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Published: Fri, 02 Feb 2018

Provocation is a common law

Provocation is a common law and a partial defence to a charge of murder. Provoked killings have long been thought to be less serious than unprovoked killings. Historically, it was available in limited circumstances such as where defendant vindicated his personal honour by killing his offender . As Willson suggests: “it was considered the natural response of an honourable man, and certainly not such as would justify the mandatory sentence” . The essence of the defence at that time was that a violation of honour could partly excuse malice actions on behalf of provoked defendant. From these beginnings, provocation was a completely distinct partial defence to murder and had its own entity of legal principles and rules. The classic common law definition could be found in R v Duffy where “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…” The recommendation made by the Royal Commission on Capital Punishment in 1953 has introduced significant changes to the common law formulation of provocation by enactment of s.3 of the Homicide Act 1957 which states:

“Where on 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 was enough to make a reasonable man do as he did shall be left to the jury; and in determining that question the jury should take into account everything both done and said according to the effect which, in their opinion, it would have had on a reasonable man.”

Thus to establish the provocation defence two requirements need to be considered: subjective and objective tests. The first is that the defendant was provoked to lose self-control by something said and/or done, whether or not by the victim and whether or not directed at the defendant. The word “provoked” should be interpreted as a human act that can be regarded as a provocation, rather than any kind of event which leads the defendant to lose self-control. Lord Steyn in Acott stated that it is required “some evidence of a specific acts or words of provocation resulting in a loss of self-control caused by fear, panic, sheer bad temper or circumstances would not be enough”. However, departing from the decision in Doughty, almost any conduct could be interpreted as provocative and, thus provides the accused with the defence.

Subjective test tends to draw the line between intentional killings and provoked killings by separating a spontaneous release of passion and a desire for revenge. According to Devlin J in Duffy “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 the time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is the essence of provocation”. The word “sudden” does not appear in s. 3 of the Homicide Act 1957 and narrow the effect of doctrine considerably. It suggests that the retaliation must occur fairly quickly after the provocation has been received, rather than simply asking whether D was still in an uncontrolled state at the time of the killing. Some commentators argue that the subjective test is design for man reaction as he tends to respond immediately and angrily to provocative conduct, whereas woman tends to have a “slow burn anger”.

The objective test, according to Lord Nichols in the case of R v Holley, allows the judge to direct jury on consideration of whether the defendant should have lost self-control by reference to the standard of the reasonable or ordinary person. It has been considered in Camplin that the jury should take all relevant characteristics of the defendant at the time considering the objective test although it has led to uncertainty in determining characteristics of the reasonable person. Lord Hoffman in Smith concluded that to determine the defendant’s degree of control all his characteristics are relevant and which society could reasonably expect of the defendant and which it would be unjust to take into account. However, later in Holley, the court disapproved the evaluative test in Smith stating that it should comprise two separate elements: firstly, the jury should evaluate the gravity of provocation which includes characteristics and circumstances of the defendant; secondly, the loss of self-control should be recognised by reference to a uniform objective standard which is qualified by age and gender of the defendant. Graham Virgo argued that “it is not possible to assess the gravity of provocation on the ordinary person without regard to certain characteristics and circumstances of the defendant”.

Generally it has been considered by many legal academics and even all nine judges in Holley were agreed that the sphere of provocation in its present form is unsatisfactory and needs legislative reform. Some commentators proposed a few reasons for abolishing the provocation defence. Jeremy Horder, for example, suggests that killing in righteous indignation is as dangerous as if it was prompted by greed or envy. There is no good reason for killing in anger, and so it should not provide a defence. Herring states that the jury, in determining a reasonable response for a person with the defendant’s characteristics, may rely on racial and sexual stereotypes. The Australian case of Masciantonio clearly shows the ways where provocation leads to stereotyping. According to Wells, the provocation encourages the defendant to defame the deceased who is unable, of course, to rebut the evidence that the defendant, for instance, was continually insulted and demeaned by his wife resulting in his lost of self-control. Herriet Harman, minister for women, said: “Changing the law will end the injustice of women being killed by their husband and then being blamed. It will end the injustice of the perpetrators making excuses saying it’s not my fault – it’s hers.” Another criticism of provocation is that it is biased in favour of male and tends to exclude the experiences of women, particularly abused women. Whereas men tends to fall easily within the boundaries of provocation, women who killed have struggled to have their circumstances recognised by the courts.

Ian Kelcey, chair of the Law Society Criminal Law Committee, described the present law of provocation as following: “This review has long been needed, particularly with regard to the provocation defence in domestic abuse cases. There is an unhelpful mishmash of statute and common law, so the government’s desire to tidy up the lack of clarity that exists around these kind of offences and defences is to be welcomed.”

Recently, before the Coroners and Justice Act 2009, the Law Commission (Law Com No 304) has proposed radical reform of the defence of provocation. The recommendations come into two parts: situations where the accused acts in response to a fear of serious violence; and where he acts in responds to words or conduct that constitute “gross provocation”. However, the problem of defining what is gross provocation still exists. To be gross provoked by the deceased’s words or conduct the defendant must have “justifiable sense of being seriously wronged”. In fact it is welcomed, since irritation such as crying babies or predictable reactions to one’s own aggressive behavior would no longer suffice for the defendant to rely on the partial defence. But cultural complexity could lead justice to considerable difficulty in determining what constitutes gross provocation if the defendant belongs to some religious or cultural group. The best example of it is the case of Mohammed where the defendant killed his daughter because she refused to obey her religious obligation.

According to the new Coroners and Justice Act, which has received a Royal Assent on November 12, the common law of provocation will be abolished on the coming into force of s. 56. Section 3 of the Homicide Act will no longer to have effect. This act defines two distinct partial defences or “qualifying triggers”. The first is whether accused’s loss of self-control was attributable to his or her fear of serious violence from deceased against himself or another person (s. 55 (3)). The second appears, according to s. 55 (4) and (5), where the accused’s loss of self control was attributable to things done or said or both which constituted circumstances of an extremely grave character, and caused the accused to have a justifiable sense of being seriously wronged. These are further elaborated upon in s. 55(6) (a) and (b) which bars the defendant from relying upon a qualifying trigger which he has incited “for the purpose of providing an excuse to use violence”. This considers the issue of self-induced provocation addressed under the previous law by Edwards and Johnson. The burden of proof rests on prosecution, the jury must assume that the defence might apply wherever the judge finds sufficient evidence adduced to raise the issue (s. 54 (5), (6)).

Generally, as it considered in Duffy, the law of provocation required “sudden and temporary loss of self-control”. Delay response might mean a recovery of control leading to a revenge killing, it no longer precluded reliance on the defence as a matter of law. However, the new Act in responding to that problem removed the requirement of suddenness making it clear that it will not be sufficient “whether or not the loss of control was sudden” and the defendant cannot rely on the defence where he “acted in a considered desire for revenge”(s. 54 (2)). Now men and women who suffered a “slow burn” of domestic violence over a period of time can easily get an access to the partial defences under the new proposals, overturning the current law which requires them to have acted on the spur of the moment. Therefore, it remains evidential purpose – the long delay between temper explosion and killing means that it will be recognised by the jury as more likely that the defendant was acting in revenge.

The objective test, according to s. 54 (1) (c), will only apply if a “person of defendant’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of the defendant, might have reacted in the same or in a similar way to the defendant”. S. 54 (3) clarifies that the reference to D’s circumstances covers “all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint. Provisions in this act codify the outcome of the Privy Council decision in Holley.

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