Provocation is a specific defence against the charge of murder. It is only to be raised when prima facie for the crime of murder is made out – i.e. the prosecution is able to prove beyond a reasonable doubt (Woolmington v DPP (1935)) that the defendant (D) had committed the actus reus of unlawfully killing a human being with the mens rea of intention to either kill the human being or to cause grievous bodily harm. The burden of proof remains with the prosecution that D was not provoked when the act of homicide was carried out (Cascoe (1970)). A defence of provocation, if successful, will reduce the charge from murder to that of manslaughter (i.e. voluntary manslaughter) that carries a sentence of maximum life imprisonment.
The defence of provocation was originally a defence under common law (Duffy (1949)), but has since been modified by s. 3 of the Homicide Act 1957, which provides:
Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enought to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.
At common law (Duffy (1949)), it was decided that provocation must come from an act coming from the victim towards the accused that resulted in a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind. This has been redefined by the Act above.
In Doughty (1986), it was held that words (in this case, the baby’s incessant crying) can be construed as amounting to provocation. Also, the provocation may emanate from third parties other than the victim (Davies (1975)) or be directed towards third parties other than the accused (Pearson (1992)). What is crucial is that there must be evidence showing that D was provoked to lose his self-control. In the event that such evidence exist, the defence of provocation must be left to the jury.
The test for whether D was provoked when he performed the homicidal act is a two-limbed test:
- The subjective question whether D was provoked to lose his self control; and
- The objective question whether a reasonable man would have been provoked to lose his self-control and do as he did.
In Richens (1993), it was held that loss of self-control did not need to be “complete” to the extent that the accused did not know what he was doing. It is sufficient that he may not have been able to restrain himself from doing what he did.
In Ibrams (1981), it was held that while there may be a history of provocative words or acts, if at the time of killing, D was not provoked to lose his self-control, he cannot rely on past provocation. This was affirmed in Thornton (1992) and Ahluwalia (1992). The court sought to distinguish between acts of killing resulting from a loss of self-control and those that come from a calculated desire for revenge (Duffy (1949)).
In other words, what is needed is that there must be a sudden and temporary loss of self-control that resulted in the act of killing. The courts deem that should a “cooling-off” period exist between the initial provocation and the act of killing that follows, provocation will be negatived. In Ahluwalia (1992), D killed her husband after a prolonged period of domestic violence by him. It was argued that the cumulative provocation resulted in a “slow-burn” where D loses self-control only after a prolonged period of provocation by the deceased. The Court of Appeal, in a much criticised decision, did not allow for such “slow-burn” cases and stated that the law on provocation should only be amended by Parliament (see below for more on this).
Furthermore, it was held in Johnson (1989), that the fact the accused induced the provocative conduct does not preclude him from seeking to raise the defence of provocation. The court disagreed with the Privy Council’s decision in Edwards (1973) and stated that s. 3 of the Homicide Act 1957 required that where there is evidence of provocation, the issue must be left to the jury, regardless of whether the provocation was originally induced by D himself. Again, what matters was a sudden and temporary loss of self-control as a result of provocation. The jury must take everything into account regardless of whether it was a predictable result of the accused’s own conduct.
Having said that, the defence of provocation will only be successful should it pass the objective test as well – i.e. the reasonable man in the same circumstances as the accused will also have been provoked and acted as the accused did. The purpose of this objective test by the reasonable man is to set a standard of self-control against which D’s actions are to be measured. The problem faced by the courts is how is the “fictional” reasonable man to be construed – i.e. should any of the mental or physical characteristics of the accused be endowed upon the reasonable man?
In Bedder (1952), the court took a strictly objective stance in that none of the peculiar characteristics of D should be allowed the reasonable man. In this case, D was provoked because the victim taunted him for his sexual impotence. Lord Simonds stated that to endow the reasonable man with any such peculiar characteristics of the accused was to make nonsense of the objectivity of the test.
This strict objectivity presents several problems. When the jury is directed to take into account everything that may give rise to provocation, the unavoidable question is that a person with a particular characteristic (e.g. a sexually impotent man in Bedder), mental impairment or youthfulness (Camplin (1978)) may be particularly sensitive to certain provocative acts or words.
Lord Diplock proposed in Camplin (1978) that the age, sex and any other characteristics of the accused that may affect the gravity of the provocation be attributed to the reasonable man for consideration. This was affirmed by Lord Goff in Morhall (1996) who allowed that D’s glue-sniffing be allowed as a characteristic as it was this particular addiction that was subjected to insults.
Following Camplin and Morhall, the question then arises whether all the mental characterictics of the accused should also be attributed to the reasonable man. This question led to many confusing and controversial decisions as can be seen in Newell (1980) with the accused’s alcoholism; in Ahluwalia (1992) and Thornton (No. 2) (1996) with the accused’s battered wife syndrome; in Dryden (1995) with the accused’s obsession over his property; in Humphreys (1995) with the accused’s abnormal immaturity and attention-seeking by wrist slashing; and in Luc Thiet Thuan (1996) by the accused’s brain damage and proneness to explosive acts. Decisions to allow mental characteristics in certain cases and to disallow in others resulted in the law on provocation becoming an utter confusion. The courts’ decisions effectively blurred the distinctions between provocation (age and sex – i.e. external characteristics) and diminished responsibility (mental or psychiatric characteristics).
The House of Lords was again confronted with this problem in Smith (Morgan) (2003). Their lordships, by a majority decision of 3-to-2, affirmed Camplin and reiterated that the characteristics attributable to the reasonable man not just in considering the gravity of the provocation but also the standard of self-control should be expanded to include not just the age and sex of the accused but also any relevant mental characteristics moving towards the provocation. Following Smith, the jury when considering provocation objectively must also take into account any condition from which the accused suffered which impaired his ability to exercise self-control.
The problem was amplified by the Privy Council’s dissenting decision in A-G for Jersey v Holley (2005). The Privy Council in that case comprised nine serving Lords of Appeal in Ordinary and, by a majority of 6-to-3, followed Luc Thiet Thuan stating that mental characteristics should be disallowed for the jury’s consideration. It was held that only age and sex were relevant to be applied to the objective standard of the reasonable man.
The decision in Holley led to other complications beyond the already complicated issues surrounding the law on provocation. This was because decisions of the Privy Council were not binding precedents in the courts of England and Wales; and thus could not overrule the House of Lords’ decision in Smith. However, the Court of Appeal affirmed Holley in James and Karimi (2006) by stating that the principal of law on provocation was to be found in the decision of the Privy Council because the majority in Holley comprised half of the appellate committee of the House of Lords and thus any further appeal to the House of Lords would be a foregone conclusion by that reason.
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It came to my attention yesterday that upon the enactment of s. 54 of the Coroners and Justice Act 2009, the law on provocation is again amended. The law as it stands now on partial defences to murder (loss of control) is as follows:
54 Partial defence to murder: loss of control
(1) 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.
(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.
(7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.
(8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it.
The explanatory notes supplied by the House of Lords read as follows:
Clause 44: Partial defence to murder: loss of control324. The common law partial defence to murder of provocation is supplemented by section 3 of the 1957 Act. It provides that a defendant who would otherwise be guilty of murder will be guilty of manslaughter instead if he or she was provoked by things said or done (or both) to lose self-control, and in the opinion of the jury the provocation was enough to make a reasonable person do as the defendant did.
325. Clause 46 abolishes the common law partial defence of provocation (section 3 of the 1957 Act and section 7 of the Criminal Justice Act (Northern Ireland) 1966 are, accordingly, also repealed). Clause 44 replaces the common law with a new partial defence to murder for circumstances where the killing resulted from a loss of self-control attributable to a “qualifying trigger”, as defined.
326. Clause 44 sets out the criteria which need to be met in order for the new partial defence of loss of self-control to be successful.
327. Subsection (1) lists those as:
a) the killing was a result of the defendant’s loss of self-control,
b) the loss of self-control had a qualifying trigger (which is defined in clause 45), and
c) a person of the defendant’s sex and age with an ordinary level of tolerance and self-restraint and in the circumstances of the defendant might have acted in the same or similar way to the defendant.
328. Subsection (2) clarifies that the loss of control described in subsection (1) need not be sudden. Under the existing common law partial defence of provocation, the courts have held that the loss of self-control must be sudden. Case law has developed over time to the effect that the partial defence might still apply though where there was a delay between the provocative incident and the killing. The length of time between the incident and the killing does however affect whether there is sufficient evidence of a loss of self-control for the judge to leave the issue to the jury, and how readily a jury accepts that the defendant had indeed lost his or her self-control at the time of the killing. Although subsection (2) in the new partial defence makes clear that it is not a requirement for the new partial defence that the loss of self control be sudden, it will remain open, as at present, for the judge (in deciding whether to leave the defence to the jury) and the jury (in determining whether the killing did in fact result from a loss of self-control and whether the other aspects of the partial defence are satisfied) to take into account any delay between a relevant incident and the killing.
329. Subsection (3) supplements subsection (1)(c) by clarifying that the reference to the defendant’s circumstances in that subsection means all of those circumstances except those that are only relevant to the defendant’s general level of tolerance and self restraint. Thus, a defendant’s history of abuse at the hands of the victim could be taken into account in deciding whether an ordinary person might have acted as the defendant did, whereas the defendant’s generally short temper could not. Consequently, when applying the test in subsection (1)(c) the jury will consider whether a person of an ordinary level of tolerance and self-restraint to be expected from someone of the defendant’s sex and age and in the defendant’s specific circumstances (in the sense described earlier in this paragraph) might have acted as the defendant did.
330. Subsection (4) ensures that those acting in a considered desire for revenge cannot rely on the partial defence, even if they lose self-control as a result of a qualifying trigger.
331. Subsection (5) clarifies where the burden of proof lies in murder cases where the partial defence is raised. If sufficient evidence of the partial defence is raised, the burden of disproving the defence beyond reasonable doubt rests with the prosecution. It is supplemented by subsection (6) which confirms that for the purposes of subsection (5) the evidence will be sufficient where a jury, properly directed, could reasonably conclude that the partial defence might apply. It will be a matter of law, and therefore for a judge to decide, whether sufficient evidence has been raised to leave the partial defence to the jury. This differs from the position with the existing partial defence of provocation where, if there is evidence that a person was provoked to lose his or her self-control, the judge is required by section 3 of the 1957 Act to leave the partial defence to the jury even where no jury could reasonably conclude that a reasonable person would have reacted as the defendant did. Where there is sufficient evidence for the issue to be considered by the jury, the burden will be on the prosecution to disprove it. This is the same burden of proof as other defences, including self-defence.
332. Subsection (7) sets out that, when the defence is successful, the defendant will be guilty of manslaughter instead of murder.
333. Subsection (8) provides that even if one party to a killing is found not guilty of murder on the grounds of the partial defence of loss of self control, other parties may still be found guilty of murder (for example, if they acted without losing self control).
Clause 45: Meaning of “qualifying trigger”
334. Clause 45 defines the term “qualifying trigger” for the loss of self-control in clause 44(1).
335. Subsections (2) to (5) set out that the qualifying triggers for a loss of self-control can be where the loss of self-control was attributable to a fear of serious violence, to things done or said or to a combination of both.
336. Subsection (3) deals with cases where the defendant lost self-control because of his or her fear of serious violence from the victim. As in the complete defence of self-defence, this will be a subjective test and the defendant will need to show that he or she lost self control because of a genuine fear of serious violence, whether or not the fear was in fact reasonable. The fear of serious violence needs to be in respect of violence against the defendant or against another identified person. For example, the fear of serious violence could be in respect of a child or other relative of the defendant, but it could not be against an unidentified group of people (for example a political group).
337. Subsection (4) sets out when things said or done can amount to a qualifying trigger for the loss of self-control. The things said or done must amount to circumstances of an extremely grave character and cause the defendant to have a justifiable sense of being seriously wronged. Whether a sense of being seriously wronged is justifiable will be an objective question for a jury to determine (assuming that there is sufficient evidence for the defence to be left to the jury).
338. Subsection (4), therefore, has the effect of narrowing the circumstances in which a partial defence is available where a person loses self-control in response to words or actions alone. The example that the Law Commission identified where the partial defence might apply would be a case where a parent arrives home to find his or her child has just been raped, and in response the parent loses self-control and kills the offender as he tries to escape.
339. Subsection (5) allows the loss of self-control to be triggered by a combination of a fear of serious violence and things done or said which constitute circumstances of an extremely grave character and cause the defendant to have a justifiable sense of being seriously wronged.
340. Subsection (6) makes further provision in relation to determining whether a loss of self-control has a qualifying trigger:
- Subsection (6)(a) provides that, when the defendant’s fear of serious violence was caused by something that the defendant incited for the purpose of providing an excuse to use violence, it is to be disregarded. The effect is that, in such a situation, the person would not be able to claim a partial defence based on his or her fear of serious violence.
- Subsection (6)(b) provides that, when the defendant’s sense of being seriously wronged by something done or said relates to something that the defendant incited for the purpose of providing an excuse to use violence, it is to be disregarded. The effect is that, in such a situation, the person would not be able to claim a partial defence based on the relevant things done or said.
- Subsection (6)(c) has the effect that, in determining whether a loss of self-control has a qualifying trigger, the fact that something done or said amounted to sexual infidelity (on the part of the victim or anyone else) is not justifiable. The effect is that, if a person kills another because they have been unfaithful, he or she will not be able to claim the partial defence.
Clause 46: Abolition of common law defence of provocation
341. Clause 46 abolishes the common law defence of provocation, and consequently repeals section 3 of the Homicide Act 1957 and the equivalent Northern Ireland provision, namely section 7 of the Criminal Justice Act (Northern Ireland) 1966. Section 3 supplemented the common law principles relating to provocation by providing that the issue of whether the provocation was enough to make a reasonable person do as the defendant did should be left to be determined by the jury. This has been interpreted as meaning that a judge must leave the partial defence to the jury even where the evidence is such that no jury properly directed could reasonably conclude that the defendant was acting reasonably. This is in contrast to the common law position that existed prior to the Homicide Act 1957, where the judge was not required to leave the issue to the jury in such circumstances.
From L to R: Rocky, Ethan
