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Free 2.1 Law Essay

The law dealing with domestic killings is now so unsatisfactory that it is beyond redemption by the courts. Moreover, the proposals for reform recently put forward by the Law Commission represent little improvement on the current position. Discuss

Some Difficulties with the Partial Defence of Provocation

Social, academic and legal commentators alike have roundly criticised existing provisions of criminal law relating to incidents of domestic killing and the defences available in that context. Central to this issue is the partial defence of provocation.

It has been contended that the defence has internal contradictions due to the fact that it is a compromise. There is considerable uncertainty in society as to whether a reasonable person should ever respond to provocation by killing, but the courts have used just such a yardstick in past cases. The objective test, namely "whether a reasonable man would have done as the defendant did," has been subject to the consideration of the House of Lords and the Privy Council no fewer than 4 times in the last 25 years. Smith (Morgan) , probably the leading case in the field, has done little to clarify the situation delivering a problematic 3:2 verdict.

In Smith the defendant argued with the deceased when the latter denied stealing
tools owned by the defendant. The defendant attacked and killed the deceased.
Claiming that he suffered from depression, the defendant advanced defences of provocation and diminished responsibility. The trial judge found that medical evidence about the defendant's depressive illness and its likely influence on his self-control should be disregarded when applying the reasonable man test. However, by a majority of 3:2 the HL held that it was open to the jury to take into account the effect of the defendant's depression in deciding whether he demonstrated the degree of self-control required by the "reasonable man" test. The minority concluded that the jury should be permitted to take the evidence of the defendant's medical condition into account only in deciding whether he was in fact provoked to lose his self-control and in assessing the gravity of the provoking event. They must, however, ignore his depressive illness when considering whether a reasonable person in the same situation would have acted as the defendant did.

Neither of the judicial lines ventured in Smith are above criticism. The minority
approach is problematic due to the difficulty of distinguishing traits of the defendant's personality which affected the gravity of the provocation from their ability to muster self control. An individual's characteristics and personal history are likely to shape not only his or her perception of the gravity of any provocation but also his or her psychological and emotional response to such stimulus.

The majority view, namely that the jury may be required to evaluate the defendant by the level of self-control likely to be exercised by an "ordinary" person who is suffering from the defendant's condition, which reduces his capacity for restraint and self control, may be seen as synthetic and self contradictory and arguably is tantamount to disregarding the established objective test.

Moreover, the fact that under s.3 of the Homicide Act 1957 there are no restrictions on what conduct is capable of "provoking" a defendant to kill, means that entirely innocent conduct by the deceased may be seen as provocation. This runs contrary to one of the fundamental rationales of the defence, which is that the victim in some way "contributed" to the defendant's lethal loss of self control.

It can be contended that the provocation defence raises the emotion of anger over other emotions such as compassion, fear, anguish, and empathy. It is doubtful whether, in a moral context, a killing is necessarily less culpable when performed in anger as a result of provocation. Indeed, it is arguable that it is morally unsustainable for extreme anger causing a sudden loss of self-control to found any form of defence to murder.

The partial defence of provocation carries with it several other problems. First, by establishing a defence where the reaction to provocation is to kill in sudden anger, but not where a killing is planned, the defence favours men who typically react with instant violent response, over women, who generally kill with premeditation from fear rather than rage. This sexual bias in the law has been subject to considerable comment and analysis.

Second, as a consequence of the courts extending the requirement of "loss of self control" in order to accommodate battered woman's syndrome cases, there is no obvious test for distinguishing a provoked killing from a murder inspired by revenge.
Third, the defence can be seen as blaming the victim for the defendant's inability to exercise control. It is a trite observation that the deceased is unavailable to answer defence assertions in court.

It is submitted that the majority ruling in Smith serves to reduce the basic threshold of self-control that individuals are entitled to expect and demand of all members of society. Furthermore, the fact that the burden of proof rests with the prosecution in provocation cases, but switches to the defence where diminished responsibility is at issue, may cause difficulties in cases where a defendant runs both defences. It may also confuse juries that, in cases where the defence do not argue, and no
sensible person could aver, that an ordinary person might have behaved as the
defendant is alleged to have acted, the judge nonetheless has to give cogent directions to inform the jury as to the law of provocation if there is any evidence at all that the defendant acted outwith the boundaries of self-control.

Proposals for Reform

On 4 August 2004 the Law Commission published its Report on Partial Defences to Murder after a year-long consultation period. The Commission's brief demanded consideration of the following key issue:

(1) the law and practice of the partial defences to murder (i.e. the method
by which a defendant can plead manslaughter) provided for by ss.2
(diminished responsibility) and 3 (provocation) of the Homicide Act 1957 with particular regard to the impact of partial defences, where the defendant is the victim of domestic abuse.

Finding deep seated problems with the existing legal provisions, the Law Commission rejected an adherence to the status quo. It was found that theoretical, moral and practical difficulties extend far beyond the "reasonable man" test, originating in the actual meaning of provocation itself. The Commissioners also noted severe difficulties associated with the requirement that there must be a sudden and temporary loss of self-control.

The Commission recommended that it be asked to conduct a review of the law of murder with a view to: considering the definition of the offence and any specific complete or partial defences appropriate; whether the offence of murder should be further categorised on grounds of aggravation and/or mitigation and if so what those classes should comprise; considering the application of a mandatory life sentence to the offence of murder or to specific categories of murder. It was also deemed important to examine how each of the above may be addressed where the offender is a minor and to include a limited review of the law concerning involuntary manslaughter.

The Commissioners' recommendation on provocation was that the principles which should govern a reformed partial defence 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 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.

2) In deciding whether a person of ordinary temperament in the
circumstances of the defendant might have acted in the same
or a similar way, the court should take into account the
defendant's age and all the circumstances of the defendant
other than matters whose only relevance to the defendant's
conduct is that they bear simply on his or her general capacity
for self-control.

3) The partial defence should not apply where
(a) the provocation was incited by the defendant for the
purpose of providing an excuse to use violence, or
(b) the defendant acted in considered desire for revenge.

4) A person should not be treated as having acted in
considered desire for revenge if he or she acted in fear of
serious violence merely because he or she was also angry
towards the deceased for the conduct which engendered that
fear.

5) The partial defence should not apply to a defendant who kills
or takes part in the killing of another person under duress of
threats by a third person.

6) A judge should not be required to leave the defence to the
jury unless there is evidence on which a reasonable jury,
properly directed, could conclude that it might apply.

In the opinion of the author these proposals leaving yawning subjective gaps that will create more ambiguity rather than cure existing uncertainties. Given the difficulties already exhibited in the courts there is a strong likelihood that the recommendations would create new battlefields of criminal litigation. The Commissioners further concluded that the law of provocation be recast in a way that would include those cases involving excessive use of force in self-defence where culpability is sufficiently reduced to justify a partial defence. Accordingly, a specific separate partial defence to murder based on the excessive use of force in self-defence was not recommended. The Commission also found that the diminished responsibility defence should be retained. However, it is submitted that the Commission rightly stopped short of recommending a single partial defence merging the partial defences of provocation and diminished responsibility.

Comment

Whatever view is taken about the merits of the decision of the majority in Smith , few would dispute Lord Hoffmann's statement that the law of provocation in its present form has "serious logical and moral flaws". It is hard to examine the recent decisions of the House of Lords, the Privy Council and the Court of Appeal in this field without suffering an escalating sense of confusion. Professor Sir John Smith concluded an insightful commentary on Smith with the expressive phrase "What a muddle!"

Of course, moral and theoretical difficulties might be disregarded if in practice the defence functioned in a relatively clear and satisfactory way, but this is not the case.
Decisions of appellate courts, not only in the UK but in other common law countries, unequivocally demonstrate that courts find it extremely difficult to apply the law of provocation work satisfactorily in today's world, which comprises societies that have evolved far from those in which the defence first established itself. Given this overview, it is submitted that the Law Commissioners properly resolved to the view that the defects inherent in the defence are not amenable to judicial development, but curable only by legislative intervention.

Bibliography:

Murder and the Reasonable Man, Lee, New York University Press (2003).
With Malice Aforethought: A Study of the Crime and Punishment for Homicide, Blom Cooper and Morris, Hart Publishing (2004).
Criminal Law, Elliot and Quinn, Longman (1998)
Oxford Journal of Legal Studies
Criminal Law Reports
Legal Studies

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