Critically discuss the extent to which the defence of loss of control in the Coroners and Justice Act 2009 compares to the defence of provocation.

by kokila (student)

Origins of provocation

The notion of provocation distinguishes between murders that were provoked to those which were not provoked (1). Defence of provocation emerged in the 17th century, within the English law’s inflexible structure of homicide. At the time of emergence, there was a general presumption that murder was the result of intentional malice: those convicted were given capital punishment. This presumption of malice was rebuttable by way of evidence of provocation, changing the nature of the offence, from that of murder to manslaughter (2). This was an anomaly. In most crimes, provocation was a matter that taken into account at the time of sentencing, it was not capable of altering the nature of the offence. The morality issue in question is whether it is acceptable for society to mitigate a killing on the basis that the accused allowed himself to be provoked.

Common law of provocation

In the case of Mawgridge, Lord Holt listed the four types of provocation that were ‘legally sufficient’ to give rise to a defence of provocation. These were: angry words followed by assault, the sight of citizen being lawfully deprived of his liberty, the sight of a friend or relative being beaten and the sight of a man in adultery with accused wife (3). The types of provocation that were ‘legally insufficient’ included words alone.

Sufficiency Factors

One significant factor appears to be ‘actual violence’ or ‘physical threat’. An act from the insufficient provocation category can be elevated to that of sufficient category if actual violence or physical threat is present. The violence/threat is not required to be grave in nature; trivial action such as a 'flip upon the forehead’ were sufficient. (4)

The unlawfulness of the deceased’s conduct is another factor for sufficiency: sight of a man in adultery with the accused wife was a ‘legally sufficient’ provocation. During the 17th century, adultery was a serious offence punishable by the courts. The defence for provocation arising on the basis of the deceased conduct rather than on the fact that the provocation act committed by the accused in sudden passion is ‘utterly inconsistent’ with the concept of provocation (5).

The requirement for the loss of control to be ‘sudden passion’ is another factor for sufficiency. If there is evidence of ‘precedent malice’ the defence of provocation is not applicable. The distinction is based on perception of ‘precedent malice’ acts to be ‘true wickedness’ and acts of ‘sudden passion’ to be the result of human frailty or weakness of control (6). The case of Duffy defines provocation to be loss of control that is ‘sudden and temporary’ as a result of which the accused ‘so subject to passion as to make him or her, for the moment, not the master ...

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Section 3 of the Homicide Act 1957

The case of Bedder is considered to be the high water mark of objectivity in relation to provocation (7). This rigid disposition of objectivity gave rise to ‘illogical, irrational, unjust and unfair’ judgment. As a result of this, a review carried out by Royal Commission on Capital Punishment Report (1953) into the law of provocation lead to section 3, Homicide Act 1957 being enacted.

The defence of provocation was a mixture of common law and statute. Section 3 of the Homicide Act was not intended to codify the law of provocation (8).In simplest sense; the defence rests on a subjective condition and objective condition.

Prior to the act, in common law, words alone did not amount of provocation. (9) The act changed the common law position by expressly stating that ‘things said’ could amount to provocation. Prior to the act, the judge had discretion to remove the partial defence of provocation if he felt the level of provocation was insufficient. The act changed this position. In cases where there is evidence and not just assumption of provocation, the question of whether the level of provocation is sufficient to render a partial defence is to be addressed in whole by the jury.

Loss of Control

The main criticisms directed at the defence of provocation lies in its ‘oxymoronic objective standard of reasonableness’ and failure to accommodate women victims of domestic violence by accepting cumulative provocation. (10) Prompting academics to call the defence ‘not applicable to modern times’ (11). The Coroners and Justice Act 2009 (CJA 2009) is government’s response to the Law commission report published in 2006, calling for a complete reformation of the law of homicide.

CJA 2009 received royal assent on the 12th of November 2009, with sections 54-56 coming into play on the 4th of October 2010. The common laws of provocation was abolished by s56(1) of the CJA 2009. S.3 homicide act 1957 was repealed by s 56(2) of the CJA 2009.

The new partial defence for the loss of control constitutes three elements, which are provided by s54(1). Under s.54(1)(a), the defendant must have lost self- control. This is a subjective test and is in accordance to the defence of provocation common law. Section s.54(2) expressly states that loss of control needs not be sudden. Under s.54(1)(b), qualifying triggers required by virtue of s55 are fear or anger. The final requirement is contained in objective test defined in s.54(1)(c): would a person of the ‘defendant sex and age, with a normal degree of tolerance and self- restraint and in the circumstances of defendant have reacted in the same or similar way to the defendant’? By virtue of s54 (3) the ‘circumstances of the defendant’ are all circumstances of defendant except those which are relevant to defendant ‘general capicity for tolerance or self –restraint’. The objective test is as established in Holley and Camplin. Therefore, old common law which be in application to assist the manner in which the subjective and objective tests are applied.

Changes of the old law of provocation

Qualifying trigger

Under s54(1)(b) of the CJA 2009, a ‘qualifying trigger’ is required. The two qualifying triggers defined in s55 of the act can be viewed as two limbs of the defence, as they differ in character (12).

The loss of ‘sudden’ requirement

Although s3 of the Homicide act 1957 does not specifically state that the loss of self-control must be sudden. The case of Duffy, defines the common law position of provocation to be ‘sudden and temporary’ to enable a distinction between revenge killing and murder that occurs as a result of loss of control being induced by acts of provocation. The CJA 2009, in stark contrast has eliminated the need for loss of control to be sudden by virtue of s54(2). One may argue that this ‘blurs’ the line between acts of provocation and revenge, which was previously achieved with easy. The CJA 2009, covers this aspect by virtue of s54(4), which states that defendant should not have acted in a ‘considered desire for revenge.’ Although the act does not specify exactly what constitutes as considered, it clearly eliminates any planned attacks and grudged killings.

The case of Ibrams, established that the presence of ‘cooling off period’ signified that loss of control was not sudden. This was the source of a major criticism of the loss of ‘sudden’ requirement is that it favours men as opposed to women, clearly illustrated by the challenges faced by battered women. The case of Ahluwalia attempted to address this bias by stating that for domestic violence victims who kill following a ‘slow burn reaction’, the term ‘sudden’ does not equate to immediate. In reality, this slight addition did not allow for the defence to accommodate battered wife syndrome as the likelihood of establishing a successful defence of provocation where there is a marked delay between the act and killing is low.

Sexual Infidelity

Although s3 of the Homicide act 1957 did not state that adultery as behave capable of be deemed as sufficient for partial defence. The common law of provocation as previously, discussed took into account sexual infidelity as a ‘things done’ that may give rise to partial defence. This is clearly highlighted in the case of Davies, where by acts of the committed by defendant wife’s lover amounted to provocation of ‘sufficent’ kind. By virtue of s55(6) (c), the CJA 2009 expressly states that infidelity does not amount to ‘thing done or said’. Where other factors are present in addition to infidelity, the view point taken by government is that defence should stand based on these factors instead of sexual infidelity. All of which clearly indicates that the government does not wish to suggest provocation based on sexual infidelity is a ‘rightful but wrong’. (12) This rigid position of sexual infidelity in the CJA 2009 means that infidelity is never a factor that is considered, even where ‘taunt of infidelity is part of range of taunts and the taunting is systematic’. This exclusion of one type of taunt and consideration of other types of taunt clearly appears to be unfair. In these cases, the nature of taunt should be the factor that is considered not the substance of the taunt. (12) In the sense of morality, the changes to the law means that defendants can longer attributed provocation by dragging deceased’s character through mud.

Defendant’s incitement

In the old law of provocation, as illustrated in the case of Johnson, provocation is applicable, even where the defendant ‘unpleasant behaviour’ is the original source led to the attack, which consequently provoked him. Under s55(6), the CJA(2009), the court is directed to disregard the defendant’s fear of serious violence in situations where the defendant incitement had the sole purpose of providing an excuse to incite violence. This change in law reflects the position of self defence, where the defence is applicable where the defendant provoked or initiated the attack, but is not applicable where defendant actions had the purpose of provoking an attack, in order to inflict violence under the ‘guise of self defence’ .

1) Model Criminal Code officers Committee of the standing Committee of Attorney Generals. Discussion paper Model Criminal Code Chapter 5: Fatal Offence against the person (June 1998)

2) R v Camplin [1978] A.C. 705 per Lord Diplock at 713

3) Mawgridge [1707) per Lord Holtman at kel 130-137

4) 7. R v Mawgridge (1706) KelJ 119

5) Foster, C.L. 315; cf. Russell on Crime, 12th ed. (1964), pp. 450-452.

A. J. ASHWORTH THE DOCTRINE OF PROVOCATION Cambridge Law Journal, 35 (2), November 1976, pp. 292-320.

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7) . R v Smith (Morgan) [2001] 1 A.C. 146 per Lord Slynn at 152

8) Luc Thiet Thuan v The Queen [1997] A.C. 131 per Lord Goff at 138

9) Holmes V DPP

10) Journal of criminal Law 2012 Loss of self-control as a defence: key to replacing provocation. Amanda Clough.

11)Criminal Law , Directions, Nicola Monaghan 2nd edition 2012.

12) Alan Norris (2010) The Coroners and Justice Act 2009- partial defences to murder (1) Loss of control. Criminal law Review.