Reforms - provocation

Is there a problem?

Two women a week die as a result of domestic violence Hansard 14 July 2003.

Attempts to reform the law

There have been unsuccessful attempts to pass legislation to reform the law on provocation, for example:

A Bill to amend the Homicide Act 1957 in December 1991 failed; Hansard, here.

A Bill to amend the Homicide Act 1957 in May 1994 failed; Hansard, here.

March 2004, the Lord Chancellor, Lord Falconer proposes reform

Referring to the sentencing advisory panel sentencing of manslaughter by reason of provocation, particularly in domestic settings

Full speech here.

Partial defence

If provocation is raised as a defence it only reduces the conviction from murder to manslaughter, although provoked it implies that the defendant intended to kill.

Although often used with the defence of diminished responsibility it closes off other explanations as to how the deceased died.

In other cases, for example assault, provocation is not a defence but can be taken into account in sentencing.

If there were no mandatory sentence for murder it would not be necessary for this defence at all, only as a plea of mitigation.

Role of Parliament

It should be for Parliament to amend the law, it was Parliament that enacted the Homicide Act 1957.

Justice for Women a campaign group propose self-preservation defence:

Death of a child or vulnerable adult

The new offence of familial homicide, introduced in the Domestic Violence Crime and Victims Act 2004, closes a legal loophole that allows those jointly accused of the murder of a child or vulnerable adult to escape justice by remaining silent or blaming each other.

This measure puts a clear legal responsibility on adult household members who have frequent contact with a child or vulnerable adult to take reasonable steps to protect the child or vulnerable adult if they knew or should have known they were at significant risk of serious physical harm from members of that household.

The reasonable steps that an adult household member is expected to take will vary according to the circumstances of the case and ultimately it will be for the jury to decide if the person acted reasonably.

The public information leaflet is available at
http://www.ncvcco.org/files/157.pdf

Domestic violence accounts for 16 per cent of all crime (Crime in England and Wales 2003/4, Home Office 2004).

The history of provocation

History

Provocation has its origins in the common law where the courts allowed a defendant to evade a murder conviction by arguing that their victim did or said something that made them lose control.

It was given statutory form in 1957.

The case of Madeleine Humes, who was killed by her husband Les

D a solicitor killed Madeleine after she confessed to an affair with her karate instructor

She died after being stabbed by her husband 12 times in 15 minutes in front of her children. Their teenage daughter tried to seize the knife from Humes as he repeatedly stabbed her mother. Humes, who said in court he 'just saw this red mist', got seven years for manslaughter - leaving his wife's family furious.

Paula Watt, Madeleine's sister

"If Madeleine had survived and he had been charged only with attempted murder or GBH, he would have got more of a sentence than that, but he killed her, so he gets less. What kind of signal is that sending to people? All the way through, Les was seen as a victim - Maddie wasn't heard at all"

Solicitor Harriet Wistrich, of Justice for Women

"We call it the "nagging and shagging" defence - classically, it will be either "she was sleeping with someone else" or that she nagged him, but if it is simply that she is leaving you, is that enough of an excuse for murder?"

Other cases ....

Joseph McGrail, in 1992 received a suspended sentence for kicking his wife to death

Pleaded provocation on the grounds that she was an alcoholic and swore at him. The judge said the dead woman "would have tried the patience of a saint".

Rajinder Bisla, married for 18 years, strangled his 'nagging' wife, Abnash, received an 18-month suspended sentence for manslaughter due to provocation.

Women who kill treated differently from men

Sexual bias

The discrimination against women in the use of this defence is apparent in the arguments for the pardon of Ruth Ellis (the last woman to hang in the UK).

Ellis killed her lover in a rage but provocation was never raised at her trial.

The more recent cases of Kiranjit Ahluwalia and Sara Thornton highlighted the problems of the requirement for "a sudden and temporary loss of self-control", which is essentially a male response.

Lack of physical strength is cited as one reason why women do not respond with immediate violence to provocation.

Baroness Helena Kennedy, QC

In her book "Eve Was Framed, Women and British Justice" says women experience, 'a snapping in slow motion, the final surrender of frayed elastic'.

There is much public criticism of the way women are treated, for example the case of Rena Salmon.

Ahluwalia's conviction reduced to manslaughter

Ahluwalia's final appeal succeeded on the grounds of diminished responsibility not provocation. However the fatal act could have been a last minute loss of control.

In Thornton's case it was accepted that "battered woman's syndrome" could be taken into account.

Emma Humphrey's appeal succeeded because the cumulative effects of many years of abuse were taken into account.

Is it a licence to kill to "water-down" the defence for women?

Battered woman's syndrome is seen as a "licence to kill".

This avoids the fact that as provocation is only a partial defence the judge can inflict any sentence, including life, and she can be sentenced accordingly.

Lord Ashley attempted to introduce a Bill in 1991 to reform the law and it is interesting to note that the Speaker had to call the house to order while other honourable members ignored the debate, demonstrating what Ashley called chauvinism.

He said that the "The fallacy at the heart of Mr. Justice Devlin's dictum [in Duffy] is that it failed to appreciate that many people cannot regain normal self-control soon after brutality 'many people cannot regain normal self-control after brutality."

Advantages and disadvantages of reform or even abolishing the defence of provocation

Advantages

Disadvantages

It would acknowledge that society does not accept extreme violence as a response to actions or insults which do not include physical threats.

It would eliminate the historical anomaly in the law that excuses killings based on anger.

It would alleviate the fear that the defence is being used by men to kill women.

It would would remove the problems associated with complicated charges to the jury.

It would resolve the inconsistency of applying the offence of manslaughter to killing with intent.

The defence might be useful for women in situations of domestic violence who kill in self-defence but with excessive force in response to the provocation of physical or verbal abuse.

There could be an increase in acquittals by juries who no longer have an alternative to a murder condemnation in cases where they view the accused as morally less worthy of blame.

Murder might be considered an inappropriate term for killing under provocation.

Difficulties for the jury

The questions put before a jury on the issue of provocation can be difficult to answer.

For example, in R v Raven (1982), the 22-year-old defendant had a mental age of nine, and had lived in squats for about three years of his life. The jury was directed to consider the reasonable man as having lived the same type of life as Raven with his retarded development and mental age.

However, it is difficult to see how this problem can be avoided. Without some form of 'reasonable person' test, every little insult, which might cause a loss of temper, could be raised as provocation.

Equally, a reasonable person test which did not require jurors to take into account the characteristics of the accused would result in, for example, teenagers being expected to exhibit adult standards of behaviour, or the injustice seen in Bedder v DPP.

(Elliott & Quinn 4th Edition).

Problems with provocation raised by The Law Commission

The defence is inherently contradictory

The defence has internal contradictions because it is a compromise. It raises the question whether a reasonable person should ever respond to provocation by killing.

The "objective" requirement, "whether a reasonable man would have done as the defendant did," has been considered by the House of Lords / Privy Council four times in the last twenty five years, culminating in Smith (Morgan) with a 3:2 split. This demonstrates fundamental problems with the concept of the "reasonable man." Again in 2005 this was revisited in Jersey v Holley [2005] PC.

The wide meaning of provocative conduct

The fact that under section 3 of the 1957 Act there is no limit to what conduct is capable of "provoking" a defendant to kill means that completely innocent conduct on the part of the deceased may be regarded as provocation.

This is contrary to one of the fundamental rationales of the defence, which is that the victim "contributed" to the defendant’s lethal loss of temper.

The defence of provocation elevates the emotion of anger over other emotions such as fear, despair, compassion and empathy

It is questionable whether, in moral terms, a killing is necessarily less culpable when performed in anger as a result of provocation.

Indeed there is an argument that it is morally unsustainable for anger and sudden loss of self-control to found a form of defence to murder.

Sexual bias

By providing a partial defence where the response to provocation is to kill in sudden anger, but not where a killing is planned, the defence favours men who react in violent anger over women who kill with premeditation from fear rather than rage.

It is difficult to distinguish revenge killings, so as to exclude them from the defence

As a result of the courts stretching the requirement of "loss of self control" in order to accommodate battered woman’s syndrome cases, there is no clear test for distinguishing a "provoked" killing from a "revenge" killing.

The defence blames the victim of the murder

It blames the victim for the defendant’s inability to exercise control. In court the deceased cannot answer defence assertions.

Absence of a general standard of required self-control

The effect of the majority judgement in Smith (Morgan) is to reduce the threshold of self-control that individuals are entitled to demand of all members of society.

Practical difficulties with the operation of the defence of provocation

The fact that the burden of proof remains on the prosecution in cases of provocation, but is borne by the defence in relation to diminished responsibility, may cause confusion in cases where a defendant runs both defences.

It is also confusing to juries that in cases where the defence do not suggest, and no sensible person could suggest, that an ordinary person might have acted as the defendant is alleged to have done, the judge nevertheless has to give directions to the jury about the law of provocation if there is any evidence that the defendant acted in loss of self-control.

Law Commission

Their final report which contains all you need to know about all partial defences to murder is here.

The defence of provocation, was so beset by “moral and theoretical difficulties” that it should be scrapped (the Law Commission in 2003)

“There’s a problem with the law on provocation that institutionalises the idea that an attack by a man on his wife is her fault,” the Solicitor-General Harriet Harman said recently. She argued that this law meant the victim was characterised as “a nag or a bad mother”.

The Law Commission quoted the “penetrating judgment” of the late Professor Sir John Smith in R v. Smith (Morgan) (2001), which concluded with the words: “What a muddle.”

If it was abolished the Government would have to take a look at, and possibly scrap, the mandatory sentence of life imprisonment for murder. The judge could take into account excessive force in self-defence when passing sentence. The consultation process comes to an end on 31 January 2004.