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Published: Fri, 02 Feb 2018
The defence of provocation
Analyse the defence of provocation, with special consideration given to the changes provided by the case of R v Smith (Morgan)  4 All ER 289
The Position Pre R V Smith
Initially the common law was to be followed in regards to provocation. Under the case of R v Duffy 1 provocation was stated to be some act done by the victim to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control. Whether or not the conduct of the victim had to be capable of constituting provocation is an issue for judge, but words alone could not constitute provocation – Holmes v DPP 2 Under common law the test that was used was that if the conduct would have caused the reasonable person to lose control then this will amount to provocation – R v Bedder 3
Now the offence is a statutory one under s.3 Homicide Act 1957 providing that “Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or 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 be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which in their opinion it would have on a reasonable man. ” Section 3 places an evidential burden on the defendant. He must raise sufficient evidence of provocation for the judge to leave the defence to the jury. Whether the defendant has produced sufficient evidence is a matter of law for the trial judge alone to decide. If there is evidence of provocation it is then the duty of the court to leave the question of the merits of the defence to the jury – Cascoe 4
Since the 1957 Act, it has been capable for anything to constitute provocation, including words alone, actions by third parties, and provocation directed at third parties. For example in R v Doughty 5 the defendant had killed his baby and wanted to argue that he had been provoked by the child’s persistent crying. On appeal it was held to be misdirection for the trial judge to tell the jury that the persistent crying of a 17-day-old baby could not constitute provocation, and therefore quashed the murder conviction and substituted a conviction for manslaughter. The jury should have been directed to consider how the reasonable man would have responded.
There must be a ‘sudden and temporary’ loss of self control and the question asked is how would a reasonable person have reacted if faced with such provocation? Sudden and temporary’ loss of self control does not mean total loss of control – D might still know what she is doing but is unable to restrain herself. It must be loss of control through anger -thus there is no ‘cooling off’ period for planning or revenge but the law does allow for cumulative provocation.6
The courts then began to hold that to a certain extent the reasonable man is attributed with the defendant’s particular characteristics which might be relevant to the provocation thus in DPP v Camplin 7 the defendant was a 15 year old boy who, having been buggered by the deceased, was then taunted by him. The defendant killed the deceased by hitting him over the head with a heavy frying pan. He was convicted of murder following a direction by the trial judge to the jury that they were to judge him by the standards of the reasonable adult, not by a reasonable 15-year-old boy. The Court of Appeal allowed the defendant’s appeal on the basis that a more subjective test, which took account of the defendant’s age, should have been applied. This was endorsed by the House of Lords.
The House of Lords more recently had to decide whether the judge should exclude from the jury’s consideration characteristics and past behaviour of the defendant at which the taunts are directed, which in the judge’s view are inconsistent with the concept of a reasonable man. In R v Morhall 8 the defendant, who had been indulging in glue sniffing, was taunted about his addiction by V. A fight ensued, in the course of which D stabbed V, who subsequently died. When directing the jury, the trial judge made no reference to any special characteristics of the D which the jury might think would affect the gravity of the provocation. D was convicted and on appeal, contended his addiction to glue sniffing was a special characteristic which should have been taken into account as affecting the gravity of the provocation.
The Court of Appeal dismissed the appeal 9, holding that characteristics repugnant to the concept of the reasonable man could not possibly be included, for example, alcoholism or drug addiction, when contrasted with characteristics such as physical deformity, colour, race, creed, impotence, and homosexuality). However, the House of Lords allowed the appeal and substituted a conviction for manslaughter. Lord Goff made the following point, In DPP v Camplin, the House of Lords had stressed that the jury should take into account “all those factors” or “the entire factual situation” which would affect the gravity of the provocation. There was nothing in that judgment to rule out any disreputable characteristics; the reasonable man test introduces a standard of self-control which had to be complied with if provocation was to be established in law; D’s addiction to glue sniffing should have been taken into account as affecting the gravity of the provocation, since it was a characteristic of particular relevance as the words of the deceased which were said to constitute the provocation were directed towards D’s addiction to glue sniffing and his inability to break himself of it.
He went on to state that a distinction may have to be drawn between two situations: one where the D is taunted with his addiction or even with having been intoxicated on some previous occasion, in which case it may where relevant be taken into account as going to the gravity of the provocation, and two where the D was intoxicated in some way at the relevant time, which may not be so taken into account, because that, like displaying a lack of ordinary self-control, is excluded as a matter of policy.
A major fault line had arisen in the law of provocation. One line of authority, such as the one endorsed in the majority opinion of the Privy Council in Luc Thiet-Thuan v. R 10, held that the characteristics of D to be attributed to the “reasonable man” were confined to age and gender when the issue was the degree of self-control to be required of D in the face of the provocation. Another line of authority, that followed in Morhall and endorsed by Lord Steyn in his minority opinion in Luc, extended the category of admissible characteristics to such psychological conditions as depression, post-traumatic stress disorder and brain damage. The Court of Appeal cases showed a move to individualisation of the test but in Luc Thiet Tuan Privy Council was taken was a very different view; in essence it was held that mental infirmity which diminishes power of self-control was not relevant characteristic.
The Position Post R V Smith
In Smith, a case of a man with clinical depression, the majority of Law Lords, Lords Slynn, Hoffman, and Clyde adopted the view of Lord Steyn in Luc by three to two that he could rely on the defence of provocation. Thus D’s state of depression should have been considered by the jury when deciding whether a reasonable person would have done as D did by way of reaction to the taunts of V. This conclusion is vigorously contested in the dissenting speeches of Lords Hobhouse and Millet. Thus the stage is set for anything but a set in stone rule.
Of the majority judgments, Lord Slynn’s was the narrowest. In essence, he considered that it would be forensically unworkable to draw any strict division between, characteristics admissible on the issue of the weight of the provocation and, characteristics allowable on the question of capacity for self-control. Accordingly, he considered that when applying the reasonable man test to the facts of the case, the jury should have been directed to consider how a reasonable man afflicted with D’s state of depression would have reacted to the provocation in question.
The judgements of Lords Hoffman and Clyde went beyond this by further reshaping the concepts and language used relation to provocation. Neither judge considered it obligatory for trial judges to make any reference to the reasonable person when directing juries. They were both of the view that the nature of the extenuation at issue in provocation was best explained without reference to any such concept. In their view they should be directed that an acceptable standard of self-control was to be expected from everyone.
They asserted that no licence was to be given to persons with defective characters, such as the pugnacious, the unduly excitable, the short-tempered, or the morbidly jealous. On the other hand, the jury must consider any characteristic possessed by D that has a just bearing on his capacity to exercise self-control. It was accepted that this would not make for clear and coherent doctrine; yet a loss of clarity was thought to be an acceptable price of doing justice for defendants.
What then is the difference between non-admissible defects of character and allowable characteristics? Of particular prominence is Lord Hoffman’s discussion of the Australian case of Stingel v. The Queen 11 where D had killed V, the boyfriend of his former partner, on witnessing, as he had supposed, their act of sexual intercourse. Lord Hoffman agreed with the High Court of Australia that D’s obsession with his former partner was not to be attributed to the reasonable person: “Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide….” So what can taken from the judgments of Lords Hoffman and Clyde is that an admissible characteristic may be temporary or permanent, may fall short of any recognised medical disorder, but will not include the destabilising effects of drugs or alcohol and shortcomings of character.
The dissenting judgements forcefully rejected the majority position in terms of legal analysis and even more forcefully in terms of policy. In their view, unless characteristics relating to the capacity for self-control are confined to age and gender, the distinctiveness of the separate defences of provocation and diminished responsibility is undermined. Undoubtedly, persons with any form of mental instability who have lost self-control because of something said or done will find section 3 of the Homicide Act 1957 more receptive to their needs than section 2. Of particular note is the opinion of both judges to the effect that the majority judgments in Smith are incompatible with the earlier decision of the House of Lords in Morhall And as is well settled if there is incompatibility then, of course, the majority view need not be followed in subsequent litigation.
Is Morhall conclusive then as authority against the majority position in Smith? As already steed the former case decided that an addiction to glue could be attributed to the reasonable person if D was provoked by taunts related to his addiction. Smith decides that D’s state of clinical depression can be attributed to the reasonable person, when determining what degree of self-control should be shown, even though the provocation was unrelated to his state of depression. So in conclusion Smith goes further than Morhall. But there was no argument in Morhall that D’s addiction was relevant to questions of self-control and therefore no decision on the point, although there were strong dicta to the effect that age and gender were the only characteristics germane to the issue of required standards of self-control. Accordingly, there is no conflict of authority in the strict sense. On that view, trial judges should follow the majority in Smith as the authoritative word from the House of Lords on the difficult question of what characteristics are relevant to the standard of self-control required.
The question still remains – how are trial judges to follow Smith? Lords Hoffman and Clyde recommended that trial judges ignore reference to the reasonable man in their directions. Yet without reference at all to the reasonable man, the decisive question that Parliament requires to be put – “whether the provocation was enough to make a reasonable man do as he did” – simply cannot be put. Moreover, Lord Slynn retains the reasonable man standard – the reasonable man afflicted, like Smith, with clinical depression, or whatever other characteristic at issue. As a 3-2-majority decision, there is therefore no majority consensus in Smith for dropping all reference to the reasonable person standard. Judges would be well advised to make reference to the standard in their directions, albeit with the gloss that the reasonable man is merely the ordinary person, an ordinary person attributed with those characteristics possessed by D which either bear on the sting of the provocation or bear on the degree of self-control fairly to be expected of D.
Proposals For Reform
The Law Commission considers the law to be inadequate in this area for a number of reasons. Amongst them the fact that too many offences are caught by the definition and this leads to problems with sentencing and public understanding, and there is discrepancy over the degree of fault required. The Law Commission proposes the abolition of Involuntary Manslaughter and the introduction of three new offences. “Reckless Killing”: where a person, in causing the death of another, was aware of the risk of death or personal injury, and it was unreasonable for them to take the risk under the circumstances as they knew or believed them to be (maximum sentence – life imprisonment). “Killing by Gross Carelessness” where a person causes the death of another, the risk that death or serious injury could result is obvious to a reasonable person, and they are capable of appreciating the risk at the material time. Also, either their conduct fell below what can reasonably be expected in the circumstances, or they intended to cause some injury, or took the risk that it may do so, and the conduct causing the injury constitutes an offence (maximum sentence -10 years). Finally a third offence would apply where intention to cause injury exists but the resulting death is unforeseeable. The Law Commission feels that a charge of murder in that situation is unjust.
Criminal Law, 4th Ed. Catherine Elliott, Frances Quinn Longman
Smith and Hogan: Criminal Law: Criminal Law – Sir J.C. Smith, Brian Hogan
Smith and Hogan: Criminal Law: Cases and Materials – Sir J.C. Smith, Brian Hogan
Textbook on Criminal Law, 6th Ed. ~ Michael J. Allen
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