The law of provocation

The law of provocation has been accused of being discriminatory against female defendants, forcing them to plead diminished responsibility to secure a manslaughter conviction. While there is some truth in this, the danger with the proposed reform to the law is that it will move too far in the other direction " and discriminate against males who kill.'

Discuss, With Reference To Both The Current Law And Reform Proposals.

One of the main criticisms of provocation is that it has been accused of being discriminatory against female defendants, forcing them to plead diminished responsibility to secure a manslaughter conviction. The argument is that the partial defence of provocation is biased in favour of men and is inclined to rejecting incidents involving women, particularly abused women. Whereas men tend to ‘satisfy' the requirements of the defence and are ‘awarded' with compassionate sentences.

The discrimination against women in the use of this defence is apparent in the arguments for the pardon of Ruth Ellis (the last woman to hang in the UK). Ellis killed her lover in a rage but provocation was never raised at her trial.

The defence of provocation is a partial defence to murder, thus if successful this will reduce the liability to manslaughter. Provocation is currently outlined in the Homicide Act 1957, s3. The current position is considered to be discriminatory in nature because although the partial defence of diminished responsibility will also provide the same outcome of downgrading a murder into a manslaughter but diminished responsibility holds a stigma which provocation does not. Provocation, at least in theory and unlike diminished responsibility, excuses because the defendant's conduct is (partially) reasonable and not because, as with the insane, they are so lacking a normal rule following response that assigning full responsibility is inappropriate.

The first stage in establishing the defence of provocation is the subjective test. The defendant must be provoked into suffering a ‘sudden and temporary loss of self control' due to the conduct of the deceased. Many academics hold the view that this subjective test favours the natural reactions of men as they are inclined to respond without delay and in frenzy to provocative acts, whereas women are inclined to respond slower anticipating the consequences they face if they react in such an angry manner, i.e. a ‘slow burn' reaction. Lack of physical strength is cited as one reason why women do not respond with immediate violence to provocation. The main criticism is that the partial defence is more concerned with a ‘one-off' angry encounter as opposed to a progressive violent relationship. In the case of R v Duffy [1949] it was initially held that the provocative act must of been as a result of ‘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'.

The framework of the defence was not initially developed with battered women in mind. The ‘sudden and temporary' requirement mentioned above does not allow for the defence to succeed if there is a lapse of time between the provocation and killing. In the case of Ahluwalia the court refused to accept a defence of provocation as the lapse in time was indicative of a ‘cooling off period' that was suggestive of a revenge attack. Although the possibility of ‘slow burn'/ ‘slow motion' reactions to violence was recognised the court held that the greater lapse in time between provocation and killing, the less likely it was that the requisite loss of control could be established. Furthermore the case of Sara Thornton further highlighted the problems of the requirement for ‘a sudden and temporary loss of self-control', which is essentially said to be a male response.

Secondly, the defendant must satisfy the objective test that a reasonable person would react in a similar manner. The reasonable man test established an objective standard of self control against which the defendant's reaction is measured. The main problem however with this feature of the defence is the degree to which the characteristics of the defendant should be attributed to the reasonable person. Who is the reasonable person? To what extent should the sex of the defendant be relevant?

There is a compromise in case law that some characteristics of the accused should be given to the reasonable man, but there is disparity as to which characteristics this should include. In R v Camplin the House of Lords held that the reasonable man should be given whatever characteristics the jury felt were relevant to determine the reasonableness of the defendant's reaction. The majority rejected the approach that considered only characteristics relevant to gravity of the provocation in favour of an approach which considered whether the defendant had exercised the level of self control that could reasonably be expected of him in the circumstances. Due to the campaign work on behalf of women who kill, especially the group Justice for Women, gradually the law seemed to develop to accommodate cases involving battered women. Also this objective test caused the courts major difficulties and thus the House of Lords in R v Smith [2001] adopted a test more subjective in nature. In this case the above distinction between self control and gravity was abandoned. This allowed the level of self control to alter from case to case. For a short time therefore ‘fear' became a new defence for women who killed, and it seemed for a short while at least that the law was evolving so that it would accommodate a defence of provocation for battered women- however this was quickly removed by Holley.

Jersey v Holley [2005] has thrown the law of provocation into position where it is in need of urgent reform. The above information regarding the case of Smith now appears to be bad law insofar as the second objective test is concerned.

Many academics argue that the law has gone in a full circle and thus defects still exists with the current law of provocation as the current position still discriminates against women, particular battered women. Therefore it has been argued that the law of provocation should be reformed. The next section of the analysis explores the reform proposals that have been put forward by the Law Commission.

A couple of attempts to reform the law on provocation have failed in the past. Most recently on the 6th August 2004 the Law Commission has published its final paper outlining all their recommended reforms titled ‘Partial Defences to Murder'. In terms of the law of provocation the Law Commission has recommended the following;

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 defendant's 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.

One clear advantage of adopting the above recommendation is that the objective part of the rule which has been made so confusing by the decision in Holly which made the defence contradictory; Academics such as William Wilson is of the opinion that the current defence has internal contradictions because it is a compromise. It raises the question whether a reasonable person should ever respond to provocation by killing. The ‘objective' requirement, ‘whether a reasonable man would have done as the defendant did,' has been considered by the House of Lords / Privy Council four times in the last twenty five years, culminating in Smith (Morgan) with a 3:2 split. This demonstrates fundamental problems with the concept of the ‘reasonable man.' Again in 2005 this was revisited in Jersey v Holley [2005] PC.

The Law Commission has stated that if the reforms are implemented the confusion surrounding the concept of provocation will finally be clarified and as a result those women that would have been discriminated against such as in the case of Ahluwalia who had to resort to pleading diminished responsibility will now be covered by the above. This would therefore alleviate the fear that the defence is being used by men to kill women.

Furthermore the Law Commission has highlighted the fact the courts have attempted to stretch the requirement of ‘loss of self control' in order to accommodate battered woman's syndrome cases, there is no clear test for distinguishing a ‘provoked' killing from a ‘revenge' killing. The adoption of the reforms will rectify this problem and only the battered women who have been provoked will be able to get redress from this partial defence and not the women who killed just for revenge purposes.

Conclusion

The Privy Council believes Parliament should sort the current law of provocation position as soon as possible. Within less than 4 years, they have pronounced R v Smith (Morgan) [2001] HL to be wrong, in the case of Jersey v Holley.

This means that women suffering from Battered Woman Syndrome may satisfy the first test in Section 2 Homicide Act 1957, but not the second objective test and so appear to be back in the position they were before Morgan Smith and have to rely on diminished responsibility. In fact, their Lordships urged courts to read together these two defences to obtain an overall, balanced view of the law in this field.

Cases such as Ahluwalia illustrates the restrictions placed upon the defence of provocation by the adoption of the gender specific notion of loss of self control. Men ‘snap' when they are attacked, or find their wife in bed with another man, or are nagged by their partner. It is not surprising therefore that men judges have thus far been able to empathise with those men ‘loosing their self control', as it is a kind of loss they can imagine themselves experiencing. Unfortunately the same cannot be said in relation to the level of empathy men judges provide to women who wish to plead the defence of provocation. This is probably because male judges are less able to empathise with ‘slow burn' anger related to women. As a consequence women have been forced to accept a plea of diminished responsibility in order to obtain equal treatment with men.

It is for this reason it is submitted that the law on provocation was created essentially with men in mind, it is therefore discriminatory to women and thus there is a need to clarify the position of the law of provocation through reform. The concern that the law will move too far in the other direction ‘and discriminate against males who kill' is clearly wrong. The law on provocation has thus far just gone round in a full circle which has created confusion around the whole concept. Reform will allow the law to be clarified and also at the same time this will allow women who need it sufficient protection also at the same time male killers will also be protected if they killed out of provocation. At present there is a problem with the law on provocation that ‘institutionalises the idea that an attack by a man on his wife is her fault'.