The Law Commission Report is split up into five main parts. Part 1 sets out the introduction and the summary, Part 2 sets the current terms of reference and possible future work, Part 3 looks at the Provocation defence, Part 4 looks at excessive force in self-defence and finally, part 5 deals with the plea of diminished responsibility. Undoubtedly, it is the Provocation defence that the Report is centred around, and it is on this part that this essay will focus on, given the limited scope available in this exercise.
Part 3 of the Report is dedicated to the defence of Provocation. It sets out early on, the current unsatisfactory state of the law, and also goes about setting out particular issues that are particularly troubling. It then proceeds to address whether or not it should be abolished, or retained in some modified form and then finally, it moves on to discuss their proposals with regards to the reform of the defence, starting at paras 3.60, and it is this part that we are most interested in. The Commission, as seen in para 3.65, feels that as it is, the defence is defective in the sense that it is in some respects too broad and in others, too narrow. “It is too narrow in that it provides no defence to a person who is subjected to serious actual or threatened violence, who acts in genuine fear for his or her safety (but not under sudden and immediate loss of self-control) and who is not entitled to the full defence of self-defence (either because the danger is insufficiently imminent or their response is judged to have been excessive).” In order to correct this fault, the Commission then proceeds in para 3.66 and 3.67 to outline how they think the requirements that the defence of provocation needs to adhere to, “3.66 In principle, we consider that the first pre-requisite of a defence of provocation should be that the defendant acted in response to (1) gross provocation or (2) fear of serious violence towards himself or herself or another, or (3) a combination of (1) and (2) (the trigger). 3.67 The second should be that a person of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way (the objective test).” This redefinition is problematic of several fronts.
Firstly, the nebulous and ill-defined term, “gross”, in reference to provocation inflicted upon the defendant, adds nothing to the current state of the law. “How for example, is the judge to direct the jury how they should approach these issues?” The Commission probably anticipated this as seen in para 3.68, where they pre-empted the criticism by undertaking a feeble attempt at definition, “that the essence of gross provocation is that it is words and/or conduct which caused the defendant to have a justifiable sense of being seriously wronged.” But this does not help either because what this means for the jury is that essentially should they decide on the facts of the case that the provocation is not “gross”, the defendant could still be potentially convicted of murder despite the jury feeling strongly that he objectively possesses a “justifiable sense of being seriously wronged” And how would you be able to judge objectively what would constitute a “justifiable sense” when you do not have the liberty to consider subjective characteristics, should you take the DPP v. Camplin (1978) and Andrew Ashworth line of reasoning, where you maintain the strict distinction between characteristics relevant to the provocation and those relevant to the ability of self-control. The emphasis in the Law Commission’s proposal seems therefore to be placed entirely on the gravity of the provocation aspect, and what this is turn means is that the distinction between the murder charge and the manslaughter charge hinges upon this pivotal issue. The Commission’s palpable antagonism towards the majority decision in R v. Smith (Morgan) rears its ugly head here, in its complete doing away with the issue regarding the defendant’s mental state at the time of the killing. This must be one of those areas that the Commission felt was too broad, and yet too narrow at the same time. Because on the one hand, by focusing on the provocation itself and the reaction it brought out in the defendant that eventually impelled the killing, and not considering the mental impairments and abnormalities that might have affected the defendant’s ability to exercise proper self-control, the Commission is obviously trying to tighten the noose on this defence and make it harder for one to rely on it by narrowing the defence to whether the provocation was enough to make a reasonable man do as the defendant did. But on the other hand, it appears to widen the category of people who might avail themselves of such a defence, such as the defendant who has not lost his self-control and upon provocation, coolly and calmly brings about the death of the victim. Is it better law to provide such cold-blooded killers with recourse to such a defence? It seems not, but should the Law Commission’s proposals be implemented, “There is, it seems to us, nothing to prevent the jury bringing in a verdict of manslaughter provided they also conclude that a “person of ordinary tolerance…might have reacted in…a similar way.””
The Law Commission probably did not intend for this, their foremost concern being that the provocation defence such be returned to its pre- R v. Smith (Morgan) state, where the test, with the exception of age, should exclude characteristics only relevant to the defendant’s capacity for the exercising of self-control. A corollary of this strict adherence to the dichotomy, between characteristics relevant to the provocation and those relevant to the ability for self-control, is the maintenance of the mutual exclusivity between the provocation and diminished responsibility plea. It could perhaps be argued that instead of it being a corollary of the dichotomy, it could in fact be the underlying reason for the bifurcation in the first place. However one chooses to look at it, suffice to say that they are directly related. There has been a lot of debate regarding whether or not the two pleas should indeed be amalgamated, Mackay and Mitchell insisting that the distinction not be maintained, with a combined defence being the appropriate vehicle for reform, and Macklem and Gardner arguing the complete opposite. But one thing that both groups see as being integral to the whole debate is the issue of self-control or as Mackay and Mitchell would like to refer to it, as being an instance where the “accused’s powers of reasoning being so affected…that he no longer has full capacity for rationality.” Regardless of how one defines it, it is this crucial issue of emotional disturbance, which the Commission has sidestepped altogether by dropping it completely from their test of provocation. In fact, one can make the argument that it is this centrality of the emotional-disturbance that divides the two camps. This was clearly seen in No provocation without responsibility: a reply to Mackay and Mitchell, by John Gardner and Timothy Macklem.
For Gardner and Macklem, the difference between the two pleas lies in the fact that in the case of the provocation defence, the “rationality deficit” or emotional disturbance is of relevance only to the action, but not to the “fury that impelled the action” whereas in the diminished responsibility plea, the “rationality deficit” applies to both. In other words, for one to rely on the diminished responsibility plea, the circumstances must be such that the irrationality or deviance from the “reasonable person” standard must not only characterise and be embodied in the end result ( i.e. the killing of the victim) that is the disproportionate reaction, but also to the antecedents to such a behavioural abnormality. Section 2 of the Homicide Act 1957 lends credence to such a view in that for diminished responsibility to be pleaded, the defendant had to be completely delusional at the time of the killing, i.e. that there was not an iota of justification in his outwardly behaviour. In stark contrast, Mackay and Mitchell in their arguing for an amalgamation of the two pleas, insist that both are concerned with rationality defects, albeit be on different points on a sliding scale of culpability. To adopt such a view would be to put the cart before the horse, because provocation and diminished responsibility are founded on different premises. The provocation defence is predicated upon an admission of guilt, and the defence works as a partial excuse. The diminished responsibility plea is predicated upon not so much as a qualified admission of guilt but rather, an assertion that it was not inherent in the defendant the capacity for behaving appropriately and hence, works as a denial, albeit partial denial of responsibility and culpability. The Commission talks about this proposal by Mackay and Mitchell in paras 3.164-3.165 of the Report and it is noted that, “It attracted a small amount of support from consultees, but a far greater number were opposed to it. These included the Royal College of Psychiatrists…” and in para 3.166, the Commission states its position unequivocally, “A merger of the two defences would not be compatible with our present thinking about the way in which the defence of provocation should be reshaped, and we do not recommend it.” I agree with this maintenance of distinction between the two defences wholeheartedly.
Regardless of which view one chooses to adopt, it is clear that the Commission in not addressing the range of human emotions, not just within the realm of anger and fear but also in other areas such as “despair, grief, compassion or disgust”, has not quite been able to deal with the issue of self-control within the provocation defence quite as well as it would have otherwise. It is foolish not to consider the self-control element and the emotional disturbances that have potentially obscured the faculty of reasoning. Instead they have looked to its “moral basis” to derive its legitimacy. In trying to pinpoint the essence of provocation, they stated, “The preferred moral basis for recognising a partial defence of provocation is that the defendant had legitimate ground to feel strongly aggrieved at the conduct of the person at whole his/her response was aimed, to the extent that it would be harsh to regard their moral culpability for reacting as they did in the same way as if it had been an unprovoked killing.” The problem with this definition is that it makes it seem as if the justification for the provocation defence lies in the fact that the defendant, in his perpetrating the crime, is at some level and in some small part, justified to do so, on the basis of revenge. Also, as Mackay and Mitchell point out, the “preferred moral basis” category is by no means an exhaustive one and it is merely an exampled of provoked behaviour. It must be noted at this point that though the revenge argument might be misguided, with regards to justifying the defendant’s actions, albeit to a very small degree, there is a certain element of truth to this. V. Norse in Passion’s Progress: Modern Law Reform and the Provocation Defense, states that, “Some defendants who take the law in their own hands respond with a rage shared by the law. In such cases, we ‘understand’ the defendant’s emotions because they are the very emotions to which the law appeals for the legitimacy of its own use of violence. At the same time, we continue to condemn the act because the defendant has claimed a right to use the violence that is not his own.” Therefore, given that the law responds to the killing much in the same way as the particular defendant, on the basis of a collective emotion by the jury or for that matter, by the judicial system at large, and that it sees itself as the body that should rightfully exert the revenge, be it through a murder conviction or a manslaughter conviction, we have once again established the point that the centrality of the debate lies in the emotional state of the defendant at the time of the killing, the “rage” that compels and is the underlying cause of the action. Norse goes on to state later in the article, “When we are sure that the victim would not have shared the killer’s emotional judgments or when we know that the victim would not have expected punishment for the acts triggering the defendant’s outrage, we see the defendant’s claim for compassion is false. It is a claim that we share in a set of emotional judgments vis-à-vis the victim that are not shared.”
It must be noted that in Part 5 of the Report, there is a discussion of whether or not the mandatory life sentence should be abolished, and how this relates to the issue of the diminished responsibility pleas, and the preponderance of the respondents felt that the defence should be maintained even if the mandatory life sentence was abolished. Also, it was the Commission’s view that even if the mandatory penalty was to be removed, there is still good reason to maintain the distinction between the categories of murderers and provoked and diminished responsibility killers. It is stated in para 5.18 that “Consultees frequently expressed the view that it is unjust to label as murderers those not fully responsible for their actions. Some consultees referred to the stigma which attaches to a conviction for murder, the most serious of all crimes. According to those consultees, the reason why it is unjust is that their culpability is diminished. Reduced culpability should be reflected in “fair and just labelling” and not just by mitigation of sentence.” The Commission in its conclusion states that pending any full consideration of the murder charge, s.2 of the Homicide Act 1957 should remain unreformed but makes the point that in instances where defendants are compelled to rely on the diminished responsibility plea, when in fact their true defence is that they acted out of “fear or future violence”, defendants should be allowed to rely on the provocation defence, rather that a modified and almost, artificial form of diminished responsibility.
Having said all that, it must be concluded that the even if the proposals set out by the Commission are actually implemented and consequently, incorporated into the body of law in this area, it would not do much good because there needs to be a complete rethink and reformulation on the whole law of murder. The proposals of the Commission merely put off the inevitable. In some areas, their recommendations would actually bring about a regression in the law of murder. This is epitomised by their insistence of this need for “justifiable sense of being seriously wronged”, and their misguided proposal of doing away with the need for emotional disturbances in relation to the provocation defence.
. Mackay, R.D. and Mitchell, B.J., But is this Provocation? Some Thoughts on the Law Commission Report on Partial Defences to Murder (London: Sweet & Maxwell Ltd, 2005), p. 44.
