criminal law

 According to the ‘justification’ view provocation should only be used as a defence when the defendant’s actions can be partially justified. Therefore it is accepted that the defendant is responsible but acted accordingly as the victim played a part in their own death by provoking the defendant. However the provocation can be aimed at a third party it can be viewed that this should not be evidence because the defendant is indirectly provoked. Furthermore the defendant’s actions are unjustified to an even lesser extent because although  it may be acceptable for there to be outrage it is questionable whether by killing somebody because of the provocation endured by a third party is extreme. This is the stance taken by Gough who feels that modern interpretations of this defence ‘......obscure so much of its moral detail.’

Provocation can also be self induced as illustrated by Johnson (1989) there will still be evidence even if the defendant had started the chain of events leading to the final act. Critics would argue that the Provocation defence is too wide as shown by the above case examples where evidence of provocation has been extended to cover novel situations.

In contrast the ‘pure excuse view is that the defendant is not fully responsible for their actions because of the provocation. However the defendant will not be totally excused and avoid liability. Critics of this view would argue that the defence of provocation allows the actions of the defendant to be excused in situations where it was inappropriate to do so. Those in favour of the current law would argue that there should be a distinction between the loss of self control this should not be put in the same category as murder as it lacks malice aforethought The Law Commission recommend ‘...provocation should be a partial defence, with a successful plea having the effect of reducing first degree murder to second degree murder. A research study found that provocation was the second most popular plea in a sample of murder cases. The recommendation mentioned above would mean there would be fewer cases involving a defence of provocation. This is explained by the following quote. ‘The fact that a provocation plea will have to provide some excuse for an intention to kill, or an intention to do serious injury aware of a serious risk of causing death...’

The subjective test that the accused lost his self-control is also suitable for reform as many critics have asserted. To find whether the defendant had lost his or her self control the classic test found in Duffy is used. A case that illustrates this is Ibrams and Gregory (1981) where the defendants had been provoked by the victim and in retaliation killed the victim. However the Court of Appeal held that there was not a sudden loss of control, it had taken the defendants days to plan and respond to the provocation. To remedy this defect in the law the Law Commission provides that the requirement that there is a loss of self control be replaced by three possible alternatives. The first alternative as most recommended is a negative requirement and is that ‘...the D must not have acted out of considered desire for revenge, whether in response to gross provocation or in response to a fear of serious violence.’

Another problem with there being a sudden and temporary loss of self control is that it is gender biased and discriminatory towards women as supported by feminists. It has been found that men and women react differently to provocative acts. The defence of provocation seems to favour men as the requirement that there is a sudden and temporary loss of control more suited to men who are more likely to react instantly with violence. This is issue is highlighted by the Law Commission; ‘This state of the law is thought to be especially user-friendly to men seeking to plead provocation’. Women often take longer before they lose their self control and this is known as a slow burn. This is especially the case for women who have suffered domestic violence who often endure years of domestic violence before eventually losing self control. In the case of Thornton (No 1) the defendant could not plead provocation because it could not be proven that the defendant responded reasonably. This has caused discussion and debate on the apparent leniency of the law towards men. The courts have reacted to this problem as shown by the case of Ahluwalia (1992), the defendant in this case set her husband alight a couple of hours after the last abuse she claimed provocation and diminished responsibility based on battered woman syndrome. It was found Appeal held that ‘sudden’ does not necessarily mean ‘immediate’. The Thornton case was retried and the defendant had successfully used battered woman syndrome in her defence and he charge was reduced from murder to manslaughter. Professors Mackay and Mitchell suggested merging diminished responsibility and provocation into one defence. However the Law Commission found this to be disadvantageous.

The third requirement is objective in that the defendant must be compared to the reasonable person. It must be established that the defendant had acted as the ordinary person would have done. The rules on interpreting the reasonable man requirement have changed frequently as evident in case law. The case of Bedder v DPP [1954] is the original position in this case the court had compared the defendant to the perfect person and not the ordinary person. The issue here is that the defendant could not be compared to the ordinary person because the ordinary person is not impotent and so would not have reacted. The law developed in Camplin where the House of Lords held that certain characteristics (age and sex) must be taken into consideration to find whether the defendants’ actions can be attributed to their age.

The reasonable person test must be satisfied in order to prove provocation and consists of the gravity of the provocation and the level of self control to be expected. The gravity of provocation are characteristics that would provoke the defendant. The level of self control to be expected is whether how the defendant responds is reasonable to find this the defendant’s age and sex will be taken into consideration. The law as established in Camplin is not reflected in the decision made by the House of Lords in Smith (Morgan James). The decision of this case was criticised by the Privy Council because the defendant’s level of self control was tested subjectively when this should have been against a fixed objective standard In the later case of Attorney-General for Jersey v Holley [2005] it was held that being drunk could not be considered as an influence on the level of self control to be expected. The conflicting decisions of these two cases shows that the law is inconsistent. Interpretation of this requirement has proved to be difficult for the courts. The current law is as established in Camplin the Court of Appeal confirmed this by deciding that Smith had been overruled by Holley in James [2006] . The Law Commission’s recommendation for reform also supports this position; ‘In our view, the function of the reasonable person requirement is to test D’s own reaction against the standards of someone of his or her age possessed of an ordinary temperament....’

It is evident that the defence of provocation is flawed for a number of reasons as shown in this essay. It has been suggested that major reform is necessary. The aim of reform is to make the law relevant, certain and accessible. The Law Commissions’ report has exposed the weaknesses of the current law and suggested how these can be amended. If these changes were to be applied the law would meet the aims of reform.

Bibliography

Books

Herring J, Criminal Law (Oxford 2008) third edition

Greary R, Understanding Criminal Law (Routledge Cavendish, 2002)  

Partial defences to murder report on a reference under s3 (1) (e) of the Law Commissions Act 1965, Great Britain Law Commission (Stationary Office 2004)

Catherine E, Frances Q, Criminal Law, (Pearson Education, 2006)

Journals, Articles and Reports

Gough S, Taking the heat out of provocation, (1999) OJL Vol 19 pp 481-494

The Law Commission (Law Com 304) Murder, Manslaughter and Infanticide

Gardner J and Macklem T (2001b) ‘Provocation and Pluralism’, Modern Law Review 64;815

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