Development of the law

The principle that I am considering for this assignment is that "it is manslaughter and not murder if a person kills or is party to a killing of another due to a loss of control". This principle is very recent as a result of the reform on the law of provocation. The defence of provocation has been around for a very long time, however, it has now been abolished by s43 of Coroners and Justice Act 2009. The Act was granted Royal Assent on 12.11.09. Loss of control is now the partial defence in place of provocation. In this assignment I will illustrate the main stages in this change of approach.

Here is a general timeline of some of the most important cases and developments of the law of provocation:

1707 - R v Mawgridge The defence was first invented

1914 - R v Lesbini - Provocation of such gravity as to make a reasonable man commit homicide - D sane, but hot-tempered and sensitive

1949 - R v Duffy - general rule of provocation

1957 - Section 3 of the Homicide Act

1981 - R v Ibrahims and Gregory Sudden and temporary loss of self-control – subjectively determined

1986 - R v Doughty Provocation of such gravity as to make a reasonable man commit homicide

1992 - R v Ahluwalia - it recognised ‘battered wife syndrome‘ could constitute a valid provocation defence - R v Thornton

1993 - R v Richens - Provocation - requires complete loss of control, but does not require that he did not know what he was doing - subsequent lies are probative of guilt

1995 - R v Humphreys - The last straw principle - Battered Wife syndrome

1996 - R v Thornton (no2) - Battered women syndrome was reaffirmed -

1997 - R v Acott - Provocation, not temper

2000 - R v Smith (Morgan James) - Fear became a new defence for women

2005 - R v Mohammed - Provocation – objective, reasonable man test adopted - Holley followed - precedent, PC case favoured over House of Lords

2005 - Jersey v Holley - suggested that it is a need to an urgent reform of law of provocation - overruled fear as defence

2006 - News - But the defence of provocation should not be available in "trivial" circumstances such as adultery.

2008 - Men who murder their wives will no longer be able to use the excuse they were provoked by nagging or infidelity

2009 - Ending the provocation defence in cases of "infidelity" is an important law change and will end the culture of excuses. - Reform of Law

2009 - Coroners and Justice Act

The law of provocation was introduced many years back, during 1706, in the case of R v Mawgridge (1707), that is how old provocation is as a defence to murder. It was “at a time when murder was a capital offence, as a concession to human frailty which would excuse a man for his loss of self-control.” The principle seemed to remain unchanged for quite some time. Contrary to this, in the nineteenth century the defence of provocation developed rapidly. The legal principles changed, and was argued for and against, subject to extensive criticism as being gender biased, in favour of men. Harriet Harman, says that “we should find a better alternative to provocation. My concern is that the effect of the provocation defence is that the victim is blamed for own death, responsibility for the offence falls not on him but on her…and although manslaughter carries a maximum of life imprisonment sentences for domestic homicide generally do not reflect the seriousness of taking another's life in a violent act.”

In 2008 the government proposed to reform the law on murder, manslaughter and infanticide. However, even though now that the law has changed it is still a subject of much criticism about how ‘appropriate' the new laws are in a matter of applying to cases, taking in to consideration the current social environment, and how relevant it will be in favour of the community and how equal it is to both genders. In relation an old comment by Viscount Simon, that I found says that "… the application of common law principles in matters such as this must to some extent be controlled by the evolution of society." I guess, in the past men were generally seen higher than women, which in effect set common laws according to that of the positions of men and women in society.

Relating back to the case of R v Mawgridge (1707), this case mentioned the first principle of provocation as to loss of self-control. The two parties have a verbal collision, with some assault, which then results in John Mawgridge, killing William Cope with a sword. He struck him and stabbed him on the left part of his breast resulting in his death. Mawgridge pleaded not guilty, however he was convicted of murder. Provocation in his case was not a defence, this was held after a wide discussion, as this was the first time provocation was discussed in depth compared to previous cases, it only set out the basic principles of provocation which was that “no words of reproach or infamy, are sufficient to provoke another to such a degree of anger as to strike, or assault the provoking party with a sword, or to throw a bottle at him, or strike him with any other weapon that may kill him; but if the person provoking be thereby killed, it is murder.”

Taking this as the starting point of the defence of provocation, as mentioned earlier, remained pretty much the same for a over 200 years. During the nineteenth century principles changed as with the following cases. The law on provocation developed and is still developing today. The next case I would like to discuss in relation to the development of the law on provocation is the case of R v Lesbini [1914] CA. Here it relatively upholds the basic principle of provocation, only to add another aspect to it, and of course with the language of recent times it is by now clearer to understand the law on provocation. In this case D shot Alice Storey with a revolver after she had made what he thought was a racist comment. He chased her before shooting her with a pistol from a shooting gallery where she was an attendant.

Here it is agreeing with the principle of the Mawgridge 1706 case in relation that words cannot be sufficient as to provocation, to reduce murder to manslaughter. It was held that the provocation was very little and that a reasonable man would not have responded so strongly to such little provocation, and he was convicted of murder. Lord Reading CJ states that "The Court of Criminal Appeal is not minded in any degree to weaken the state of the law which makes a man who is not insane responsible for the ordinary consequences of his action". relatively, this is when the principle of “reasonable man” was a matter of discussion and taken in to consideration, which I will discuss as I refer to the relevant cases.

Next in line is a very important case in the history of the defence of provocation as it set out a legal principle of provocation clearly. In this case of R v Duffy [1949] CA the defendant killed her husband, with a hatchet and a hammer, after mistreatment while he was asleep. Here the classic definition by Devlin J was upheld, at trial Devlin J used the following words which the Court of Appeal thought it might well stand as a classic direction given to a jury: "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.”

Therefore, now we can see how loss of control comes in to act, though at that time it must have been a sudden loss of control, in contrast with today loss of control need not be sudden.

By 1957, The Homicide Act was introduced, this act was “enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice (except in limited circumstances), reforming the partial defence of provocation, and by introducing the partial defences of diminished responsibility and suicide pact. It restricted the use of the death penalty for murder.”

With the Homicide Act, section 3 modified the common law defence of provocation. Previous categories of conduct which amounted to provocation were removed, e.g. “grossly insulting assault, seeing a friend or relative attacked, seeing a citizen being unlawfully deprived of his liberty and seeing a man committing adultery with one's wife.” The principles set by the case of Duffy 1949 were set out in legislation. They also were clear and simplified with two conditions, Firstly, it was the subjective condition which was the sudden loss of self control (R v Duffy [1949]). This is a subjective test based solely on the actual effect the behaviour.

Secondly the Objective condition. The jury must also find that the reasonable person would have done as the defendant did (R v Duffy [1949]).

The act allowed the issue to remain open, allowing for the first time words to constitute provocation, this meant that it was inevitable that the accused's personal characteristics should be considered by the Court when considering the gravity of the provocation.

R v Ibrams and Gregory (1981) in this case the sudden and temporary loss of self-control was subjectively determined. The defendant had been repeatedly bullied and otherwise provoked by the victim within a week before they attacked the victim in his sleep, to avoid further bullying. Victim died as a result of the attack that was intended to break his arms and legs. The defendant was guilty of murder, as this shows that there was no sudden loss of self-control, in reference to the case of Duffy 1949, as the killing was a week later. Lawton LJ stated that:

“Nothing happened on the night of the killing, which caused [I] to lose his self-control. There having been a plan to kill [V], his evidence that when he saw him all the past came to his mind does not ... provide any evidence of loss of self-control ... Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is the essence of provocation [Duffy (1949) CA].”

During the case of Smith, R v (Morgan James) (2000) HL a new principle was set out and fear became a defence for women, this was regarded as a sympathetic approach by the court.

In R v. Smith (Morgan) in determining under section 3 of the Homicide Act 1957 whether the provocation was enough to make a reasonable man do what the defendant did, whether the degree of self-control exercised by the defendant was that which reasonable people with his characteristics would have exercised. In deciding whether the defendant was in fact provoked and whether the objective element of provocation was satisfied, all the particular characteristics of the defendant were to be taken into account. So the provocation test became more subjective to the particular defendant rather than objective and based on the reasonable man.

However this principle was overruled by the case of Holley, Jersey v [2005] PC, the subjective element to this case requires the Jury “to assess the gravity of the provocation by reference to the defendant's individual characteristics in deciding if he lost self-control”. The defendants alcoholism should not have been taken into account.

The objective element was that “The jury are required to apply a uniform, objective standard of the degree of self-control to be expected of an ordinary person of the defendant's sex and age when judging whether his loss of self-control was sufficient to satisfy the defence.” The defendant was not guilty of murder for other reasons so this cannot now be considered correct on this point. “Whilst the advice of the Privy Council is said to be only persuasive this was a judgment of nine Law Lords sitting as the Privy Council. It is extremely rare that so many judges sit unless the case is of massive importance. This ruling can be seen as binding, until the House of Lords (or Parliament) decides otherwise.”

In 2008 The Law Commission argues that the partial defence of provocation is “inherently contradictory” (Law Com CP No 173, para 1.23) and considers that there “has never been a time when the doctrine was fully coherent, logical or consistent.” (Law Com CP No 173, para 4.162) The reform process of provocation commenced in 2003 when the Law Commission were asked to consider the partial defences to murder and pay particular attention to cases involving domestic violence. Subsequent to their proposals in relation to the partial defences, the Law Commission also considered and made radical suggestions with regards to the structure of the law of homicide in general. (Law Com No 304) In July 2008 the Government published a consultation paper containing their reform proposals in relation to the law of murder, which focuses on issues of complicity along with the partial defences. (Ministry of Justice CP/19/08)

In relation to provocation the Law Commission and the Government agree on the following: creating a partial defence for those who kill due to a fear of serious violence; restricting the defence in other situations so it only applies if the defendant feels justifiably and seriously wronged; retaining the objective test but dispensing with the notion of the ‘reasonable person'; and reorganising the role of the judge and the jury. There are, however, some very major differences between the two. Whereas the Law Commission state that they are reforming the defence of provocation, the Government stress that their proposals abolish provocation and replace it with two new partial defences; the Law Commission radically propose abolishing the subjective requirement that the defendant kills whilst suffering a loss of self control, but the Government retains this requirement. The Government proposals state that sexual infidelity should never amount to mitigation and also explicitly recognise the relevance of the defendant's sex with regards to the objective test, but these suggestions are not advanced by the Law Commission.

Space does not permit a detailed analysis of all aspects of these proposals, so the commentary will focus upon a) the circumstances in which the partial defence will apply b) the loss of self control and c) the construction of the objective test.

This comment has provided a critical analysis of the reform proposals in relation to the partial defence of provocation, examining the differences between those forwarded by the Law Commission and the Government. Specific attention has been given to abused women who kill, as such cases have caused the law difficulties over the years. It is argued that the approach adopted by the Government, specifically their retention of a subjective loss of self control, may unduly restrict the partial defence, particularly in situations where the defendant acts due to a fear of serious violence. Despite being motivated by a concern to provide justice for women who kill, the Government's proposals may cause more difficulties than they solve.


Harriet Harman, 2003, Provocation As A Partial Defence To Murder In Domestic Homicide [website] Available at: [Accessed: 18/02/10].

Law Commission, 2004, Partial Defences To Murder. [PDF] Available at: . [Accessed: 17/02/10].

Law Commission, 2006, Letting The Jury Decide: Homicide Law For The 21st Century. [PDF] Available at: . [Accessed: 18/02/10].

McAuley, F, McCutcheon, J. Paul., 2000. Criminal Liability. Dublin: Round Hall Sweet & Maxwell.

Meng Heong Yeo, S., 1990. Partial Excuses To Murder. Sydney: The Federation Press.

Yeo, S., 1998. Unrestrained Killings And The Law. Oxford: Oxford University Press.