Initially the judge will decide whether there is enough evidence of provocation to be put forward by the jury, s3 Homicide Act 1957 states that the provocation can come from things said, or things done, and also that there words or actions do not need to come from the deceased, and they do not need to be directed at the defendant. The Court’s have accepted evidence of provocation in a variety of cases, in Davies 1975, the action of the wife’s lover walking towards her place of work to meet her, was enough for the jury to consider provocation for a man who lost control and killed his wife. The case of Pearson 1992 demonstrated that the provocation need not be directed at the defendant, the defendant lost control and killed his father with a sledgehammer, after being provoked by the father’s ill treatment of his brother. In the case of Doughty 1986, the Court of Appeal were open to consider the continuous crying of a very young baby as provocation, even though it was obviously not directed at the defendant.
The Courts have also been willing to consider cases concerning self-induced provocation. An example of this was the case of Johnson 1989; the accused had started an argument in a nightclub, which developed into a fight. In fear of being ‘glassed' by the victim, Johnson stabbed him and the victim died. The Court of Appeal allowed the appeal, even though it was the defendant himself who started the argument and the fight. A similar appeal was successful in the case of Baille 1995; the defendant went to the residence of a drug dealer, after the dealer threatened the defendant’s sons. The drug dealer was killed by the shots, and the defendant claimed he suffered a temporary loss of self-control after his son told him about the threats, which lasted until the time of the shooting. And also that he had lost his self control when the victim tried to wrestle the gun from him. Although the jury were not prepared to accept the sudden and temporary loss of self-control, they did allow Baille’s claim of self-induced provocation. However many people are critical of the idea of ‘self induced provocation’ believing that the defence should not be applicable to a defendant who has created the situation through his own violent and aggressive behaviour.
From the wide examples of cases involving provocation, some critics have accused the courts of taking a ‘play it safe’ approach to provocation, and argued that if there is any evidence of provocation, the judge will often ‘play it safe’ and put the decision to the jury. The ambiguous guidelines to what can be considered to be provocation, could lead to cases taking advantage of the courts liberal stance on the issue of provocation, and may also complicate matters when solicitors advise clients.
There must also be evidence that the defendant lost his self-control, it is not enough for him to merely demonstrate that he was provoked, he must show the provocation affected him so strongly that he lost his self-control. The courts will use a subjective test to decide this. The definition given in the case of Duffy 1949, is still regarded as being an authoritative statement concerning the loss of control resulting from provocation. The definition given in Duffy says that a defendant must display; ‘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 the master of his mind’. The case of Richens 1993, stated that it was not necessary for a defendant to prove a complete loss of control to the extent that the defendant was not aware of what he was doing, simply that the defendant had been provoked to lose his self control and killed.
However the use of the words ‘sudden and temporary’ has caused problems, particularly cases involving a ‘cooling-off period’. This was the position taken by the court in the case of Duffy 1949, the defendant had been abused by her husband and left the room, changed her clothes and returned with a hammer and a hatchet once her husband was in bed, and then proceeded to kill him. It was following this then Lord Devlin gave the now famous and authoritative direction, and decided that Duffy’s situation did not fall into it, and her conviction for the murder of her husband was upheld.
This was similar to the case of Thornton 1992, when the court decided that the loss of control was not ‘sudden and temporary’ as the defendant, also a battered wife, had taken the time to sharpen a knife before attacking her abusive husband. There is also a conflict in the eyes of the court between provocation and revenge, it was thought that revenge, rather than provocation, was the reason for the crime in the case of Ibrams and Gregory 1981, where the defendant’s plea of provocation was rejected, even though they had been terrorised by the victim, as they had taken the take to formulate a complex plan. This decision followed the judgement given in Duffy, which also stated that; ‘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 had time to think, to reflect, and that would negative a sudden temporary loss of self control, which is the essence or provocation’. It could be argued that the choice of the Courts to accept battered woman’s syndrome has blurred the distinction between diminished responsibility and provocation, this could lead to long and ludicrous court cases which could confuse juries and cause inappropriate decisions.
The Courts must also see evidence that a reasonable man would react in the same way, the Courts are asked to examine the behaviour of the provoked individual and decide on whether a man of reasonable behaviour would have acted in a similar way. In Brown 1972, a plea for provocation was refused, for a man who cut his wife with a razor, after she merely scratched him with a poker, the conviction for murder was upheld as the jury believed the reasonable man would not have reacted in such an extreme and unproportional way. The case of Bedder v DPP 1954 governed a strictly objective test for the jury’s decision on this element of provocation, the accused had been able to get an erection when attempting to have sexual intercourse with a prostitute, she then taunted him, causing him to lose his temper and kill her. The House of Lords dismissed his appeal, saying that a reasonable man would not have reacted in this way, no allowance was made for the accused’s impotency. However the leading case of DPP v Camplin 1978 modified the purely objective test, and their Lordships decided that a more appropriate test would be ‘Would a reasonable man with the same characteristics have acted in this way?’.
The case in question concerned a fifteen year old boy who had been drinking with a middle aged man, and was leading forcibly subject to a homosexual assault and the man’s residence, and was mocked and taunted when he expressed shame at what had happened. The boy lost his temper, attacking the man and killing him, and Camplin was convicted of murder after a direction from the jury about the qualities of a reasonable man. However he appealed, and the House of Lords decided certain characteristics of the boy should have been taken into account, including his youth. However the court’s use of the word ‘characteristics’ have caused further ambiguity and confusion over exactly which ‘characteristics’ should be considered in cases. In the case of Newell 1980, the Court of Appeal decided that the jury should only consider permanent characteristics of the accused, which actually related to the provocation, and the effects of drink and drug taking should not be considered, but alcoholism, which is a permanent factor, could be considered if cases where it actually related to the provocation. The Court have accepted certain mental characteristics as appropriate, in the case of Humphreys 1995, a young girl subjected to an unfortunate upbringing, was said to have abnormal immaturity and attention seeking impulses, and at the age of sixteen moved in with a violent and unfaithful older man. The older man had made remarks about a ‘gang bang’, and later that night when he started to undress the defendant, and taunt her about her failed suicide attempts, she lost her self control and stabbed him. She claimed that the remarks about her suicide attempt, accumulated with her past history, and the events of that evening had caused her ‘to snap’, but the jury still returned a verdict of murder. However a campaign for herself aided a substitution verdict of manslaughter, because of misdirections by the judge in the original trial, he had asked the jury to considered how a reasonable man would have acted in Humphrey’s situation, not a woman with a distorted and explosive personality, and had failed to give details of the events leading up to the stabbing.
Also, in the case of Morhall 1995, the defendant was taunted about his addiction to glue sniffing, and was in a fight with the victim resulting in Morhall stabbed the victim several times. The Court of Appeal refused to accept glue sniffing as a characteristic likening it to drunkenness and drug taking; characteristics which the reasonable man would not possess. But the House of Lords disagreed, and were happy to reverse the decision and allow a verdict of manslaughter.
However although the courts have appeared to widen the definition of provocation, Lord Goff has added a note of caution, and he favoured a more restrictive approach in the case of Luc Thiet Thuan 1996, on appeal the House of Lords decided by a majority of four to one that mental instability which had reduced the powers of self control could not be attributed to the reasonable man. Lord Goff did not feel that this approach should be appropriate in cases of provocation, and criticised cases in which ‘purely mental peculiarities’ had been considered in appeals of provocation such as Newell 1980. He explained that these decisions were influenced by decisions made in the commonwealth, particularly those made by the judicial system in New Zealand, a county in which have a separate defence of diminished responsibility, unlike English law. He also stated that the decisions made in the cases of Ahluwalia, Dryden and Humphreys should have been different.
Further issues of provocation n arose in the case of Smith 1998. Both the defendant and the victim were alcoholics, and during a heated argument Smith became increasingly annoyed at the victim and stabbed him to death with a kitchen knife. At the trial, he put forward the defences of both diminished responsibility and provocation, but the trial judge directed the jury that, with regard to s3, the mental impairments of the defendant were not relevant to the reasonable man’s loss of self-control, and Smith was convicted of murder. The Court of Appeal disagreed with the Crown Court’s verdict, and substituted a verdict of manslaughter, and the House of Lords affirmed this decision, deciding that mental characteristics and instabilities should be considered relevant not only to the gravity of the provocation but also to the standard of self-control to be expected.
There have been class to reform of even abolish provocation as a defence, some groups are outraged that the defence creates the impression that society accepts extreme violence as a response to actions or insults which do not include physical threats. However others defend provocation, arguing that ‘murder’ is an inappropriate term for killing under provocation , and without the defence available, juries may acknowledge this leading to the increase of acquittals in cases where the defendant was seen as morally less worth of blame.
