Is the defence of provocation a good defence, and should it be extended? Discuss using case law.
Is the defence of provocation a ‘good defence’, and should it be extended? Discuss using case law. 2500-3000
Provocation is only a defence to a charge of murder. The effect of this defence is to reduce manslaughter what, in the absence of provocation, would have been murder. According to Delvin J provocation is defined as “some act, or series of acts, done ...to the accused which would cause in any reasonable person, and actually causes in the accused, 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” section 3 of the1957 Homicide Act expands on that,
“Where on a charge of murder there is evidence on which a jury can find that the person charged was provoked (whether by things done or by things said or both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to effect to which , in their opinion, it would have on a reasonable man”
Therefore it is the conduct of the victim that constitutes as provocation, because at common law words alone could not amount to provocation (Holmes v DPP). With two exceptions, actual violence by the deceased upon the accused was required. One was the exception were discovery by a husband of his wife in the act of committing adultery and discovery by a father of someone committing sodomy on his son. But with the act there are no restrictions. The provocation need not be illegal or wrongful and may even be something as natural as a baby crying (Doughty (1986)
There has been much controversy about provocation being a defence as it appears to enable defendants to receive lenient treatments because they allowed themselves to be provoked. Additionally defendants can vindicate from punishment a function of the state therefore defendants are not subjected to democratic control. Some state that provocation can encourage prejudices, Wells in Ashworth and Mitchell argued this when he states “[The provocation defence], is bound to encourage and exaggerate a view of human behaviour which is sexist, homophobic, and racist”. While others such as McAuley, asserts that partially provocation is a partial justification: “the true basis of the defence is the contribution of the victim, in the fact that his wrongful conduct was the cause of the defendant’s violent outburst”.
Many have argued that provocation should not be a defence and therefore should be abolished and while others believe that provocation should exist but requires reformation. In my essay I will critically analyse whether provocation can be considered as a good and bad defence and conclude whether it should be extended or abolished. (
The 1957 Homicide Act identifies two test requirements that need to satisfy the defence of provocation, the objective and subjective test. First, the subjective test question whether there was a reasonable possibility that the accused was provoked and suffered a sudden and temporary loss of self control. This indicates that provocation is a good defence as it distinguishes between killings,those promoted by revenge and unplanned outburst. This is highlighted in R v Duffy , when Delvin J states, “Circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has the time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is of the sense of the essence of provocation.”
This is a preview of the whole essay
In Ibrahim v Gregory the courts held that the interval of time and the formulation of a plan negatived claims of loss of self control. This decision complies with the test provided by Delvin that the longer the period to cool down the more likely the killings is not a revenge killing. In this case Appellant had been terrorised by v other a period up to 7th October they contacted the police but nothing was done. They then agreed on a plan and killed v on the 14th October. But the Delvin’s test is an assumption not borne out by psychological/ physiological evidences, and some could get gradually more angry over time, this notion is agreed by P.Brett (The physiology of provocation).
However this does not mean that there cannot be cumulative provocation. This was the case in Ahluwalia where D killed her husband after a long history of domestic abuse violence by him; it was argued that in domestic violence there was a ‘slow burn’ case, where the defendant only loses self control after a prolonged period of provocation from the deceased. The Duffy test was inappropriate as a deal or “cooling off period” between the last act of provocation and the killing might, in fact caused the defendant to react more strongly. “Slow burn reaction” was introduced by the courts (who accepted battered women syndrome this found in the Hobson, R v (1997) CA) for battered women who killed in the heat of passion, the Court of Appeal said in regards to slow burn, “we accept that the subjective element in the defence of provocation would not as a matter of law be negative simply because of the delayed reaction in such cases, provided that there was at the time of the killing a sudden temporary loss of self control caused by the alleged provocation. however, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative prosecution” Prior to this there has been a gap between the provocation and the killing as the law assume that the defendant killed in anger. This case illustrated the issues dealing with sudden and temporary loss of self control as the courts understood that women react differently to men in situations where provocation arises. Moreover it shows that provocation especially in the case of battered women is a good defence.
However in the case of battered women defendants find it difficult to show that the killing was a reasonable response to provocation. There is also a difficulty in proving that there was a loss of self control, for instance if you take the details of the Ahluwalia. The accused waited till her husband went to sleep to pour petrol on him and light him, illustrating that she had carefully planned out her action and had not lost her control. This begs the question: why is a person who intentionally kills a provoker guilty only of manslaughter rather than murder? This shows provocation to be a bad defence as it may entitle a person to feel anger. So if a person was to act out in that emotion then it will be justifiable; this I don’t think will benefit the society as it provides an excuse for inappropriate behaviour.
The objective test on the other hand has to satisfy if a reasonable person would have done as the defendant did in a provocative situation; it is for the jury to consider the objective question of whether a reasonable man would have been provoked to lose his self-control. If the jury feel that there is a reasonable possibility that he would, they must return a verdict of manslaughter. It is vital therefore, to determine who a reasonable person is.
The courts have been troubled by the degree to which it is necessary or desirable to take into account the characteristics of the particular defendant when assessing the likely response of the reasonable man. At common law the reasonable man was an adult with normal mental and physical attributes this was held in Bedder. If the defendant was a child he would be expected to exercise the same control as an adult would exercise. Furthermore, if the defendant had characteristic that singled him out it was not attributes of a reasonable man. However in DPP Camplin the decision made in Bedder were reversed as age might affect the gravity of provocation. It was also upheld that age and sex only are relevant to the level of self control to be expected of the ordinary person.
The jury assessments of how a reasonable person sharing such of D’s characteristics that are relevant, might react to provocation illustrates how provocation can be seen as a bad defence. This is because there is no concrete evidence as to what a reasonable person is. The importance of sex and gender, to self control is not apparent although it is consistently referred to in conjunction with age. In Australia high courts it was held that age was the only characteristics relevant to the powers of self control to be expected from a reasonable man. Other characteristic which are attributed to the reasonable persons are those which affect gravity of provocation Noticeable characteristics such as race , sexual orientation and disability Morshall lord Goff made it clear that characteristic included the defendants history or circumstances. In this case the accused had been taunted by his glue sniffing addiction and stabbed his friend seven times in the course of the fight. The judge ruled that sniffing glue was a discredited characteristic inconsistent with the concept of the reasonable man. But the characteristic was not excluded from consideration by the jury. D's glue sniffing was therefore taken into account as a characteristic of a reasonable man. While Morhall clarifying some issues others are left uncertain. In particular, to what extent are the personal circumstances of the defendant attribute to the ordinary persons? (The House of Lords made clear that the reasonable man is simply the ordinary man). In Newell the court of appeal held that it was right for the judge to not invite the jury to take into account the defendant’s intoxication. This was heavy relied on the New Zealand case of Mcgregor (subsequently criticised by McCathy)where emphasis was placed on characteristics needing to be sufficiently significant and permanent before they be attributed to the reasonable man. In light of Lord Goff acceptance that history or circumstances of the defendant in which he placed may be relevant, thus the authority of Nevile is in this respect doubtful.
A problem which has arisen is whether mental abnormalities or peculiarities suffered by a defendant are relevant the objective question where there are no verbal taunts relating to those mental conditions, such conditions may explain why the defendant responded as he / she did to the provocstion, but there is a danger that courts are confusing impaired self control aka provocability with provocativeness. In Ahuwalia there was a suggestion that ‘battered women syndrome’ might have been a relevant characteristics where d killed her abusive husband ,. In Dryden  the Court of appeal held that D’s eccentricity and obsessiveness about land was relevant information when charged with murdering a planning officer. In Humphreys it was held that characteristics of abnormal immaturity and attention seeking were relevant because it was a permanent condition that D suffered. But in Luc Thiet Thuan v R the courts rejected the objective test. This is because the line between diminished responsibility and provocation is blurred. It also raises difficulties for jury to standardise what was expected of a reasonable person. It has become clear through these cases that some characteristics affect the ability of the defendant to control themselves, while as other are more sensitive to provocation.
Through the analysis of the objective and subjective test I am able to conclude whether the partial defence of provocation should be extended or abolished. Powerful arguments have been drawn up for and against the abolition of provocation as a defence. It could be argued that a person, who is sane and kills another unlawfully with the intent, ought to be guilty of murder. This is supported by Jeremy Harder, as he believes that there is no good reason for killing after a loss of self control so it should not be provided a defence. Another reason for abolishing provocation as a defence is that it encourages racial and sexual stereotypes. In the case of Wells  the defendant argued that in considering how a reasonable person would react we should note that he was Italian and is therefore hot-blooded and more likely to lose self control. This demonstrates the ways in which provocation can lead to stereotyping. Provocation also encourages gender discrimination; Holder states that averagely 52% of women rely on provocation when they kill their partner. While 30% of men kill their partner are able to do so. At first sight the figures suggest that defence operates in way that is pro women but vast majority of women have been subjected to violence and sustained physically abuse while the men who have been subjected to violence by their partners are small. In the light the figures for women are quite high and the results for men look quite high. This is supported by Harriet Harmen, who says that the law on provocation was created essentially with men in mind. The Law Commission’s Final Report (2004): - Partial Defences to Murder, suggests that there are several problems on the existing law of provocation. It further suggests that the reason for these issues is due to the theoretical underpinning behind the defence of provocation (like subjective and objective tests). This idea of loss of self controlling the subjective test has created a number of issues including the fact that it may be sexist especially in the slow burn type case of Ahuwalia.
However those who argue for the retention of some form of provocation defence say there are moral and practical reasons of doing so. It is morally right that those who precipitated by really serious provocations are reflected in the way society labels and sentences defendants; and it is desirable that the factual and evaluative question whether the accused was provoked in that sense should be taken by jury. A short prison sentence for a provoke killing will be acceptable to and understandable by the public. If it results to a conviction the defendants would not have stigma and gravity attached to murder. The existence of partial defence is justifiable under the law of murder. The issue with provocation is not the underlying ideas but the way it has developed, reformation is needed. The concept of loss of self control in the subjective test has created a great amount of problems including the fact that it may be sexist, especially in the slow-burn type case of Ahluwalia.
In conclusion, the defence of provocation is bad defence, as there is dissatisfaction with the theoretical underpinnings of the defence of provocation. It is not underpinned by any clear rational. This is because the concept of provocation has become far too loose so the judge feels obliged to leave the issue with the jury, when the conduct or words are trivial. The concept of loss of self control has proven to be very difficult. The requirement of “sudden and temporary loss of self control has given rise to certain problems such as the “slow burn reaction” in cases. There is much debate about the objective test which has interpreted by the majority House of Lords in smith (Morgan) in a way that it may enable a defendant to rely on personal idiosyncrasies which make him or her more short tempered than other people. Therefore the he defence of provocation should be demolished.
Criminal law routledge Cavendish sixth edition
Criminal law text cases and materials second edition by Jonathan Herring
Duffy, R v  CA
Duffy, R v  CA
Doughty, R v (1986) CA
Ibrahim v Gregory
Ahluwalia, R v (1993) CA.
Hobson, R v (1997) CA
Hobson, R v (1997) CA
Bedder, R v (1954) HL.