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Murder - defences - provocation

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Only available in a murder case

Provocation is only available in a trial for murder, not for assaults or any other offence.

 

It has often been described as "a concession to human frailty" introduced by the common law to avoid the strictness of the single penalty (of death) for murder.

Provocation is a common law defence which has been modified by

Section 3 of the Homicide Act 1957 which provides:

 

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by 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 the effect which, in their opinion, it would have on a reasonable man."

 

Section 3 does not state the effect of a successful defence - it is by virtue of the common law that the offence is reduced to manslaughter.

The procedure:

  1. Once the judge has decided there is sufficient evidence that the defendant was provoked, whether or not the defence has been raised expressly by the defendant, he must leave it to the jury to answer the questions:

  2. Was the defendant provoked to lose his self-control? and

  3. Was the provocation enough to make a reasonable man do as he did?

Section 3 places an evidential burden on D.

 

D must raise sufficient evidence of provocation for the judge to leave the defence to the jury.

Whether D has produced sufficient evidence is a matter of law for the trial judge alone to decide. Any witness at the trial, not necessarily by D alone, can provide this evidence.

 

Since the 1957 Act, it has been capable for anything to constitute provocation, including words alone, actions by third parties, and provocation directed at third parties.

R v Doughty [1986]

The persistent crying of a 17-day-old baby could constitute provocation. The jury should have been directed to consider how the reasonable man would have responded.

Was the defendant provoked?

The subjective (or factual) test

R v Acott [1997] HL

There are two tests,

the subjective test and (below)

The objective test

1. Subjective – D must be shown to have actually lost his self-control.

 

If there is evidence that his actions were premeditated, or that he had been able to compose himself between the provocation and the killing, then the defence cannot be left to the jury.

R v Duffy [1949]

Devlin

"…the provocation must cause 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".

Where there is a gap in time between the provocation and the killing - "cooling time" - D may encounter difficulties in trying to establish the defence of provocation.

R v Ibrams and Gregory (1981)

Lawton LJ expressed the view that a time gap between the last act of provocation and the killing refuted any evidence that it had been carried out by the defendants suffering from a sudden and temporary loss of self-control as envisaged by Devlin J in Duffy [1949].

R v Thornton [1992]

D argued that s.3 required the jury to have regard to "everything both said and done according to the effect which in their opinion it would have on a reasonable man". 

Beldam LJ rejected this:

"In every such case the question for the jury is whether at the moment the fatal blow was struck the accused had been deprived for that moment of the self-control which previously he or she had been able to exercise".

Provocation and causation contrasted.

In provocation the law is concerned with the impact of the victim's conduct on the defendant's mind.

 

When the issue is causation, the law is concerned with the effect of the defendant's conduct on the victim.

 

All evidence is admissible; including evidence of any mental or other abnormality making it more or less likely that the defendant lost his self-control.

Battered Woman Syndrome 

What it is

A post-traumatic stress disorder.

The jury in a murder trial can consider Battered Woman Syndrome as a relevant characteristic, which makes her more prone to loss of self-control.

In 1994 battered women's syndrome was included for the first time in the British classification of mental diseases. An appeal out of time was allowed in R v Hobson [1998] CA and a retrial ordered to consider the new medical evidence.

 

Battered woman syndrome was confirmed as a characteristic in R v Smith (Morgan) [2001] HL

 

However, in Jersey v Holley [2005] PC the position was returned to situation before Morgan Smith.

 

This principle was reaffirmed in R v Thornton (No 2) [1996].

Following the introduction of fresh evidence, a retrial was ordered by the Court of Appeal to consider the effect of Battered Woman Syndrome and the defendant was convicted of manslaughter on the grounds of diminished responsibility.

 

R v Ahluwalia [1992]

The trial judge's direction to the jury in accordance with Duffy had rightly stated that provocation was only available to a defendant who killed whilst suffering from a sudden loss of self-control, and that s3 of the Homicide Act 1957 had not been intended by Parliament to affect the operation of the test in Duffy [1949].

(However, a retrial was ordered to consider the defence of diminished responsibility including the effect of "battered woman syndrome" and Ahluwalia was convicted of manslaughter).

The Final Straw Principle

R v Humphreys [1995] CA

a defence of provocation can succeed if there is a series of incidents over time which drove the woman to murder (the last straw principle)

D pleaded provocation, claiming that a jibe about wrist cutting had been the trigger which caused her to "snap".

 

The Court of Appeal held that the judge had misdirected the jury.

 

(1) The accused's psychiatric characteristics (stemming from abuse) should have been attributed to the reasonable person when the jury considered the application of the objective test.

 

(2) The jury was entitled to the benefit of an analysis by the judge of the various strands of provocation at the successive stages starting from her first meeting with V and culminating in his death. This was necessary because the relationship was a very complex story, involving both much earlier incidents of violence and the breakdown of the sexual relationship, and a series of events on the night of the killing, including the threat of rape and he taunts. It was not sufficient simply to leave it to the jury to make sense of the importance of all these events other than the final taunts.

R v Thornton (No 2) [1996]

Lord Taylor CJ;

On the relevance of battered woman syndrome to the defence of provocation,

"…a jury may find there was a sudden loss of control triggered by a minor incident if the defendant had endured abuse over a period, on the "last straw" basis…."

The objective (or evaluative) test

The reasonable man test

The objective test;

 

Having decided that the defendant was provoked, the jury must decide whether a reasonable man would have acted as the defendant did.

 

In the language of the statute, "the question whether the provocation was enough to make a reasonable man do as he did ... [taking] into account everything both done and said according to the effect ... it would have on a reasonable man".

 

Broken down, this objective ingredient has two elements.

  1. The first element calls for an assessment of the gravity of the provocation.

  2. The second element calls for application of an external standard of self-control: "whether the provocation was enough to make a reasonable man do as he did".

The statutory reference to a 'reasonable man' in this context is, by common accord, not the best choice of words. It is difficult to conceive of circumstances where it would be 'reasonable' for a person to respond to a taunt by killing his tormentor.

 

Rather, the phrase is intended to refer to an ordinary person, that is, a person of ordinary self-control.

 

The reasonable man is attributed with the defendant's particular characteristics which might be relevant to the provocation.

 

DPP v Camplin [1978] HL

Lord Diplock gave the following definition of the reasonable man:

"… the "reasonable man" has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today."

The reasonable man is a person having the power of self-control to be expected of an ordinary person of the sex and age of the defendant, but in all other respects showing such of the defendant's characteristics as they think would affect the gravity of the provocation to him.

 

Lord Simon of Glaisdale in Camplin referred to "a reasonable man" means "a man of ordinary self-control".

Similarly in R v Morhall [1996], Lord Goff commented that, despite the express words of the statute, to speak of the degree of self-control attributable to the ordinary person is "certainly less likely to mislead" than to do so with reference to the reasonable person.
 

Would such person react as D did?

 

The question is not merely whether such a person would in the circumstances be provoked to lose his self-control but also whether he would react to the provocation as the defendant did.

Age and sex relevant, but not always race or physical peculiarities

Hence, whilst the age and sex of the defendant would always be attributed to the reasonable man, other characteristics such as racial origin, or physical peculiarity, would only be considered to the extent that they were relevant.

 

In Camplin, the reasonable man would be the reasonable 15 year old, as the defendant's youth was a relevant characteristic.

Intoxication or excitability not relevant

As certain characteristics such as intoxication or excitability would be ignored for policy reasons, the defendant's drunkenness was irrelevant. A slow down in traffic is not relevant (Steyn LJ in Acott)

Taunts about past behaviour can be relevant

Whether the judge should exclude from the jury's consideration characteristics and past behaviour of the defendant at which the taunts are directed, which in the judge's view are inconsistent with the concept of a reasonable man.

R v Morhall [1995] HL

D contended that his addiction to glue sniffing was a special characteristic that should have been taken into account as affecting the gravity of the provocation.

Alcoholism, drug addiction, paedophilia are relevant factors

Lord Goff;

"In DPP v Camplin, the House of Lords had stressed that the jury should take into account "all those factors" or "the entire factual situation" which would affect the gravity of the provocation. There was nothing in that judgment to rule out any disreputable characteristics…"

Addiction relevant but being intoxicated is not.

A distinction may have to be drawn between two situations:

 

(a) where the D is taunted with his addiction (for example, that he is an alcoholic, or a drug addict, or a glue-sniffer), or even with having been intoxicated on some previous occasion, in which case it may where relevant be taken into account as going to the gravity of the provocation, and

 

(b) where the D was intoxicated (being drunk, or high with drugs or glue) at the relevant time, which may not be so taken into account, because that, like displaying a lack of ordinary self-control, is excluded as a matter of policy.

Luc Thiet Thuan v R [1996] PC

Characteristics of the defendant, which make him more prone to lose self-control than the ordinary person, cannot be attributed to the reasonable person for the purposes of the objective test. In doing so, the Privy Council cast doubt on the Court of Appeal decisions in Ahluwalia (1992), Humphreys (1995), and Thornton (No 2) (1996).

 

Self-induced provocation

If the defendant induces the provocation by some act of his own the defence will still be available.

Jersey v Holley [2005] PC

The reasonable man test might act harshly on a defendant with a mental abnormality.

Section 2 should not be distorted to accommodate the types of case for which section 3 was specifically enacted.

 

Therefore the accused should be judged against an inflexible, constant and objective standard. This is something that many inadequate defendants may never be able to achieve and to that extent the test may deprive many of a fair defence, battered women in particular.  The law of provocation is now uncertain and probably back where it was 25 years ago.

 

R v Johnson [1989] CA

Held: S3 of the Homicide Act 1957 provides that anything can amount to provocation, including actions provoked by the defendant.

 

The law of provocation is in a mess.

The Privy Council believes Parliament should sort it out (together with all the law of homicide) as soon as possible; the courts can do no more with it, it is now up to Parliament.

 

Within less than 4 years, they have pronounced R v Smith (Morgan) [2001] HL to be wrong, in the case of Jersey v Holley.

This means that women suffering from Battered Woman Syndrome may satisfy the first test in Section 2 Homicide Act 1957, but not the second objective test and so appear to be back in the position they were before Morgan Smith and have to rely on diminished responsibility. In fact, their Lordships urged courts to read together these two defences to obtain an overall, balanced view of the law in this field.

 

Back to
Luc Thiet Thuan v The Queen [1997]
DPP v Camplin [1978] and
R v Morhall [1996]

In applying the second ‘objective test’ we are advised to no longer use the term ‘characteristics’ of a defendant, but to rigorously apply a uniform objective standard of the degree of self-control to be expected of an ordinary person, to be judged by one standard, not a standard which varies from defendant to defendant.

The reasonable man described in Luc Thiet Thuan, Camplin and Morhall are to be applied to all defendants. The jury are required to judge the defendant's loss of self-control by reference to the standard of the degree of self-control to be expected of an ordinary person of the defendant's age and sex, and not a defendant with the ‘abnormalities’ of the accused.

The Board stated that in adopting the formulation of Sec 3 Homicide Act 1957 Parliament recognised the potential hardship to defendants suffering mental abnormality and enacted the defence of diminished responsibility in s 2.

Luc Thiet Thuan v The Queen [1997]. R v Camplin [1978] and R v Morhall [1996] are to be considered the correct test for the “objective test”

Jersey v Holley [2005] PC has thrown the law of provocation into position where it is in need of urgent reform.  The following information regarding the case of Morgan Smith now appears to be bad law insofar as the second objective test is concerned.

R v Smith (Morgan James) (2000) HL

For a short time fear became a new defence for women who killed, but was removed by R v Holley

Lord Hoffmann:

"There are people (such as battered wives) who would reject any suggestion that they were 'different from ordinary human beings' but have undergone experiences which, without any fault or defect of character on their part, have affected their powers of self-control. In such cases the law now recognises that the emotions which may cause loss of self-control are not confined to anger but may include fear and despair."

Provocation

Homicide Act 1957 s 3

 

Requires

 

1. A subjective determination of whether D was in fact provoked to lose self-control ('whether by things done or by things said or by both together'), and

 

2. An objective determination of 'whether the provocation was enough to make a reasonable man do as [D] did'.

R v Smith (Morgan James) (2000) HL

Morgan Smith in 1996 killed a former flatmate, after they became embroiled in a fight over stolen tools worth £4,000.

 

His defences were that he did not intend to kill or cause grievous bodily harm; that he was suffering from diminished responsibility; and that he was acting under provocation. The jury rejected all three defences and he was convicted of murder in 1997. 

D appealed.....

The objective test.

The focus of the appeal was on the objective part of the test for provocation and whether the reasonable person could be given certain characteristics of the accused, in this case the characteristic of having a severe depressive illness.

Held:

Certain characteristics of the defendant, beyond simply their age and sex, could be taken into account when applying the objective test. Justice required that personal characteristics be taken into account.

Lord Slynn:

"If the concept of the reasonable man expressed in section 3 were accepted without any qualification, successful pleas of provocation would be rare indeed, since it is not altogether easy to imagine circumstances in which a reasonable man would strike a fatal blow with the necessary mental intention, whatever the provocation. It is in recognition of human frailty that the scope of the defence of provocation has, to a very limited extent, been enlarged."

Not all characteristics though

The House felt there was no problem in this approach creating an overlap between the defence of provocation and diminished responsibility, which would now both take into account the abnormality of the defendant. Lord Slynn appears to approve of the decision of R v Newell (1980), that the characteristic must have a degree of permanency.

Lord Hoffmann:

"A person who flies into a murderous rage when he is crossed, thwarted or disappointed in the vicissitudes of life should not be able to rely upon his anti-social propensity as even a partial excuse for killing."

And

"Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted upon the woman herself or her new lover."

However, in R v Weller [2003] CA this issue was left open and the court explained that it was a matter to be decided by the jury.

Provocation sometimes presents difficulties for the defence

Whether or not to rely on a defence of provocation is a dilemma which often faces those representing defendants in murder trials whose main defence is self-defence or lack of intent.

A defence of provocation may be intrinsically inconsistent with, or may otherwise weaken, other defences.

 

This was clear in the case of van Dongen and his brother where the court of appeal acknowledged  this fact.

August 2004, Law Commission published report

The report from the Law Commission on partial defences to murder has been published, here.

 

The report acknowledges the difficulties in wording of the conduct that should amount to provocation, particularly the objective test.  Much of their report appears to be in line with the recommendations of the Board of the Privy Council in Holley.

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