Section 3 states, there must have been some act(s) or word(s) of provocation, in order for the defence to be applicable. After the statute has served its means, it is then for the jury to infer the validity of provocation, contrary to this is the decision in the case of Edwards where Lord Pearson’s interpretations challenged Parliaments intentions of section 3, stating irrelevant pre-conditions in cases of self-induced provocation. In Johnson the Court of Appeal disapproved Edwards, clearly restating the meaning in section 3, that regardless if the defendant brought about the circumstances, it was for the jury to answer the question, whether things done or said or both provoked the defendant to lose his self-control.
Once the subjective requirement is satisfied, that the defendant was provoked to lose self control, the court must go on to consider the objective requisite: The circumstances must be such that a reasonable man would have reacted as the defendant did. Perplexity arises over the expectation of a ‘reasonable man’, who is he? There is an implicit paradox - reasonable persons do not kill. Are we to measure D's behaviour against the vast majority of non-killing people, the defence would be bound to fail. So if we believe that the defence should have meaning, what should be taken into account in deciding to allow it to succeed?
That remains a decision of the jury, and not for the judge, unlike at common law to withdraw the issue from the jury if, in his opinion, there is no evidence upon which a jury could reasonably consider that the reasonable man might have done as the defendant did, as in the case of Pearson (1992) . As a corollary of this, the section prevents the judge from instructing the jury how the reasonable man would have reacted in the circumstances. I my view a reasonable man could be a Sikh man, D, who in the execution of his faith wears a turban and while in the pub is enjoying a drink with his friend, S, who jokingly makes a remark and knocks his turban off his head is violently attacked by D resulting in the death of S. The mere touching of someone’s turban is a highly derogatory action in east-Indian cultures (not only religion), so the knocking of a turban would only make sense to someone who has an understanding of the culture, although the law remains idiosyncratic to cultural needs it is worth mentioning, that in order to be meaningful, Andrew Ashworth describes, “the “gravity” of the provocation must be expressed in relation to persons in a particular situation or group…and personal characteristics should be considered by the courts. It would be preferable, if juries were expressly and sensibly directed as to what they should and should not consider, rather than leaving the matter to their intuition and sympathies, these were the views of the Royal Commission on Capital Punishment. Individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused’s level of self-control should not
The question which came before the House of Lords in DPP v Camplin (1978) was whether the rule in Bedder v DPP (1954) which adumbrated the idea that the ‘reasonable person’ was not to be endowed with the defendants characteristics in which the House of Lords approved that the jury should ignore the fact that the youth was impotent when considering whether the deceased’s conducted amounted to such provocation as would cause a reasonable or ordinary person to do as the defendant did. In effect the jury were instructed to allow the defence only, if in their opinion, the ordinary, potent man would have responded in the same way as the accused. Bedder was bad law, for it is surely impossible to access the gravity of provocation without reference to the characteristics of the accused at which the taunts were directed. The objective reasonable man was about to be emancipated from the defence of provocation. In Camplin, the appellant a boy aged 15, lost his self-control and killed a man who had buggered him and then laughed at him. When the case reached the House of Lords it was held by Lord Diplock, that the accused’s age was to be taken into account in determining the degree of self-control to be expected of an ordinary person. He went on to say, in assessing the gravity of provocation, the defendant’s history or personal circumstances might also be relevant. The same principles dictated the case of Morhall. Taunts of the defendant’s persistent glue sniffing addiction, ended up in violent fight, killing the deceased. The House of Lords felt that the glue-sniffing characteristic should be attributed to the reasonable man when considering the gravity of provocation, i.e. how a reasonable glue sniffer would react in such circumstances. However mental affirmity was an issue under contemplation. The Privy Council case Luc Thiet
Thuan (1996) rejected mental abnormalities in the attribution to the reasonable man. However on the other hand the Court of Appeal considered mental impairments, in case such as Ahluwalia (1992), Humphreys (1995), Thornton (1996) and parker (1997)
The issue arose for the consideration of the House of Lords in the case of Smith (2000) During the course of an argument the defendant Morgan James Smith stabbed his friend, McCullagh several times with a kitchen knife killing him, in his trial Smith put forward a number of defences including diminished responsibility and provocation. He claimed he lost his self-control as a result of McCullagh denial of the theft of his tools.
The defence put forward psychiatric evidence that Smith was suffering from a severe form of depression, which made him more volatile. In his summing up the trial judge advised excluded the depressive illness and its disinhibitive effects of the Smith’s violent behaviour when consideration of provocation was concerned i.e. when deciding weather a reasonable person with ordinary powers, would have done as the defendant did. The Jury convicted him of murder. On appeal, the court of Appeal substituted the conviction to manslaughter. The court recognised however thorough review of authorities was necessary, gave leave to appeal and certified the following point of law of general public importance for the House of Lords consideration
“Are characteristics other than age and sex attributable to the reasonable man, for the purpose of s.3 of the Homicide Act 1957, relevant not only to the gravity of the provocation to him but also to the standard of control expected?”
The House of Lords, Lord Hobhouse and Millet dissenting, answered the question affirmatively and dismissed the appeal. The judge should not have directed the jury as a matter of law that the effect of Smith’s depression on his powers of self-control was ‘neither here nor there’. It was for the jury to make a measurement of the accused’s behaviour against the standard of self-control, which ought reasonably expected of him. In Camplin, Lord Diplock stated that the question whether the reasonable man would have done as the defendant did is to be decided by the jury ‘drawing on there experiences of how ordinary human beings are to behave in real life’ and that since the question is one of opinion of the jury, the evidence of witnesses as to how they think a reasonable man would react to provocation is not admissible. It would seem therefore that expert psychiatric evidence as to the effects of mental abnormalities is, strictly speaking, inadmissible. This was the view taken by Lord Clyde in Smith. Medical evidence concerning the effect the characteristics might have on self-control was not admissible. In my opinion this would beg the question are the jury supposed to have medical degrees in order to make assessments of the defendant’s mental impairment! Lord Hoffman took the view that section 3 of the Homicide Act 1957 made the jury sovereign in respect to the objective element. It was for them to determine not only whether the behaviour of the accused complied with the standard of self-control, but what the reasonable standard in the particular case should be. Lord Hoffman also stated, that it would be inconsistent with the section for the judge to tell the jury that they should ignore characteristics of the accused when deciding the qualification of the objective element of the defence.
The House held that no distinction should be drawn, when attributing characteristics for the purpose of the objective part of the test imposed by section 3 of the Homicide Act, between their relevance to the gravity of the provocation to a reasonable man and his reaction to it. Consideration may be taken of a relevant characteristic in relation to the accused’s power of self-control, whether or not the characteristic is the object of provocation. Lord Hoffman denied that there was justice in applying a standard of self-control that the defendant was incapable of attaining, In Camplin, although provocation was not directed at the boys age, his youthfulness was to be considered by the jury because the principle of human infirmity required one to do so, and the majority concluded there was nothing in the judgement to say that the same principle of compassion was not applicable to other characteristics which the jury might think need be taken into account.
The decision in Morgan Smith has enlarged the scope of the defence of provocation, it is prima facia obvious the leave it has taken regarding the traditional views on the defence of provocation, i.e., from Camplin, Morhall and section 3. The majority in the House of Lords reasoned that Lord Diplock, in Camplin had not confined those characteristics relevant to self-control to age and sex. However, Lord Hoffman recognised that if there was no limit to the characteristics which could be taken into account, there was a danger that the objective element would be worn out I believe that this is rather contradictory of Lord Hoffman as he stated earlier in his judgement that the jury remain ‘sovereign’, well why cant their assessments be to whatever limit they feel necessary? (see footnote 25). However the rationale of the reasonable man test is to set an objective standard by reference to ‘the degree of self-control to be expected of the ordinary person with whom the accused’s conduct is to be compared’. Whilst agreeing that those who are incapable of exercising ordinary self-control, is desirable, the minority pointed out that the defence was not an appropriate one. Where a mere trivial insult was enough to suffice provocation due to mental abnormality which in result renders a deficient exercise of self-control, his loss of self-control should be vested in his psychological make-up rather than the provocation he received, hence making the defence of provocation inappropriate.
Section 2 of the 1957 Act specifically deals with the defence of diminished responsibility, excusing those individuals whose mental liability is impaired, due to abnormality in mind. In Smith such abnormal characteristics were attributed in assessment of the reasonable man, indirectly incorporating the section 2 defence with that of section 3. The issue with this overlap is that burden of proof now lies with the prosecution, whereas the burden of proving diminished responsibility fell on the defendant. The majority decision in Smith allowed this overlap, and escape the burden of proof required by section 2 by raising the provocation defence on its own or in conjunction with diminished responsibility, and introducing medical evidence of an abnormal condition impairing the defendant’s power of self-control.
In conclusion it can be said that the approach of the majority in Smith means that the accused is to be judged by his own impaired powers of self-control and questions the need for objective element of the defence. The variable standard of self-control has left the defence in a destabilized state. The key issues in Smith focused on the entirety of a jury question as to whether D had measured up to the standard of self-control which is reasonably expected of him. Overall doubts remained as no model direction was given for juries to follow, the use of the image of the reasonable person is not recommended anymore. The jury question is as: per Lord Slynn: whether D “has exercised the degree of self-control to be expected of someone in his situation”; per Lord Hoffman: whether D has exercised “the degree of self-control which society could reasonably have expected of him” or per Lord Clyde: whether D has exercised “the ordinary power of self-control over his passions which someone in his position is able to exercise and is expected by society to exercise”. Smith seems to have come up with a solution for ‘battered women’s syndrome ’ and a better solution for cases such as Alhuwalia and Thornton by the overlapping of section 2 by 3. Smith gives a stronger argument for mercy killers, who can plead the defences, as their characteristics will be considered and their mental impairments during the killing hence giving more better and fair judgments in case such as Cocker, nevertheless problems are faced as the objective test in section 3 now becomes more subjective and is in a process of evaporation.
[1975] QB 691 – where the provocation came from a man who was having an affair with the wife
of the accused. The courts accepted that it was acceptable for provocation to come from a
person other than the deceased, the wife.
PRINCIPLES OF CRIMINAL LAW by Andrew Ashworth 3rd Edition .pg 276
[1949] 1 All ER 932 -Devlin J said that this loss of self control involved:
"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 or her own mind".
INTRODUCTION TO SOCIAL PSYCHOLOGY by M.Hewstone and W.Stroebe 3rd edition
Logan v R [1996] Lord Steyn’s dictum on the doctrine of ‘cooling time’ is a common sense
criterion to put to the jury.
Alhuwalia [1992] 4 All ER 899 The court of Appeal said that only Parliament could change the
law on provocation, stated with regard ‘slow-burn’ reaction: the problem being “…the longer
the delay and the stronger the evidence of deliberation…the more likely it will be that the
prosecution will negative provocation
[1992] Crim LR 193. - The Court of Appeal held: that in deciding whether Williams had lost his self control,
the jury were entitled to take into account those words and conduct of the father directed against Malcolm
which had come to notice of William. Provocation was not limited to his own personal experience of his
fathers conduct.
A.J.Ashworth “THE DOCTRINE OF PROVOCATION” [1976] Camb LJ 300
A.J.Ashworth “THE DOCTRINE OF PROVOCATION” [1976] Camb LJ 300 the Royal Commission on
Capital Punishment (Cmd. 8932, para. 145)
A.J.Ashworth “THE DOCTRINE OF PROVOCATION” [1976] Camb LJ 300
A.J.Ashworth “THE DOCTRINE OF PROVOCATION” [1976] Camb LJ 301 Lord Simons seemed to
accept that the jury should place the reasonable man “in circumstances in which the accused was placed”
38 Cr.App.R at p.139
Lord Diplock stated: "When assessing the effect provocation would have on a reasonable man, the jury
are to consider that the reasonable man has the power of self-control to be expected of an ordinary
person of the same sex and age as the accused and sharing such other characteristics as jury think
would affect the gravity of the provocation to him. And the question is not only would such a person lose
control, but would he do as D did?"
Their Lordships recognised that there is on policy grounds an exception to drunkenness, drunkenness is
not to be attributed to the reasonable man.
Thornton (No.2) [1996] 1 WLR 1174
Lord Hoffman Smith [2000] 3 WLR 654: “For the protection of the public, the law should continue to
insist that people must exercise self- control. A person who flies into a murderous rage when he is
crossed, thwarted or disappointed in the vicssitudes of life should not be able to rely on the anti-social
propensity as even a partial excuse for killing.”
Lord Hoffman also referred to the Australian case Stingel (1990), in which he mentioned male
possessiveness and jealousy should not be recognised as an acceptable reason for loss of self control
Lord Diplock in Camplin [1978] AC 705