Provocation partial defences to murder

Introduction

Provocation is one of the major partial defences to murder. The defence acknowledges human frailty and mitigates the punishment of the offence of murder. Over the years, it has been argued that the current law on provocation is problematic. In view of this, the <Coroners and Justice Bill 2009> currently before the Parliament suggests to abolish the partial defence of provocation. This essay aims at critically analyzing the existing law, its useful purposes and flaws and the proposed reform. Special references would be made to Law Commission proposal on “Partial Defences to Murder” and the proposal for reform by Minister of Justice as the former affected the Bill and the latter was studied to evaluate the intention behind the reform proposed.

Provocation: The Existing Law

Section 3 of the Homicide Act 1957 modifies the operation of provocation under common law for a defendant who killed with the mens rea for murder to be mitigated to manslaughter under certain occasions. Under S3, the two limbs to be satisfied are (1) a subjective limb as to whether the defendant can show that he or she was provoked by something said or done to lose self-control and kill; and (2) an objective limb that a reasonable man under defendant's situation would lose self-control and do the same as the defendant did. The two limbs from S3 would be considered with the respective common law.

Under the subjective limb, the jury would decide whether the defendant actually lost self-control (though not a complete loss of self-control) while common law requires loss of self-control to be sudden, temporary and almost simultaneous to act of provocation but needs not be immediate, though, more particularly, Lord Taylor CJ in Ahluwalia pointed out that the longer the delay, the more difficult the defendant could raise provocation. The act of provocation could also take place over a long period of time for the defence to stand but the involvement of planning in the offence would most probably not to be qualified as loss of self-control.

Under the objective limb, the extent to which characteristics and circumstances of the accused are to be taken into account were mainly reflected by Camplin, Smith (Morgan) and AG for Jersey v Holley. In Camplin, Lord Diplock held all characteristics which could affect the gravity of provocation should be taken into account while only age and sex would be the relevant characteristics to affect the level of self-control under S3. In Smith (Morgan), it was held that all particular characteristics of the defendant were to be taken into account under S3 and there was no need to distinguish characteristics which affect the defendant's power of self-control and those which affect the gravity of provocation to the defendant. The test proposed by Smith (Morgan) was controversial as doing so would seem to be construing the reasonable man as being the accused and by that it eliminates the objective element on reasonable man test. The leading case now would be Jersey v Holley, where the Privy Council sit by 9 Law Lords rejected the more subjective approach proposed by Smith (Morgan) and reaffirm the approach as in Camplin.

Useful Purposes Of The Defence Under Existing Form

The partial defence do more justice in cases where the defendant, who has the mens rea for murder but less culpable to be convicted with murder due to provocation.

Under S3, special role is given to jury to decide whether the objective element is satisfied and it removed the power of the judge to withdraw the issue of provocation from the jury. This prevents the circumstance where jury feels it would not be appropriate to convict the accused with murder and thus acquitted the accused from murder even though he killed with mens rea for murder.

The role of jury's involvement in deciding cases is important in the way that it prevents the judge to be the arbitrator on issues of fact.

The defence makes important distinction between the mens rea in criminal law in terms of reasonably foreseeable consequences and that in terms of culpability, where under provocation, the latter is found to be of a much lesser extent.

Existing law requires loss of self-control to be sudden, which prevents provocation to be a defence to ill-minded killing like revenge.

By Camplin, the taking into account “sex and age” of defendant in assessing the level of self-control one to be expected would be a just assessment

Perceived Flaws Leading To Proposal For Change

  1. Inherent Contradiction of defence

Under S3, the objective requirement for a reasonable man to act as the defendant did is contradictory as it is argued that reasonable man is unlikely to react to provocation by killing.

  1. Wide range of provocative conduct

Under S3, a wide range of conducts can be treated as provocative including completely neutral acts such as a crying baby. This could be problematic when one considers the underlying principle of the defence, which is contribution of the killing by the victim. The victim might seem perfectly innocent for neutral acts done.

(3) Sudden anger as above other emotions

The defence of provocation allows human's sudden loss of self-control due to anger as a partial defence to murder. This raises the question as to whether the emotion of anger is to be supreme over other kinds of human emotions like fear of violence and despair where no defence is available.

  1. Gender bias

The defence is often argued to be an excuse tailor made for men on the fact that women are unlikely to have the power to kill out of sudden anger. Indeed women attempt the killing via planning, such as in battered woman cases. However, the involvement of planning in a killing is not qualified to be “sudden loss of self-control” as required by S3 and the defence would be withdrawn from consideration in court.

  1. Blurring distinction between killing out of provocation and revenge

In order to address killing by women with battered woman syndrome, the court stretched the subjective requirement of “sudden loss of self-control”. In Baille, the court accepted “slow burn” reaction to provocation, which caused problem to distinction between killing due to a loss of self-control included under S3 and killing out of revenge not to be included under S3. The extent of lapse of time between the killing and provocative act is also found to be uncertain.

  1. Reasonable man on a subjective basis

To take into account particular characteristics of the defendant when construing the reasonable man would mean reasonable man would vary in different cases and was argued that there might be situation where people with bad tempered are able to rely on the defence but not for those with good temper.

Reforms

Under the Bill, the Government proposes to abolish the partial defence of provocation and replaces it with two new partial defences namely loss of control by qualifying trigger of fear of serious violence and/or loss of control by qualifying trigger of things done or said to cause defendant to have justifiable sense of being seriously wronged.

Under the Bill, the defendant has to fulfill three requirements before relying on the defence, i.e. loss of self-control, qualifying triggers and that a person of defendant's sex and age with a normal degree of tolerance and self-restraint and in the circumstances of defendant would react in a way similar to what the defendant did.

The first requirement is argued to be contradictory on the fact that it preserved the most concrete part of the defence of provocation on one hand and abolished the defence on the other hand.

Recall the flaw of gender biased under the existing law, the Bill attempts to address the issue by introducing the partial defence of “qualifying trigger” on “fear of serious violence” with a prerequisite on “loss of control”. The keeping of the “loss of control” requirement would mean that even though there is the presence of “fear of serious violence”, in the absence of “loss of control” as mentioned before in most battered women cases, the defence would most probably fail.

The Bill proposed the removal of “sudden” for “loss of control”, which is encouraging in the way that it makes it clear when situation like Baille arises where any determination of “lapse of time” is no longer required. It also helps cases where the defendants' reactions build up gradually and thus some abuse cases. However the removal would vanish the line between revenge killing and provocative killing.

It seems there are certain rationales on Government's side as to keep the requirement of loss of self-control instead of removing it as proposed by the Law Commission, most probably due to fear of “honour killings” and fear to provide an excuse on killing with full sense. However, these considerations undermined issue of domestic violence and indeed more weight should be put on achieving this ultimate aim. It also seems unjustified for one who is under threatening violence but without losing control to fail to rely on the defence. Actually, some commentaries suggest the separation of the defence of loss of control and fear of violence, which seems to be more appropriate on both solving the concerns of the Government and addressing domestic violence.

The Bill introduced two “qualifying triggers” namely “fear of serious violence” and “justifiable sense of being seriously wrong”. The former trigger is thoroughly discussed above with “loss of self-control” and focus here would be on the latter one. Recall the flaw that a wide range of conducts could be regarded as provocative in nature under the existing law, the introduction of “justifiable sense of being seriously wronged” seems to narrow the range to circumstances with extremely grave character. However, the Bill does not clearly indicate what will be considered as “justifiably seriously wrong” and the extent to which jury should take into account the defendant's characteristics on the issue. The reform here seems to be blurry and constitutes difficulty in operation. The only thing clear under the Bill is its carve-out of “sexual infidelity” to the defence. The carve-out is considered to be an appropriate one in the view that killing due to sexual fidelity should not be acceptable for one to loss self-control and commit the killing especially in the modern civilized society. Under the Bill, it seems to put women in a more favourable situation than men by including “fear of serious violence” which seems to be more available to women and excluding “sexual infidelity” which seems to be more often men's excuse to killing. However, it should be pointed out that this does not constitute any gender bias on the fact than women are physically weaker than men and greater protection should be given to women to attain justice. Moreover, domestic violence and unfaithful relationship are two different stuffs with the former being much more life threatening which require protection by law.

The last major requirement is for people to have normal degree of tolerance and self-restraint with reference to defendant's age and sex. Under the Bill, there seems to be just a renaming of “reasonable person” to “normal person” while maintaining the reasonable person test but to exclude “whose only relevance to defendant's conduct is that they bear on defendant's general capacity for tolerance or self-restraint”, which instead is just an affirmation on Camplin. Moreover, the Bill also explicitly confirms Camplin to be the right decision on considering defendant's sex and age in assessing the normal degree of tolerance and self-restraint and thus means the wide approach taken by Smith is to be ruled out. However, there is no clear indication as to what “the circumstances of defendant” as stated in the sub-section are to be taken into account.

Conclusion

The reform on provocation seems to be unsatisfactory with the greatest failure on retaining of the subjective “loss of control” requirement. The reform not only fails to address the problem of domestic violence but also causes difficulties in law.