The defence of provocation is detailed in section 3 of the Homicide Act 1957 and consists of two elements.
A. Did the defendant loose self control? (Subjective question)
B. Would a reasonable man have lost their self control? (Objective question)
(A.)SUBJECTIVE QUESTION (Did the defendant loose self control?)
R v Dryden (1995)
A man built a dream bungalow on his land without planning permission, the council insisted that he demolish it he refused to do so and the council sent demolition contractors in an effort to stop the demolition the man shot the planning officer. The court took the view that the authorities conduct could amount to provocation
R v Sara Thornton (1992)
Sarah Thornton was convicted of murder in 1992. Her husband Malcolm had physically and mentally abused her for many years and one night she sharpened a knife from the kitchen and then stabbed him to death after he had once more threatened her. She was found guilty of murder because of the absence of “sudden loss of control”. The premeditated sharpening of the knife was seen as a significant event.
R v Ibrams + Gregory (1981)
A couple had been intimidated by the woman’s ex-boyfriend John Monk. They hatched a plan, along with a friend, that involved him being persuaded to go to bed with the woman and then to be attacked by Ibrams and Gregory. Monk died during the attack. The court felt that the planning and the time difference between the killing and the last threatening actions by monk invalidated their defence of provocation.
CUMULATIVE PROVOCATION
Provocation in some case could actually build up over a period of time if it is continuous. E.g
R v Humphrey
A 17yr old prostitute stabbed and killed the 32yr old man she was living with. He had been violent towards her on several occasions abused her and taunted her. She was convicted of murder and on appeal 10yrs later the court took the view that she suffered from cumulative provocation.
(B)THE OBJECTIVE QUESTION (would a reasonable man have lost self control?)
Having decided that the defendant has lost his self control, it must then be considered whether a reasonable person in those circumstances would have lost their self control. Would the reasonable man have had “sudden and temporary loss of control” if faced with the same provocation.
R v Camplin (1978)
The defendant a 15yr old boy had been buggerd by an older man. Who then laughed at him, the boy reacted by hitting the man on the head with a pan and killed him. The court took the view that the reasonable test should take into account factors such as age and sex.
The law changed after this case and the reasonable man would be considered the same sex and age but also has in common with the defendant some of the element which might give the provocation its full capacity to provoke a criminal act.
THE NEWREASONABLE MAN TEST
- The gravity of the provocation
- the power of self control
The gravity of provocation
The court takes into consideration any characteristics of the defendant that would affect the gravity of the provocation
R v Morhal (1995)
A habitual glue sniffer killed another man who persistently nagged about his habit. The court considered this to be a relevant characteristic of the defendant that ought to be taken into account
The power of self control
When the court decides the level of self control it will take into account the age and sex of the defendants.
R v Smith (2000)
After an argument with a friend about whether the fr4iend had stolen some tools belonging to the defendant, the defendant picked up a kitchen knife and stabbed him. There was evidence that the defendant was suffering from depression. The court took the view that other than age and sex other such characteristics should be taken into account.
