Provocation in English law

For a description of the general principles, see provocation (legal).

In English law, provocation was a mitigatory defence alleging a total loss of control as a response to another's provocative conduct sufficient to convert what would otherwise have been murder into manslaughter. It does not apply to any other offence. It was abolished on 4 October 2010^[1] by section 56(1) of the Coroners and Justice Act 2009,^[2] but replaced by a relatively similar defence of "loss of control".

The principles

Under section 3 of the Homicide Act 1957 (repealed, see below):

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 enough 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.

The initial burden was on the defence to raise sufficient evidence of provocation. As a matter of law, the judge would then decide whether to leave the defence to the jury. This did not change the burden of proof which, as in all criminal cases, was on the prosecution to prove the actus reus and mens rea of the offence charged, i.e. murder. The Act changed the common law, under which provocation had to fall under one of the following expectations:

• a grossly insulting assault
• witnessing an attack on a relative
• witnessing an Englishman being unlawfully deprived of his liberty
• a husband discovering his wife in the act of adultery; and
• a father discovering someone committing sodomy on his son.^[3]

The Act provided that provocation could be by anything done or said without it having to be an illegal act and the provoker and the deceased could be a third parties.^[4] If the accused was provoked, who provoked him was irrelevant.

This section of the Act was repealed on 4 October 2010.^[5] It was superseded by sections 54 to 56 of the Coroners and Justice Act 2009 when they came into force on the same date.^[6]

The factual limb

This was a subjective test and a pure question of fact, i.e. the evidence had to show that the defendant actually lost his self-control. In R v Duffy,^[7] Devlin J. said that

Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.

Under normal circumstances, the response to the provocation had to be almost immediate retaliation. If there was a "cooling-off" period, the court would find that the accused should have regained control, making all subsequent actions intentional and therefore murder. In R v Ibrams & Gregory^[8] the defendants had been terrorised and bullied by the deceased over a period of time so devised a plan to attack him. There was no evidence of a sudden and temporary loss of self-control as required by Duffy. Even the period of time to fetch a weapon could be sufficient to cool off. In R v Thornton,^[9] a woman suffering from "battered woman syndrome" went to the kitchen, took and sharpened a carving knife, and returned to stab her husband. The appeal referred to s3 which required the jury to have regard to "everything both said and done according to the effect which in their opinion it would have on a reasonable man". The appellant argued that instead of considering the final provocation, the jury should have considered the events over the years leading up to the killing. Beldam L. J. rejected this, saying:

In every such case the question for the jury is whether at the moment the fatal blow was struck the accused had been deprived for that moment of the self-control which previously he or she had been able to exercise.

But in R v Thornton (No 2)^[10] after considering new medical evidence, a retrial was ordered and the defendant was convicted of manslaughter on the ground of diminished responsibility. Similarly, in R v Ahluwalia^[11] a retrial was ordered. The defendant had poured petrol over her husband and set it alight, causing burns from which he died. When the defence of diminished responsibility on the ground of "battered woman syndrome" was put, she was convicted of manslaughter. In R v Humphreys,^[12] the defendant finally lost self-control after years of abuse and stabbed her partner. She pleaded that the final words had been the straw that broke the camel's back. The conviction for murder was held unsafe because the accused's psychiatric condition stemming from the abuse should have been attributed to the reasonable person when the jury considered the application of the objective test.

The reasonable person test

If the jury was satisfied that the defendant was provoked, the test was whether a reasonable person would have acted as the defendant did - an objective test. It was held in Camplin^[13] that the accused's age and sex could be attributed to the reasonable man when the jury considered the defendant's power of self-control. Further, that any characteristic of the accused could be included which the jury considered may affect the gravity of the provocation. Therefore the reasonable person had to be endowed with the particular characteristics of the accused. In a number of leading cases, Morhall^[14] and Luc Thiet Thuan v R,^[15] it was held that the judge should direct the jury to consider whether an ordinary person with ordinary powers of self-control would have reacted to the provocation as the defendant did and that no allowance should be given for any characteristics that might have made him or her more volatile than the ordinary person. These decisions acknowledged, however, that, in addition to age and sex, characteristics which affected the gravity of the provocation to the defendant should be taken into account. In R v Smith^[16] the defendant was charged with murder and relied on the defence of provocation, alleging that he had been suffering from serious clinical depression and had been so provoked by the deceased as to lose his self-control. Lord Hoffman held that the test was whether the jury thought that the,

circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter.

Furthermore, the House held, by a majority, that no distinction should be drawn, when attributing characteristics for the purposes of the objective part of the test imposed by s3 Homicide Act, between their relevance to the gravity of the provocation to a reasonable man and his reaction to it. Account could be taken of a relevant characteristic in relation to the accused’s power of self-control, whether or not the characteristic was the object of the provocation. But in HM's AG for Jersey v Holley^[17] the Privy Council regarded Smith as wrongly decided, interpreting the Act as setting a purely objective standard. Thus, although the accused's characteristics were to be taken into account when assessing the gravity of the provocation, the standard of self-control to be expected was invariable except for the accused's age and sex. The defendant and the deceased both suffered from chronic alcoholism and had a violent and abusive relationship. The evidence was that the deceased was drunk and taunted him by telling him that she had had sex with another man. The defendant then struck the deceased with an axe which was an accident of availability. Psychiatric evidence was that his consumption of alcohol was involuntary and that he suffered from a number of other psychiatric conditions which, independently of the effects of the alcohol, might have caused the loss of self-control and induced him to kill. Lord Nicholls said:

Whether the provocative acts or words and the defendant's response met the 'ordinary person' standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self control was sufficient excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant's conduct is 'excusable'.

In R v Faqir Mohammed^[18] a cultured Asian man caught a young man leaving his daughter's bedroom window. He immediately killed his daughter by repeatedly stabbing her with a knife. Following the death of his wife five years earlier he suffered from depression, and there was credible evidence that he had a violent temperament and had repeatedly been violent towards his daughters and his wife. Despite the fact that a Privy Council ratio decidendi is only persuasive authority, the Court of Appeal applied it and reinstated the law before Smith. Scott Baker L. J. said:

Properly directed, the jury should therefore have applied a narrow and strict test of a man with ordinary powers of self-control rather than the wider test of excusability that was put to them by the judge. The jury having convicted on the basis of the wider test, we cannot see any unsafety in the conviction. The same result would have been inevitable if the provocation direction had been on the basis of Holley.

In R v James^[19] the court again considered the relationship between the Privy Council decision in Holley and Smith. In his commentary on Holley, Ashworth (2005) said:

"Is Holley binding on English courts? There may be a purist strain of argument to the effect that it is not, since it concerns another legal system (that of Jersey). However, the reality is that nine Lords of Appeal in Ordinary sat in this case, and that for practical purposes it was intended to be equivalent of a sitting of the House of Lords."^[20]

Viewing this situation as exceptional, Phillips CJ. accepted that the Privy Council decision had indeed overruled the House of Lords, recognising the error that the Lords had made in their earlier interpretation of the law. Rather than follow the strict rules of precedent and send the issue back to the Lords for clarification, the Court of Appeal accepted the de facto situation and recognised Holley as the binding precedent.

Self-induced provocation

The Privy Council held in Edwards v R^[21] that a blackmailer could not rely on the predictable results of his demands for money when his victim attacked him (a policy decision to prevent a criminal from relying on his own wrongdoing as the cause of the subsequent death). In R v Johnson,^[22] the defendant had become involved in an escalating argument with the deceased and his female companion. When the victim threatened the defendant with a beer glass, the defendant fatally stabbed him with a knife. The judge held that the threatening situation had been self-induced. The Court of Appeal held that section 3 of the Homicide Act 1957 provided that anything could amount to provocation, and there was no reason to exclude responsive actions provoked by the defendant. A conviction of manslaughter was substituted.

Sentencing

The Sentencing Guidelines Council has issued a "final guideline" in respect of manslaughter by reason of provocation which is classed as a serious offence by section 224 of the Criminal Justice Act 2003. The guideline confirms that a conviction must almost always result in a custodial sentence and that the degree and extent of the provocation must be balanced against the offender's response when determining the appropriate sentence. The more the evidence demonstrates an unpremeditated quality to events, the more the sentence may be mitigated. In this, exposure to long-term abuse has an equivocal quality because the immediate "straw" only assumes significance given the context and the response may have greater qualities of revenge. However, factual scenarios involving attacks made in a family context, attempts to conceal evidence (including concealment of the body), etc. will aggravate the sentence.

References

Further reading

• Law Commission. Partial Defences to Murder: Overseas Studies Consultation Paper No 173 (Appendices) on provocation in Australia and India

• Gardner. (2003). "The Mark of Responsibility". O.J.L.S. 23(2) 157–171.
• Neal & Bagaric. (2003). "Provocation: the Ongoing Subservience of Principle to Tradition". Journal of Criminal Law 67(3) 237–256.
• Oliver. (1999). "Provocation and Non-violent Homosexual Advances". Journal of Criminal Law. 63(6) 586–592.
• Thomas. (2003). "Sentencing: Manslaughter – Manslaughter by Reason of Provocation – Manslaughter of Spouse of Partner", Criminal Law Review, June 414-417.
• Toczek. (1996). "The Action of the Reasonable Man". New Law Journal 146, 835.
• Toczek. (2000). "Self-control and the Reasonable Man". New Law Journal 150, 1222.

External links

• The Reasonable Man Concept Applied in the Partial Defence of Provocation

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