Defence of Provocation - Explain, by reference to relevant cases, how and why the courts have developed the defence of provocation in the 1957 Homicide act

In order for the defence of provocation to succeed the defendant must have lost self-control as a result of the provocation received at the time of the incident. There must be '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 mind' (Duffy 1949). Loss of self-control does not have to be complete. It is enough that the defendant is not able to restrain himself from acting (Richens 1993). The longer the time lapse between the provocation and the killing, the less likely that the defence will succeed (Ibrams 1981, Thornton 1992). The jury are expected to assume that the defendant has relative power over self-control, as would be expected of fellow citizens.

The defence of provocation will only succeed if a subjective and objective test are satisfied. These state that the defendant must have been provoked by things said or done to the point that she actually lost self-control. Moreover, the provocation would have been enough to make a reasonable person lose control and do what the defendant did in response to the provocation. In Camplin 1978, it was held that age, sex, and other relevant characteristics that are in some way connected with the nature of provocation should be taken into account when considering how the reasonable man would have responded. Thus, extending the objective test to a fairer and more just rule, which reflects the moral culpability of the defendant. As opposed to a test which can lead to a mentally sub-normal girl being compared to a reasonable prudent man (e.g. Elliot Vs C 1983)

However, many problems have surfaced due to the courts going too far on the extension of the objective test and including temporary characteristics to be considered, and this has led to juries being put in impossible positions e.g. trying to put themselves in the shoes of a 'reasonable glue sniffer' (Thornton 1996). In Morhall [1995], it was held that the defendant should be compared to a reasonable eccentric and possessive owner of land, and in Dryden [1995] it was held that the defendant should be compared to a reasonable attention seeking and immature women. Although for instance, in Morhall's case the attributes of being 'eccentric' and 'possessive' are relevant to the case and in Thornton's case the 'glue sniffing' was relevant to the case, the criticism of the courts decision is to do with the fact that these traits are to transitory in nature and should be relatively permanent.

The Privy council has recently reaffirmed the view in Camplin that the reasonable man must have a degree of self-control to be expected from a normal person, and that any mental abnormality which lowers the defendants powers of self-control should not be attributed to the reasonable person, as this would merge the objective and subjective tests.