The partial defence of provocation

Up until the 12th November 2009, provocation was a common law partial defence only to murder. It originated from the common law but was given statutory form in The Homicide Act 1957, section 3. If a defendant successfully pleaded provocation, the conviction will be reduced to manslaughter rather than murder. Section 3 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 is 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 defence had come under a great deal of scrutiny, the most controversial aspect being its theoretical basis. Academic views differ greatly on the theory of the defence; some argue provocation from a ‘pure excuse' view, for example when a defendant loses his self-control; he is not accountable for what he does. This is not necessarily the case, because perhaps the person was provoked and in that particular situation, could not see another way out; not that he had no self-control over what he was doing. On the other hand, there is the ‘justification' view, which is of the standpoint that the defence of provocation should be accessible to a defendant who was partially justified in his actions. Horder's belief is that the defence of provocation ought to solely be available ‘where the defendant was feeling both anger in the face of grave provocation and also fear for their own or another's safety'. Whereas, Dressler, is not of the opinion that an act can be partially justified in the sense that ‘either a person has a right to act in a certain manner or he does not'.

The third is called the ‘reasonable excuse' view, it combines both the above views in saying that the defence is an excuse, the defendant did not have total control over his actions, however it must have been appropriate under the circumstances for him to experience the anger and undergo the loss of self control.

Was the defendant provoked to lose his self-control and kill, is a question for the jury. He must have been provoked by something into losing his self-control, in Acott it was held that defendant had just lost his self-control, no evidence of any provocation was established therefore it was right that the judge did not direct the jury with regards to the defence of provocation.

Initially, according to the common law, it was the case that words alone could not amount to provocation; this was reversed in section 3 so that words or deeds could be considered provocation; although circumstances cannot. In Doughty the crying of a baby was considered to be a provocative act, despite the fact that this seems to be immoral by our society's standards, it seems the requirement has been interpreted liberally in some cases.

Another requirement is that the defendant must lose his self-control, in Richens it was held that there did not have to be a complete loss of self-control so that the defendant was not aware of what he was doing or was not able to stop; it was enough that he could not restrain himself.

The courts have been quite rigorous that provocation must not be relied on by a defendant, who was acting out of revenge; the loss of self-control must be ‘sudden and temporary'. If there is a gap in time between the provocation and the killing, it will be assumed that the defendant killed in anger not in the heat of the moment while suffering loss of self-control.

The defence has been criticised that it is of a gendered nature. By providing a partial defence where the response to provocation is to kill in sudden anger, but not where a killing is planned; the defence favours men who react in violent anger over women who kill with premeditation from the progressive development of despair and fear rather than rage. Lack of physical strength is more than likely one of the reasons why women do not respond with immediate violence to provocation. On the other hand, there have been cases where the defendant is a man who has used a wife's constant ‘nagging' or unfaithfulness as an act of provocation which instigated them to lose their self-control. According to Horder, the sentences in these cases have been astonishingly low. Even though the Sentencing Guidelines Council (2005) suggests that they should not be dealt with lightly.

In cases concerned with battered women, the courts have heard evidence that battered women suffer a ‘slow burn reaction.' Whereby when they are provoked, the anger slowly builds up, until they eventually ‘snap', which can be some time after the instance of provocation.

In R v Ahluwalia the court of appeal confirmed that while it still has to be shown that there was a loss of self-control because of the provocative act; it does not mean that a gap in time between the act and the killing renders the defence unavailable. The greater the time span between the two acts, the harder it will be to prove the ‘sudden and temporary loss of self-control and its direct association with the provocative act. Despite this Ahluwalia's final appeal succeeded on the grounds of diminished responsibility not provocation, although the fatal act could have been a last minute loss of control. The willingness to acknowledge evidence of diminished responsibility in this case suggests that battered women are more likely to incite a favourable judicial response if they go down the route of medical-type excuses rather than the partial justification of provocation.

Humphrey's appeal succeeded because the cumulative effects of many years of abuse were taken into consideration. In Thornton's case it was accepted that ‘Battered Woman Syndrome' (BWS) was accepted as a ‘relevant characteristic' for consideration. Nevertheless, BWS is not a legal defence to murder, it is used to explain the characteristic psychological responses to abuse by a victim such as ‘low self-esteem, self-blame for the violence, anxiety, depression, fear, general suspiciousness, and the belief that only they can change their predicament'.

The Law Commission reviewed provocation in several different reports, highlighting areas for reform and maybe even abolition. Some issues raised were that the defence has internal contradictions because it is trying to find the middle ground. It raises the question whether a reasonable person should ever kill in response to provocation. The objective requirement of section 3 “whether a reasonable man would have done as the defendant did” has been deliberated by the House of Lords in cases such as R v Smith (Morgan) where the defendant was a manic depressive who in the midst of a row with the victim, stabbed him. The question asked was what level of self-control could have been expected of Smith? It was held that all characteristics should be included. This issue was re-visited by the Privy Council in Attorney-General for Jersey v Holley; the defendant was a chronic alcoholic who killed his girlfriend. He tried to plead on the issues raised in Smith (Morgan), but this was disproved and it was held that only the characteristics of age and sex should be taken into account. In cases that came to court later, Jersey v Holley was followed in spite of Smith (Morgan) being the precedent.

The meaning of provocative conduct under section 3 is too wide; no limits therefore completely innocent conduct on the part of the deceased may be classed as provocation. The defence seemed to blame the victim for the defendant's inability to exercise control; obviously the deceased cannot answer assertions in court. Some confusion might have also arisen in cases where a defendant ran both the defence of provocation and diminished responsibility as the burden of proof remains with the prosecution in cases of provocation but with diminished responsibility it is the defence's burden.

With all these problems arising, it is about time the law on provocation was changed. In November 2009, the reforms on the Law of Homicide were given the Royal Assent in the form of the Coroners and Justice Act 2009. Under the reforms, the existing partial defence of provocation has been replaced by a new partial defence based on loss of self-control due to a ‘qualifying trigger'.The qualifying triggers are a) killing in response to fear of serious violence and b) killing in response to words or conduct which caused the defendant to have a justifiable sense of being seriously wronged. Sexual infidelity is specifically excluded from these triggers; this move has been welcomed by women's groups, but criticised by lawyers.