THE DEFENCE OF PROVOCATION

There are three special defences to the charge of murder. These defences are: provocation, diminished responsibility and suicide pact. These defences were introduced in the Homicide Act 1957 because it was felt that the charge of murder might be unfair and harsh in some circumstances. It is important to remember that the special defences are partial defences; they do not acquit the defendant of the charge but reduce it to voluntary manslaughter.

One of the key advantages to being convicted of manslaughter rather than murder is that the judge can avoid imposing the mandatory sentence of life imprisonment. For manslaughter the sentence is at the judge’s discretion.

Provocation

Section 3 of the Homicide Act 1957 states: ‘Where there is evidence that the person charged with murder was provoked (by things done or said or both) the question as to whether it would make a reasonable man do this is left to the jury’.

A wide range of things said or done can constitute provocation. It must be left entirely to the jury to decide what constitutes provocation. The provocation need not even be deliberate on the part of the victim. In Doughty (1986), a man killed his 19-day-old child who would not stop crying. The jury accepted the defence of provocation, and the charged was reduced to voluntary manslaughter.

R v Duffy (1949) established that for provocation to succeed as a defence there must have been ‘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.’ In other words, the defendant must have been so sorely provoked that he experienced a sudden and temporary loss of control and became so passionate that he was for a brief time not master of his own mind. In other words, he ‘saw red’ and ‘lost it’.

Duffy (1949) has been updated and amended by a number of cases. In R v Sara Thornton (1996) the defendant four years earlier had been found guilty of the murder of her husband who had mentally and physically abused her for a considerable period of time. Mrs Thornton finally stabbed him to death and was convicted of murder. However, four years later, the Court of Appeal established that women often behave quite differently from men when provoked. Men usually experience ‘a sudden and temporary loss of control’ while women often experience ‘a slow burn’. In other words, women may brood for quite a period of time before reacting to provocation. Mrs Thornton’s charge was reduced to voluntary manslaughter in 1996 and she was released.

Therefore, the jury may accept the final act of provocation before the fatal assault was ‘the last straw’ in a series of provocative attacks that culminated in the homicide. This is especially likely in ‘battered wives’ cases such as Thornton (1996).

The case of R v Ibrams and Gregory (1981) has helped to establish that there must normally be ‘a sudden and temporary loss of control’ for the defence of provocation to succeed. In this case, the defendants were severely provoked by Ms Gregory’s ex-boyfriend; they then hatched a plan which led to the ex-boyfriend’s unlawful killing. They were found guilty of murder because there was a lengthy gap between the provocation and the killing.

The Homicide Act 1957 raised the question as to whether the provocation was sufficient to make a ‘reasonable man’ do what the defendant did.
What exactly is a ‘reasonable man’?

There are two parts to the reasonable man test:

For the purposes of self-control, the level is the power of self-control expected from a person of similar age and gender as the defendant. The key case here is Camplin (1978) when the defendant, a 15-year-old boy, killed a man who was taunting him about his sexual abilities. The court decided that the jury should take into consideration the reaction that might be expected from a 15-year-old boy rather than a fully-grown reasonable adult. (the subjective test)

The jury must also consider whether the provocation was serious enough to provoke the act of retaliation from the defendant. In other words, was the violent reaction of the defendant justified? (the objective test).

In Camplin (1978), the Law Lords made it clear that the jury could take into consideration any relevant facts about the defendant. The question facing the jury is whether, in all circumstances of the case, the defendant’s loss of self-control was EXCUSABLE, and this will be judged by reference to how a similar person in his/her position exercising ORDINARY powers of self-control would have behaved.