This partial defence also seems outdated, it implies that individuals are incapable of controlling themselves and does not seem to reflect life in the 21st Century, but that of our Victorian past of gentlemen and settling quarrels by force.
The Law Commission (LC) stated that this partial defence is making the deceased the ‘defendant’. It blames the V for the D’s inability to exercise self-control. Therefore a deceased person has no chance of defending themselves.
In R v Duffy a new element was added, the loss of temper has to be ‘sudden and temporary’ as result many see the defence as one ‘created by men for men’ as this element seems to favour the way men respond to provocation and discriminate against women, in particular ‘battered women’ e.g. R v Pearson could use it but on similar facts battered women such as Ahluwalia (R v Ahluwalia) have not. Many people have pointed out these women do not react immediately there tends to be a gap between the provocative conduct. This has traditionally been seen as a cooling off period, thereby preventing them using the defence. Helena Kennedy describes this as ‘a snapping in slow motion, the final surrender of frayed elastic’ or as Lord Gifford described it ‘the slow burning emotion of a woman at the end of her tether…may be a loss of self-control in just the same way as a sudden rage’.
The LC commented that this defence is seen to favour those men who react in violent anger, over fearful women.
A suggested reform would be to remove the need for a sudden and temporary loss of control and simply return to a loss of control taking all relevant factors into consideration.
An additional would be to create a new defence of ‘Self Preservation’ which would take into account the way women react. However this runs the risk of creating sex based defences and of creating a public impression of the law being soft on female killers.
The test for provocation is an objective Subjective one. It is: Would a reasonable person react to the provocation in a similar way? There are a number of problems with this test. Firstly following R v Smith it places a great burden on the jury as they have to decide which of the D’s characteristics to include when deciding who a reasonable person is, when there only role is to answer questions of fact e.g. the guilty or not guilty verdicts. This can lead to inconsistencies with different juries including different characteristics.
Secondly it appears to be contradictory, can you have a reasonable stalker, a reasonable drug addict etc. and as the LC states: ‘A defendant who pleads provocation does not claim to have acted reasonably.’
Thirdly it asks the jury to put themselves into a position they may have not had any experience of e.g. an all male jury into that of a women battered by a man or as in R v Raven that of a 22 year old man, with a mental age of 9, who had lived in "squats" for several years and who had been sexually assaulted on a number of occasions by the V and the jury were instructed to consider the effects of similar provocation on a reasonable person with similar disadvantages.
Two possible reforms would be, firstly to make the characteristics to include a question of law; this would have the advantage of consistency but would take an important question away from the jury thus diminishing their role.
Secondly the test could be made purely objective, this would be straightforward for the jury, how would they react to that provocation. The major drawback would be that it would defeat the whole purpose of the defence as by definition reasonable people do not go around killing their fellows.
A straightforward reform would be to abolish the mandatory life sentence, there would then be no need for the partial defence and the provocation would become a mitigating facto in sentencing.
Furthermore, the LC stated that the law of provocation is ‘profoundly unsatisfactory’.
