of the Firearms Act 1968 of having a firearm with intent to cause fear of violence would have landed him with a mandatory minimum sentence of 5 years); but it was lawfully held in South Africa. The Black Talon ammunition which Pistorius used:

“… was specifically designed for the purpose of self-defence. It would penetrate a wooden door without disintegrating but would mushroom on striking a soft, moist target such as human flesh, causing devastating wounds to any person who might be hit. The veracity of this is borne out by the photographs depicting the injuries the deceased sustained, correctly described by the trial court as being ‘horrendous’.”

Anyone using that gun and that ammunition in England would find themselves in very hot water indeed.

It is, however, possible to imagine an English Pistorius being in lawful possession of a shotgun, and with a little more imagination one can see him firing blindly towards his girlfriend, whilst believing her to be an intruder.

Whether an English jury would have given him as much benefit of the doubt as did Judge Masipa is open to question, and the fact that juries do not give written reasons for their verdicts could make it hard for an English sentencing judge to know exactly on what basis to sentence, particularly when Pistorius’s own account was so confused.

But leaving those difficulties to one side, if Pistorius was being sentenced on the basis that he shot a legally held shotgun (about the only firearm that he could realistically have been entitled to possess in this country) through the toilet door in a moment of panic, intending to frighten rather than kill somebody he believed to be a burglar, I think he would probably receive a sentence of between 6 and 10 years, and perhaps closer to the lower end of that bracket.

One or two English criminal lawyers read this blog, so it would be interesting to know whether they agree. It wouldn’t surprise me in the least if they didn’t.