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Historically, the defence of provocation actually developed out of chance medley. It was thought that
the mens rea of murder might be undermined where there was a chance fight and it was from here
that the defence of provocation occurred. At this time it was only applicable to very specific
circumstances. Normally anger is not an excuse. There are those that question whether we should
have a defence of provocation in murder. In crime there is no concept of contributory negligence,
therefore the victim could not have got on a level what he deserved. The law excuses people who
get angry at something and kill themselves, it is questionable whether provocation operates fairly
especially to the victim. The victim is usually portrayed in a negative light because often at trail, you
find very unfortunate and stereotypical portrayal of victims to find any possible evidence of
provocation. If there is any evidence whatsoever for provocation, then the judge must leave it for the
jury to decide.
Celia Wells:
Provocation was less a generic class and more a series of recognized types of anger-based
killings which attracted the excusing eye of the law. A grossly insulting assault; an attack on
a kinsman or friend; the sight of an Englishman unlawfully deprived of his liberty; and
seeing a man in the act of adultery with ones wife: all came to be recognized as excused
killings. It does not require a rabid feminist to spot the gendered tenor of these examples
(loc. cit. supra p.87).
Morgan Smith [2000]
The traditional way in which judges attempt to deflect the jury from a perverse verdict is
to withdraw the issue. But s.3 was intended to deprive the judge of even this method of
control. The jury was to be sovereign and have the power in theory as well as in practice to
decide whether the objective element was satisfied.
Woolmington v DPP [1935]
This case made sure that it is for the prosecution to prove all the elements of the crime beyond
reasonable doubt and this includes disproving defences.
ELEMENTS OF PROVOCATION
Provocation is based upon two tests, both of which are subject to considerable
disagreement:
(1) Was D provoked to lose his self control by things done or said? (Subjective condition).
(2) Would a reasonable person have lost his self-control and acted as D acted? (Objective
condition).
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reasonable person would have lost his self-control. The issue is not, however,
straightforward and there are a number of matters which need to be addressed:
Provocation is available even if the provocative act is not done by the victim. That said, it
will be hard to show that a reasonable person would have killed X in the face of provocation
from Y. Further, the defense is available even if the provocation is aimed at someone else
and the defendant loses his self-control. So if Jack shouted a racial insult at George, as a
result of which Georges wife, Nina, lose her self control and killed Jack, Nina could rely on
provocation.
Pearson (1992)
An older brother discovered that his younger brother had been abused by their father and
so helped his brother to kill the father. He was able to rely on provocation.
R v Davies [1975]
The provocation does not have to come from the victim themselves.
Blameworthiness
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Self-induced provocation
There is some dispute over whether the defense is available if the provocation is selfinduced. What would be the laws response if the defendant had racially insulted the victim
and in reply the victim had insulted the defendant, who lost his self-control and killed? In
other words would it be relevant that the defendants own acts had caused the provocative
words or acts? At one time the Privy Council argued that a defendant could not rely on
provocative conduct which was a foreseeable consequence of the defendants actions.
However this was rejected in Johnson.
R v Johnson [1989]
Even if the provocative acts were self-induced the defendant could still seek to use
provocation. But it would be up to the jury to decide whether a reasonable person would
react to that provocation in the way the defendant did. In fact, it would be rare that a jury
would decide that a reasonable person would respond to a self-induced provocation by
killing.
... we find it impossible to accept that the mere fact that a defendant caused a reaction in
others, which in turn led him to lose his self-control, should result in the issue of
provocation being kept outside the jury's consideration. Per Watkins L.J.
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The basis of the requirement that the defendant has suffered a sudden and temporary loss
of self-control has in recent years come under challenge, particularly in cases involving
battered women, where the courts have heard evidence that battered women may suffer a
slow burn reaction. This means that they may be provoked, but the anger builds up slowly
until suddenly there is an outburst, maybe some time after the provoking incident. The
psychological evidence on this point is that broadly speaking mens anger reactions are snap
whereas women are slow burn reactions. This led to a reconsideration of the requirement of a
sudden and temporary loss of self-control in the Ahluwahlia case.
R v Thornton [1992]
A woman was married to an alcoholic. Whilst he was drunk they had an argument. She sharpened a
knife and stabbed him. At the first trial they were very clear that the Duffy test still applied.
in cases of domestic violence which culminates in the death of a partner there is
frequently evidence given of provocative acts committed by the deceased in the past, for it is
in that context that the jury have to consider the accused's reaction. 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 she had been able to
exercise. The epithet "sudden and temporary" is one a jury are well able to understand...
Per Lord Taylor
R v Thornton (No. 2) [1996]
The CA put something of a gloss on this. The evidence of pre existing acts of abuse was relevant. A
relatively minor trigger incident may cause a loss of self control.
A jury may more readily find there was a sudden loss of control triggered by even a minor
incident, if the defendant has endured abuse over a period, on the last straw basis. Per
Lord Taylor C.J.
Ahluwahlia case [1992]
Details of Case -> Ahluwahlia was an Asian woman who had entered an arranged marriage
with her husband. She had suffered many years of violence and abuse from him. This
included an attempt to kill her. One evening the husband threatened to attack her. That
night, while he was asleep Ahluwahlia poured petrol over him and set it alight. The husband
died from the burns he received. At her trial the judge directed the jury that it had to be
shown that Ahluwalia had suffered a sudden and temporary loss of self-control. She
appealed, inter alia, on the ground that such a direction was incorrect.
Held -> Appeal allowed. Conviction quashed. Retrial ordered.
We accept that the subjective element in the defence of provocation would not as a matter
of law be negatived simply because of the delayed reaction in such cases, provided there was
at the time of the killing a sudden and temporary loss of self control caused by the alleged
provocation. However, the longer the delay and the stronger the evidence of deliberation on
the part of the defendant, the more likely it will be that the prosecution will negative
provocation
As the CA in Ahluwahlia made clear, the present law is that while it is still necessary to
show that the defendant suffered a loss of self-control as a result of a provocation, the fact
that there is a gap between the provocative incident and the killing the harder it will be to
show that there was a sudden and temporary loss of self-control and that this was caused
by the provocative incident.
This was reiterated in the Privy council in the case of
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Retaining Control
The provocation must lead someone to actually lose control. In understanding the meaning of
loss of self-control it is important to recall that to be guilty of murder the defendant must
have intended to kill or cause GBH. This means that loss of self-control cannot require the
defendant has completely lost control of his or her actions or was so angry that he or she
was not aware of what they were doing, because if either of these were true then the
defendant would not have the mens rea or actus reus of murder.
Richens (1993)
The CA stressed that it is not necessary to show that there was a complete loss of selfcontrol, in the sense that the defendant did not know what he was doing, or was not able to
stop himself acting in the way he did. It was sufficient that the defendant was unable to
restrain himself.
R v Cocker [1989]
The defendant had been looking after his incurably ill wife for over a decade. She had asked him to
kill her. One night she continually woke him up and said he was a bad husband for not killing her so
he did. He admitted he did not actually lose control, therefore he couldnt rely on provocation.
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A particularly troublesome issue for the courts has been whether the reasonable person
should be endowed with any characteristics of the defendant. Before looking at the present
law it is useful to consider why the law does not take the easy approach of just considering
how a straightforward normal person would have reacted to the provocation.
Bedder v DPP [1954]
An impotent man visited a prostitute. The prostitute taunted him about his impotence. He
lost his self-control and killed her. The HL explained the jury should consider how a
reasonable man would react to the taunts, and explained that the jury should consider how
a reasonable man would react to the taunts, and that the reasonable man would not be
regarded as impotent. Subsequently it has been accepted that this makes little sense, and
that the decision is therefore wrong. The jury can make sense of the provocation only if a
reasonable person is endowed with the characteristics which made the provocation
provocative. So in Bedder it makes no sense to consider how a potent man would react to
being called impotent; rather the jury must consider how an impotent man would react to
being taunted about his condition. Similarly if a racial insult is uttered it is only sensible to
consider how a person of the defendants race would react to that insult.
DPP v Camplin [1978]
A 15 year old boy was raped by the victim, who then taunted the boy. The HL accepted the
argument that a 15 year old could not be expected to possess the same level of self-control
as an adult.
Per Lord Diplock: ... for the purposes of the law of provocation the "reasonable man" has
never been confined to the adult male. It means an ordinary person of either sex, not
exceptionally excitable or pugnacious, but possessed of such powers of self-control as
everyone is entitled to expect that his fellow citizens will exercise in society as it is today ...
the reasonable man referred to in the question is a person having the power of self-control
to be expected of an ordinary person of the sex and age of the accused, but in other respects
sharing such of the accused's characteristics as they think would affect the gravity of the
provocation to him....
To taunt a person because of his race, his physical infirmities or some shameful incident
in his past may well be considered by the jury to be more offensive to the person addressed,
however equable his temperament, if the facts on which the taunt is founded are true than it
would be if they were not. It would stultify much of the mitigation of the previous
harshness of the common law in ruling out verbal provocation as capable of reducing
murder to manslaughter if the jury could not take into consideration all those factors which
in their opinion would affect the gravity of taunts and insults when applied to the person to
whom they are addressed.
These two cases reveal why the courts have found they cannot take the simple approach
and ask simply how would the reasonable person react: we need to give the characteristics
of the accused to the reasonable person, in order:
1) To make a realistic assessment of what would be a reasonable reacted to the
provocation; and
2) To take account of some characteristics of the accused which provide a good
explanation of why he could not live up to the standard of the reasonable person.
The court have been deeply divided as to which characteristics of the defendant, if any, can
be taken into account in deciding whether the reasonable person would have acted as the
defendant did. Two main views have been developed in case law:
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these problems are exaggerated, how do they know this? They said this decision wasnt
consistent with Marhall, it was. Marhall won with a majority.
Per Lord Hoffmann (for the majority):
It follows, in my opinion, that it would not be consistent with section 3 for the judge to tell
the jury as a matter of law that they should ignore any factor or characteristic of the accused
in deciding whether the objective element of provocation had been satisfied. That would be
to trespass upon their province. In a case in which the jury might consider that only by
virtue of that characteristic was the act in question sufficiently provocative, the effect of
such a direction would be to withdraw the issue of provocation altogether and this would be
contrary to the terms of section 3.
In my opinion, therefore, judges should not be required to describe the objective element in
the provocation defence by reference to a reasonable man, with or without attribution of
personal characteristics. They may instead find it more helpful to explain in simple
language the principles of the doctrine of provocation... The jury must think 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. This is entirely a question for the
jury. In deciding what should count as a sufficient excuse, they have to apply what they
consider to be appropriate standards of behaviour; on the one hand making allowance for
human nature and the power of the emotions but, on the other hand, not allowing someone
to rely upon his own violent disposition.
The general principle is that the same standards of behaviour are expected of everyone,
regardless of their individual psychological make-up. In most cases, nothing more will need
to be said. But the jury should in an appropriate case be told, in whatever language will best
convey the distinction, that this is a principle and not a rigid rule. It may sometimes have to
yield to a more important principle, which is to do justice in the particular case. So the jury
may think that there was some characteristic of the accused, whether temporary or
permanent, which affected the degree of control which society could reasonably have
expected of him and which it would be unjust not to take into account. If the jury take this
view, they are at liberty to give effect to it.
Attorney General for Jersey v Holley [2005]
The Privy Council is made up of the same people as Lords. However, the Privy Council law is
persuasive rather than binding on the lower courts. The Privy Council sat in a special expanded panel
of 9. They expressly said this appeal was to resolve the conflict of Marhall.
The objective standard of self control is the standard set by common law to a reasonable man. There
were problems with the majority judgement in Morgan v Smith. In MS they tried to create a looser
test. But the Privy Council said that is not what the statute said. Marhall was reasserted. Although the
HL decision is binding, do we listen to the Privy Council or HL? They are able to take the Privy
Council view over HL because of the expanded panel.
The case rejected the approach taken by the HL in Smith and preferred the Camplin
approach. The CA in Mohammed (2005) and James (2006) has accepted that Holley
represents the current law.
Details of Case -> Dennis Holley was a chronic alcoholic. While under the influence
of drink he killed his girlfriend and was subsequently charged with her murder. At
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his trial he sought to rely on the law of provocation. His case was heard under the
law of Jersey where the law on provocation was identical to that in England. The
judge, in directing the jury, told them that drunkenness that rendered a defendant
more susceptible to being provoked was not a factor they could take into account in
deciding how a reasonable person would have reacted to a provocation of that
gravity.
Lord Nicholls said that this appealis concerned to resolve [the conflict between
Moorhall and Smith] and clarify definitively the present state of English law, and
hence Jersey law, on this important subject.
... The objective standard of self-control is the standard set by the common law and, since
1957, by the statutory reference to a reasonable man. It is of general application. Inherent
in the use of this prescribed standard as a uniform standard applicable to all defendants is
the possibility that an individual defendant may be temperamentally unable to achieve this
standard.
Taking into account the age and sex of a defendant, as mentioned in Camplin, is not an
exception to this uniform approach. The powers of self-control possessed by ordinary
people vary according to their age and, more doubtfully, their sex. These features are to be
contrasted with abnormalities, that is, features not found in a person having ordinary
powers of self-control. The former are relevant when identifying and applying the objective
standard of self-control, the latter are not.
For their Lordships in the majority, there was one particular obstacle to the majority
judgment in Morgan Smith:
... the majority view [in Morgan Smith] does represent a departure from the law as
declared in section 3 of the Homicide Act 1957. It involves a significant relaxation of the
uniform, objective standard adopted by Parliament. Under the statute the sufficiency of the
provocation (whether the provocation was enough to make a reasonable man do as [the
defendant] did) is to be judged by one standard, not a standard which varies from
defendant to defendant. Whether the provocative act or words and the defendants 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 sufficiently 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 defendants conduct is excusable. On
this short ground their Lordships, respectfully but firmly, consider the majority view
expressed in the Morgan Smith case is erroneous.
Hence the distinction drawn in Moorhall was reasserted.
The Privy Council in Holley have, therefore returned to the view in Camplin. A defendants
characteristics can be relevant in assessing the gravity of the provocation, but not as
affecting the level of self-control.
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Mohammed (2005)
A father killed his daughter. The father was described as a strict, angry, devout Muslim,
who lost his self-control and discovering that his daughter was seeing a man. The CA
explained that the defendants temperament was relevant in assessing the gravity of the
provocation: it was more provocative for a strict, devout Muslim father to discover his
daughter was dating, than for a placid non-religious father. But his temperament could not
be taken into account in assessing the level of self-control expected of someone facing a
provocation of that gravity. His age and sex were the only factors that could be considered
as affecting the degree of self-control expected.
Holley:
25. Lord Steyn instanced cases of women who are more prone to lose their self-control
because they are suffering from postnatal depression, or battered woman syndrome,
or a personality disorder. Lord Steyn suggested that, on the majority view of the law
expressed in that case, in those three instances the judge would have to direct the jury
that on the defence of provocation the evidence of the womans condition was
admissible on the first and subjective inquiry but not on the second and objective
inquiry. Their Lordships respectfully differ. This is not wholly correct. As explained
above, the evidence of the womans condition may be relevant on two issues: whether
she lost her self-control, and the gravity of the provocation for her. The jury will then
decide whether in their opinion, having regard to the actual provocation and their view
of its gravity for the defendant, a woman of her age having ordinary power of selfcontrol might have done what the defendant did. More importantly, in each of these
three cases the defendant will in principle have available to her the defence of
diminished responsibility. The potential availability of this defence in these cases
underlines the importance of not viewing the defence of provocation in isolation from
the defence of diminished responsibility. These two defences must be read together to
obtain an overall, balanced view of the law in this field.
Reform
Partial Defences to Murder (2004)
1.13 that the principles which should govern a reformed partial defence of provocation are:
1) unlawful homicide that would otherwise be murder should instead be manslaughter if:
(a) the defendant acted in response to
i. gross provocation (meaning words or conduct or a combination of words and conduct
which caused the defendant to have a justifiable sense of being seriously wronged); or
ii. fear of serious violence towards the defendant or another; or
iii. a combination of (a) and (b);
and
(b) a person of the defendants age and of ordinary temperament, i.e. ordinary tolerance
and self-restraint, in the circumstances of the defendant might have reacted in the same or
a similar way.
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Diminished Responsibility
Definition
Diminished responsibility is a defence only to murder and, if successful, reduces the charge
to manslaughter.
Diminished responsibility: the defendant must show that he or she suffered from:
(i)
an abnormality of mind
(ii)
arising from
a) an arrested or retarded development of the mind; or
b) an inherent cause: or
c) an injury or disease;
(iii) which substantially impaired the defendants responsibility for his actions
Diminished responsibility is a defence only to murder. Even then it is only a partial defence.
If successfully raised the accused will be acquitted of murder, but convicted of
manslaughter. The significance of this is that on sentencing for manslaughter the judge has
a discretion as to the appropriate sentence, while for murder only the life sentence can be
imposed.
Diminished responsibility is defined in the Homicide Act 1957, section 2(1):
Where a person kills or is a party to the killing of another, he shall not be convicted of
murder if he was suffering from such abnormality of mind (whether arising from a
condition of arrested or retarded development of mind or any inherent causes or induced
by disease or injury) as substantially impaired his mental responsibility for his acts and
omissions in doing or being a party to the killing.
Burden of proof
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It should be stressed that if the defendant wishes to raise the defence of diminished
responsibility the burden of proof of establishing the defence is on him, but only on a
balance of probabilities. This has been held to be consistent with Article 6(2) of the
European Convention on Human Rights because the prosecution is required to prove the
elements of murder and the burden on the defendant of raising the defence of diminished
responsibility rests on him only if he wishes to raise it. Indeed the judge should not instruct
the jury about diminished responsibility unless the defendant has consented to it being
raised.
In practice if the defendant pleads guilty to manslaughter on the grounds of diminished
responsibility the prosecution will often accept such a plea and not seek to disprove it.
However, the CA in Vinagre (1979) has stated that the prosecution should do this only
where there is clear evidence of the defendants mental abnormality. If there is not the jury
should be presented with the evidence and be left to decide whether there is evidence of
diminished responsibility or whether the defendant must be convicted of murder.
Abnormality of mind
R v Byrne [1960]
Details of Case -> The appellant had strangled a girl in a youth hostel and horrifically
mutilated her dead body. Medical evidence showed that the appellant was a sexual
psychopath, which meant that he suffered from violent perverted sexual desires which he
found it difficult or impossible to control. This mental abnormality was said by expert
evidence not to amount to insanity, but was caused by an arrested or retarded development
of the mind or inherent causes. The issue for the CA was whether this amounted to
diminished responsibility.
Held -> Appeal allowed. Sentence confirmed.
Byrne makes clear, the notion of an abnormality of the mind involves considering whether
the defendants mind is sufficiently different from a normal mind to be classified as
abnormal. This appears to give the jury a wide discretion, although the defendants
abnormality must be established on the basis of medical evidence. What made Brynes mind
abnormal was not his lack of awareness of what he was doing, but that it was impossible or
very difficult for him to control his behaviour. The concept of diminished responsibility is
therefore quite different from insanity, which involves defendants who do not know what
they are doing or do not know that what they are doing is wrong. Although in Bryne Lord
Parker CJ used the term partial insanity, subsequently the CA has warned that in some
cases such a term may confuse the jury and should be avoided.
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Suicide Pacts
Homicide Act 1957, Section 4:
(1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a
suicide pact between him and another to kill the other or be a party to the other being
killed by a third person.
(2) Where it is shown that a person charged with the murder of another killed the other or
was a party to his being killed, it shall be for the defence to prove that the person charged
was acting in pursuance of a suicide pact between him and the other.
(3) For the purposes of this section suicide pact means a common agreement between two
or more persons having for its object the death of all of them, whether or not each is to take
his own life, but nothing done by a person who enters into a suicide pact shall be treated as
done by him in pursuance of the pact unless it is done while he has the settled intention of
dying in pursuance of the pact.
Section 4 of the Homicide Act 1957 provides that if the defendant kills another in pursuance
of a suicide pact he or she is guilty of manslaughter, not murder. The definition of a suicide
pact is found in section 4(3).
An example of a suicide pact is where a husband and wife agree that they will due together.
The plan is that the husband will shoot his wife and then turn the gun on himself. He kills
his wife, but a passer-by-stops the husband killing himself, or he loses his nerve and cannot
do it. In such a case the husband could face a charge of murdering his wife. If he could show
that he shot his wife in pursuance of a suicide pact, as defined above, then his charge would
be reduced to manslaughter. It should be noted that under section 2(1) of the Suicide Act
1961 there is an offence of aiding, abetting, counseling, or procuring the suicide of another,
and this carries a maximum penalty of fourteen years. So a person who helps another
commit a suicide as part of a suicide pact will simply be convicted of this offence, suicide
pact being a defense only to a charge of murder. The Law Comission has recommended the
abolition of the defense of suicide pact as part of their reform of the law of homicide.