At its core, is the defence of provocation based on an excusable loss of self control in a situation of intense psychological pressure or on a justifiable feeling of anger occasioned by the wrongful acts of another? 2004
In many jurisdictions, the law of provocation has become increasingly subjectivised. What explains this development, and should it be arrested? 2003
‘A successful provocation plea thus involves a concession of partial responsibility….on both excusatory and justificatory grounds….The excuse….is that self-control had been lost at the time of the killing, and the moral justification is that even a reasonable person might have lost control and killed in the circumstances, so grave was the provocation sparking off the loss of self-control. J. Horder, Provocation and Responsibility, -Discuss. 2002
Consider the roles of justification and excuse in the provocation defence-2001
to what extent and in what ways should the law of provocation take account of the subjective characteristics and experience of the accused? 2000.
‘It is a supreme irony that criminal law’s gradual recognition of the specific situation of battered women who kill their abusers has prompted the expansion of a defence-provocation-whose origins lie in a specifically masculine norm of conduct’ 1999.
What are the implications of recent developments in the law of provocation for:
a) the ideal of gender-neutrality in criminal law. and
b) the relationship between objective and subjective elements in criminal defences? 1998
‘The law of provocation is radically over-subjectivised’-Discuss, suggesting how the law might be reformed. Test.
- A. Provocation’s Pitfall: Formulating a Workable Test
In the past ten years, an increased amount of provocation appeals and a series publications of consultation papers and reports by Law Reform Commissions of England and Wales, Scotland, Ireland and Australia, have highlighted the existing tensions and inconsistencies with which the law of provocation currently confronts itself. Whilst on a larger scale, the issue at hand is the need for the complete revision of the law on murder, this paper will aim to deal with the particularities of the partial defense of provocation, and will discuss the extent to which it is ‘over-subjectivised’. Part A will discuss the discontent of the objective requirement and the criticisms of the “reasonable man test”, Part B will, by means of discussion of the most recent case law, determine whether indeed the law is over-subectivized, and Part C will outline the main proposals for reform by both the Law Commission and other authoritative sources. The issue of the nature and rational of the provocation plea as either being justificatory or excusatory will be mentioned throughout the paper, as it is argued to be crucial to the understanding of the this partial defense to murder, shedding “valuable light on how efforts to reform the law in this area should proceed”.
Examining the Objective Criterion: Criticism and Discontent
In the jury’s determination of finding whether a person charged was provoked, according to s. 3 of the Homicide Act of 1957, the jury has to determine whether there has been a loss of self control on the part of the defendant (the subjective criterion), and subsequently, whether the provocation was ‘enough to make a reasonable man do as he did, taking into account everything both done and said’ to the effect which it would have upon such a reasonable man (the objective element). Perhaps the greatest criticism of this objective requirement is that it is not easily understood by the juries who are required to apply the test, most probably because it is not clearly explained to them – even more likely, because the law’s ‘reasonable man’ is a fictional and farcial image: an anthropomorphic being who functions as the person the law “expects everyone to be”.
The questions if often posed why ‘Reasonable man’, who is exactly what the law wants us to be, is allowed to lose control and kill as a result of provocation? Is killing, even in justified anger, not the “antithesis of reasonableness”? This self-contradicting controversy – although it has become a bit of a ‘cliché’ – illustrates the difficulties that the juries face when confronted with a very human, and thus fallible defendant, who obviously does not match up to the hypothetical standards of the ‘reasonable man’. Expecting the “congenitally incapable”, (let alone the rest of us) to meet up to this high standard is often criticized as being unfair. It is furthermore argues that the standard of a ‘reasonable man’ becomes all the more difficult to reconcile with heterogeneous societies –to what extent is cultural diversity, ethnicity or race taken into account with regards to the capacity for self-control? Perhaps it would thus be more effective to eliminate all reference to the ‘reasonable man’ altogether.
Between Justification and Excuse: Finding a Balance
In the course of history, law has determined what it considers to be wrong, right or tolerated conduct by outlining the rationale for a defense. What happens when this rationale is unclear, vague or too complex to understand and indeed, be applied by a jury trying the facts of a specific case? In moving away from a time in which it expressing outrage at a provocative act was the right – and justified- thing to do because of the victim’s wrongful conduct and society’s conception of the role of anger, the rationale for the defense of provocation shifted. Whereas up until around the 19th century the predominant belief that a loss of self control should be justified because “it is both natural and right to become angry in certain circumstances”, the contemporary notion of losing self control is predicated upon the notion that even a reasonable person can, under extenuating circumstances be provoked to lose his self control. Although the act is wrongful, he is excused for his lack of self control. The shift that thus took place was one focusing upon the anger as a rightful emotion under certain circumstances, to the loss of self control as an excusable consequence of human frailty. Whilst not right in the sense of justified, this behavior is not always blameworthy and can therefore be excused. S. 3 of the Homicide Act of 1957 did not require a provocative act to be physical, and so words alone were sufficient to make a person lose control. The obvious concern was that such a low threshold of mere words would enable defendants to successfully plea provocation at any form of the most trivial provocation; the objective test was regarded to be a sufficient barrier to such claims.
Precisely because words were regarded sufficient as provocation, the ‘reasonable man’ test had no external factors to rely on in the determination of whether a taunt, for example, was indeed sufficient for a defendant to excusably lose his self control. The basis of determination of reasonableness thus became the psyche of the defendant; what makes him ‘tick’ is equally what makes him ‘explode’. To understand and allow the first means to excuse the second. Whereas traditionally, the determination of ‘reasonableness’ and ‘unreasonableness’ occurred through “prevailing social standards”, with the defense encapsulating a more justificatory nature, the focus has now shifted to the psychological make up of the defendant. The question became not so much what we reasonable expect of ‘man’ as what we reasonably expect of the defendant. The shift to a very excuse-based plea of provocation is apparent in the case law as discussed below in Part B.
B. ‘Subjectivising’ the Objective Element: Has it gone too far?
The logical consequence of the general discontent of the objective test was the law’s compromise to subdue such discontent and to move away from the vague and unrealistic concept of the reasonable man. This change can be noted most importantly in DPP v Camplin, in which the House of Lords defined the reasonable person as ‘having the power of self control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation’. A clear line was drawn between characteristics of the defendant going to the gravity of the provocation (which are to be taken into account) and characteristics going to the defendant’s degree of self-control (not to be taken into account, except for the age and the sex of the defendant). Besides being an “unstable compromise”, the distinction was referred to as ‘too great a nicety’ by Lord Diplock, as indeed, it is.
It is an awkward approach to suggest that a loss of self control be evaluated on its own accord as it is intrinsically bound up with the psyche that transfers the emotion to the outside. It would be unthinkable to draw a clear-cut line between a person’s psyche and his perception of the intensity of the provocative act: as argued by Norrie, every case of ‘provocativeness’ is thus a case of ‘increased provocability’. When we are deciding issues of blameworthiness on a predominantly objective basis, the variations of the psychological make-up of the defendant – referred to as ‘deferential susceptibility’ – are not taken into account to the extent it became necessary to do so with regards to the changing conception of loss of self-control. This has urged the law to find cracks through which the psychological make-up of a defendant can have an impact upon the provocation plea. The ‘subjectivization’ of the law was thus a logical development, yet, as we shall see, not a completely desirable one.
Post-Camplin Case Law and a Returning Discontent
Provocation might be a concession to human frailty, but should it be a concession to individual weaknesses and very personal and particular idiosyncrasies? Case law since Camplin has struggled whilst stretching the subjective boundaries of the ‘reasonable man’ within the apparent confines of the objective test. The question arose whether mental characteristics which make the accused less capable of keeping his self control are to be taken into account in determining the objective test; whether a reasonable person would have reacted in the way that the accused did. A series of cases after Camplin clearly indicate that there was much confusion as to this question. In Dryden, for example, the Court of Appeal held that the defendant’s ‘possessiveness and eccentricity’ were characteristics to be taken into account by the jury. In Humphreys, the jury was allowed to consider the accused’s ‘attention seeking and immaturity’. In Morhall the House of Lords considered self-addicted glue-sniffing to be relevant to the reasonable person test, regardless of the fact that such a characteristic was ‘discreditable’. Discreditable or not, Lord Goff claimed that the function of the reasonable person test “is only to introduce as a matter of policy, a standard of self-control which has to be complied with if provocation is to be established in law”. Such a formalistic approach to a very human defense seems a rather safe way of preventing the need for a stronger moral and normative position.
A series of clumsy and confusing case law was eventually followed by R v Smith. Not only did it reject the ‘classical’ distinction between characteristics going to the gravity of the provocation and those going to the defendant’s capacity for self control, but also accepted that any characteristic can be regarded by the jury as relevant when deciding upon the reasonableness of the defendant’s act. Serious clinical depression thus became one more ‘characteristic’ to be added to the list of increasingly subjective particularities to be considered by the jury in applying the ‘objective’ test of finding reasonableness in the defendant’s loss of self control. Age and sex no longer hold the monopoly of the only factors as being relevant to self-control. The only ‘limitation’ to ‘over-subjectivisation’ of the objective standard is the judge’s ‘guide’ in telling the jury that traits such as “pugnacity, male possessiveness, obsession and jealousy” should not be considered appropriate or accepted traits to be taken into account when determining a reasonable loss of self control. The jury, nevertheless, has complete freedom to consider any of the defendant’s characteristics or circumstances when applying the ‘objective test’.
The consequence of R v Smith seems to be that no limit can be placed on the list of characteristics that can be taken into account when applying the ‘objective test’. Although, as Lord Hoffman explains, the jury should not allow someone to rely on their ‘violent disposition’, bad temper, drunkenness, exceptional excitability, there is nothing standing in their way of doing so. Defendants are handed a carte blanche for the loss of self control with which they can present to the jury, and it thus lies in the hands of the jury to fulfill the normative role of determining whether a loss of control is reasonable or not. If the jury chooses to consider such a characteristic, the defendant is excused for his loss of self control brought on by his increased ‘provocability’ resulting from his own particular characteristic.
The law has thus come to judge those defendants on their own standards. If the ‘trigger’ for the loss of self-control is internal rather than external to the defendant, it is argued, then “it cannot form the basis of any assessment that the death was attributable to the event rather than the individual”. This is definitely so. Without the determination of an objective, external factor, there is no way to qualify the reaction as objectively reasonable. If reasonableness is thus individualized, then the law is indeed creating ‘monsters like the reasonable obsessive, the reasonable depressive alcoholic, and even…the reasonable glue sniffer’ – there is nothing to stop an even more colorful entourage from following in course. It is thus safe to say that the law of provocation has indeed been ‘over-subjectivised’.
The Moral Consequence of R v Smith
Via R v Smith, the law on provocation has arrived at a point where we are excusing the defendant based on his own standards. As the justificatory element thus seeped out of the defense of provocation and was taken over by excuse, besides signalizing a change in the law’s conception of provocation as such, did it affect the law on a broader, moral basis? What, if anything, has been compromised in the House of Lords’ decision in R v Smith and what is the hidden consequence of shifting from justification to excuse? With the complete downgrading of the objective, external element in Smith, what has happened to ‘justification’? The law seems to have skipped ahead too far and left behind an important normative issue: whether indeed the defendant may be fairly expected to control an impulse to kill under the circumstances – or whether we, as a society, agree and recognize that there are certain emotions which we cannot easily control. What must be required is that the defendant’s conduct “be by way of (understandable) reaction to an extreme external prompt” because “affording an excuse for a provocable disposition is…inconsistent with an effective normative system”. It is the normative question, then, that has been compromised by R v Smith – the modern partial defense of provocation can thus be said to have “shed its justificatory plumage to the extent that it can now be more accurately described as a plea of loss of self control simpliciter”.
It may be argued that the law has both misunderstood the conception of the objective test, and misconstrued its explanation, hereby disabling effective clarification to the jury whose role it is to apply the test. If the aim is to retrieve a workable objective criterion for the determination of the defendant’s moral blameworthiness, and if the law has indeed taken a ‘wrong turning’, it is necessary to point it in the right direction.
C Proposals for Reform: From Abolition to the Model Penal Code
The provocation plea, as it exists today, has given rise to an immense amount of criticism and controversy. This section will look specifically at how the various proposals of reform can provide guidance and pose solutions for the conclusion made in Part B that the law of provocation is indeed ‘over-subjectified’. This part will outline these proposals and decide to what extent they might be useful in reshaping the current law.
Major Proposals of Reform
If the law is to send out a clearer message about why the defense of provocation should allow for a lesser sentence, then it must begin by tackling the underlying moral issue of what we as a society can expect of a defendant. To what extent do we think a person should, as opposed to can, control his impulse to kill? If discontent with the ‘reasonable-man’ test has indeed led to its rejection then how can the law reconstruct itself to limit an endless list of subjective characteristics and reinstall a normative element? The major proposals which argue to either reshape the law, abolish it, or replace it with a different model altogether all deal with the same issue to a certain extent, but add different nuances. Considering such nuances can help reflect the possible options for law reform.
The distorted conception of the provocation defense resulting from the discrepancies in sentencing between murder and manslaughter convictions have resulted in most abolitionists agreeing that the abolition of the defense should only go hand in hand with the abolition of the mandatory life sentence. If the mandatory life sentence would indeed be abolished, then provocation can serve as a mitigating circumstance to be decided upon by the judge rather than the jury. The main merit of abolition- albeit it one that provides no effective solution – lies in the argument that the law has reached a point of no return and fixing something that is permanently disfigured is futile and senseless. Celia Wells takes an even ‘bolder’ approach and argues for the elimination of the defense of provocation regardless of a potential general agreement on the basis of the defense. According to this author, a defense of provocation as a partial excuse for murder sends out the wrong signal, “encouraging and exaggerating a view of human behavior which is sexist, homophobic and racist” – in short, there is not place for such a defense. The idea of a reasonable or ordinary person, she continues, is fictional in the context of a society which consists of a variety of ethnic, cultural, and racial groups. Horder, too, seems to believe that abolition of the defense in its current state is not a bad option; it is one thing to feel anger, he contends, but quite another to “go on to inflict that suffering yourself”. A sane individual who kills another with the requisite intent for murder, it can be argued, ought to be convicted for murder, and nothing less.
This paper contends that inconsistencies and contradictions will remain a part of the law as long as the law is a reflection of societal values. It does not seem right to abolish a defense which likewise reflects society’s views on moral blameworthiness and the compassion for human frailty. The law, as a “living instrument”, has the task to adapt to changing conceptions about provoked killings to which we are willing to “relax our moral inhibitions”. It is not surprising, then, that those consulted by the Law Commission on the question of abolition almost unanimously took the position that the defense should not be abolished, definitely not whilst the mandatory life sentence for murder remained. Abandoning the defense of provocation would not necessarily abandon the underlying issues related to the evaluation of the defendant’s capacity for self-control – if provocation becomes a matter for mitigation, these issues will simply be transferred to a different stage.
The Law Commission’s Proposal: Eliminating the ‘loss of self control’ requirement
In its rejection of the possibility of abolition, the Law Commission’s proposal for reform is an attempt to reconstruct the defense, whilst restoring a normative function to the trial judge. Without going into a detailed discussion of the entire proposal, it is significant to point out exactly how the proposal could remedy the problem of ‘over-subjectivisation’ of the defense. At first glance, it is obvious that this proposal escapes the ‘loss of self control’ dilemma by simply omitting it – yet is it necessary to abolish this subjective element altogether? Getting rid of the ‘loss of self-control’ requirement would indeed “cut provocation loose from any notion that the defense is an excuse founded on the defendant’s reduced culpability arising from a loss of self-control” and places it in a more justificatory realm of the defendant having a ‘justifiable sense of being seriously wronged’. Personal characteristics may still be considered by the jury, but there are significant limitations. To be taken into account, a characteristic may not simply bear on the defendant’s ‘general’ capacity for self-control, and secondly, a judge is not prohibited from withholding a defendant’s characteristic from the jury if he should decide that there is insufficient evidence on which a properly directed and reasonable jury would find that the characteristic is relevant. This, no doubt, seriously limits the inclusion of subjective criteria and in practice, could prove quite effective. In the Australian case of Stingel v R, for example, the trial judge directed the jury not to take into consideration the defendant’s obsessive and possessive character, whereas under s.3 of the Homicide Act of 1957, a judge is not allowed to assume such a role. This would change if the LC’s recommendations were incorporated into a new law. The judge would therefore carry out a normative filtering function which is lacking in English law as it exists today.
Does the elimination of the loss of self control criteria, though, do more good than it does harm? By excluding it as a criterion, the intention is to limit the amount of subjective criteria a defendant can put forth in his plea for provocation, and this might well work. Yet, as Mackay and Mitchell contend, this takes away the basic requirement of a provocation plea as such, turning the defense into a plea of partial justification altogether, the only requirement being that the provocation caused the defendant to have a justifiable sense of being seriously wronged. The LC’s recommended plea, argue the authors, does not require the defendant to be ‘emotionally disturbed’ at the time of the killing. Would this not include those who kill in cool blood as a result of “gross” provocation? Horder is of the opinion that the combination of anger and fear, (as likewise included by the LC’s recommendations), would serve as a sufficient “subjective limiting condition” hereby “ruling out provocation claims founded solely on the gravity of the provocation”, and narrowing the scope of the plea. Killings in cool blood are thus not likely to meet this limiting condition.
Another matter to be raised is whether the concept of ‘a person of ordinary temperament’ not give rise to as much controversy as the ‘reasonable man’ in the long run? Is the concept of a ‘person of ordinary temperament’ “scientifically sound” with regards to the “variations of psychological, psychiatric and biological characteristics”? In short, will the law not eventually seek other holes through which subjective criteria can seep into the ‘person of ordinary temperament’? The answers to such questions can impossibly be anticipated in advance, and it remains to be seen whether Parliamentary Counsel, responsible for the drafting of legislation, will use the Law’s Commission’s recommendations as put forth in its final report.
Making a clear distinction between the ‘normal’ and ‘abnormal’ offender
In order to prevent particular idiosyncratic and discreditable characteristics from being allowed to play a role in the determination of the defendant’s capacity for self-control, several authors have argued that there should be a clear distinction between the ‘normal’ and the ‘abnormal’ defendant, hereby thus reinforcing the distinction between the gravity of the provocation and the capacity of self-control of the defendant. Ashworth contends that where the defendant reaction was caused “predominantly by the provocation”, then the defendant should have a right to a provocation plea. If however, the reaction “stemmed predominantly from some psychological or physical condition affecting (the defendant’s) behavior”, the suitable defense would be diminished responsibility.
If such a distinction cannot be upheld, argues Ashworth, the two separate defences should be abandoned and replaced by a “broader qualified defense” such as ‘Extreme Mental or Emotional Disturbance’ (hereinafter, EMED). It is fair to say that the distinction can definitely not be upheld. There are bound to be a great number or borderline cases, as Ashworth’s use of the word “predominantly” (twice) clearly implies. Controversy would undoubtedly arise as to the classification of a characteristic as normal and abnormal, on top of which ‘abnormal’ characteristics, if themselves the direct subject of the provocation would still have to be taken into account by the jury in assessing the gravity of the provocation to the defendant.
The Model Penal Code’s “Extreme Mental and Emotional Disturbance” Defense
The focal point of this defense is the defendant’s state of mind, whatever the reasons for this state of mind, with no requirement for anyone to do any provoking. As long as the defendant (under the circumstances he believes them to be!) is in a state of extreme mental or emotional distress, his conduct can be excused. And although there is a requirement for a ‘reasonable explanation or excuse’, this refers specifically to the viewpoint of the defendant ‘under the circumstances that he believes them to be’, and not to his conduct. Similar to the House of Lords decision in R v Smith, then, the defendant would be judged on his own standards, and not by an external objective one. Needless to say, it has given rise to a great deal of criticism. This extremely excuse-based defense will not, therefore, remedy the problem of ‘over-subjectivisation’ of the law, but rather enhance the problem. Additionally, it is the opinion of this paper that whilst there are a multitude of emotions that may affect the psyche of an individual as to distort their ability to reason, not all of them should be taken into account with regards to an act of provocation.
The MPC’s ‘EMED’ defense covers more ground than the current provocation defense would, and in doing so, is unlikely to contribute to a more clear, less complex defense of provocation in English law. Allowing ‘disgust’ as an emotion, for example, to offer a ‘reasonable explanation or excuse’ (from a defendant’s point of view!) for a killing is over-extending the borders of acceptable behavior and making it too easy for defendants to use their offensive and unacceptable prejudices or individual hatreds to reduce their sentence to manslaughter. The normative question of the ‘adequacy’ of the reasons for the emotional disturbance remains – if the defendant’s state of mind is unable to undergo any qualification based on an external and objective reason, then the EMED defense, much like the current law on provocation under s. 3 of the Homicide Act 1957, does not provide us with a more justificatory, normative basis which the law so desperately needs.
A “Warranted Excuse”?
The fact that the EMED defense is based on the defendant’s state of mind – regardless of the reasons – has raised an important controversy. A critical question that must be asked is whether or not emotions exclude reasons per se, and should thus be evaluated on their own accord. Nourse criticizes the fact that the MPC’s ‘EMED’ stresses the assumption that the situation, and not the person, is responsible for the distress aroused in the defendant. She argues that emotion, as opposed to the general assumption by liberal theories of defense, does not ‘obscure’ reason; “…emotion is not the enemy of reason but, instead, its embodiment”. Her proposal of a “warranted excuse” defense puts forth the idea that whilst the law should exist to ‘protect’ certain emotions, this protection does not necessarily prohibit us from punishing the deeds arising out of these emotions.
Nourse refutes the traditional conception of the divide between justification and excuse in stating that it has always focused on the act itself- an act that is excused is one that is wrong, and can therefore not be justified. In focusing on the emotion of the defendant, however, Nourse believes “it is perfectly consistent to say that one’s emotions are justified or warranted even when one’s acts are not”. The normative incoherence of the present law, she argues, is due to the fact that the emotions are not objectively qualified. In order to amend the failure of the claims of emotion reflecting relational (“in a position of normative equality vis-à-vis his victim”) norms, a guiding question that must be asked is whether the emotion “reflects a wrong that the law would independently punish”.
We, as a society, are thus asked to warrant emotion only in so far as it is reflected in the law’s mirror. The problem with this is that it is not realistic to suggest that we ‘feel’ according to the lawfulness or unlawfulness of an act, and the justification of an emotion should not be wholly dependant on this. Her argument that infidelity is not prohibited in the law and thus leaves the defendant with nothing to point at in demanding our compassion, is out of tune. Intensity of emotion, especially arising out of ‘intimate relationships’ , are not as rigidly qualified as Nourse would have it. Although it must be mentioned that this author seems to accept the potential contradictions resulting from the evaluation of warranted or justified excuses on the basis of the categorization of lawful/ unlawful acts, her proposal seems to stem from a quite subjective angle.
Although, as a society, we seem to have accepted that provocation may lead us to lose control, the law, as yet, has been unable to draw the line in clearly stating to what extent the defendant is justified in allowing such loss of self-control. The objective criterion of reasonableness has been engulfed by a hoard of subjective characteristics of defendants on which no limit has been placed. Under the current state of the law on provocation in England, especially after R v Smith, placing such a limit has become impossible. In finding itself at a point of no return, recommendations for law reform have been suggested from all kinds of angles. This period of insecurity of the law on provocation offers the perfect opportunity for those with strong convictions about the inadequacy of the current law to come forward and propose recommendations.
The main question that needs to be answered is the how to reshape the partial defense of provocation in such a way as to take into account both the needs of society and justice for the individual. Of the recommendations addressed in this paper, the Law Commission’s proposal seems to have the firmest basis. Restoring the trial judge with a (normative) filtering role will help weed out those claims made by defendants that are extremely particular to them as well as being offensive to standards of ‘appropriate’ behavior as we can rightfully expect there to be. By eliminating the ‘loss of self control’ requirement, the focus shifts to the central emotions of anger and fear, hereby reinstalling the (partially) justificatory notion that the defendant’s act was not completely wrongful because the gravity was so ‘gross’ as to make his feelings of anger and fear result in a ‘justifiable sense of being seriously wronged’. Issues related to the defendant’s capacity to lose self-control are hereby eliminated. The question whether the concept of ‘a person of ordinary temperament’ will give rise to an equal amount of controversies as the ‘reasonable man’ can only be answered in practice. The LC’s proposal seems to include sufficient safeguards for many of the difficulties of the current law to be dealt with, however, and could very well be a ‘right turning’.
a) elements of excuse in provocation:
one way of enquiring whether provocation should be regarded as negativing the fault element is to ask whether it excludes either mens rea or voluntariness. It is generally assumed that loss of self-control does not negative intention, although in principle it would be possible for a person in a blind rage to be unaware of what he or she was doing. Might loss of self-control negative voluntariness? Since unconscious behaviour is not an issue here, the question is whether behaviour during loss of self-control is uncontrollable rather than simply uncontrolled. The doctrine of provocation in murder does not require total loss of self-control; but, again, it is not difficult to conceive of conditions of extreme rage in which a person would find it virtually impossible to control his actions. Provocation may therefore be one of those areas in which the elements of choice and control are significantly reduced: they might be regarded as cases of moral non-voluntariness, although whether more or less so than duress cases may be difficult to state.
Probably there is enough in the argument that loss of self-control may occasionally negative mens rea or voluntariness to suggest that its claim to be treated as a complete defence should be considered seriously. However, as with intoxication, it might be decided on a principle of welfare that citizens have a duty to learn to control their passions and tempers to the extent of not inflicting criminal harms, and thus the law might adopt the view that loss of self-control should never be allowed to negative the fault requirements for an offence. This would be a strong policy, presumably exempting only the mentally disordered, and not those who have abnormal difficulty in controlling themselves. Indeed, in English law the policy seems to be stronger than that in intoxication cases, since intoxication is allowed as a defence to the wider category of specific intent crimes, whereas provocation is currently a defence to murder only. Is there not a case, based on fairness to individual defendants, for arguing that extreme loss of self-control should be capable of acting as a defence to crimes of specific intent, at least? Would not the response to this argument be based on practicalities, such as the dangers of making trials even more complex, rather than principle?
b) Elements of justification in provocation:
There are cases in which D pleads provocation on a charge of murdering a bullying father or husband and receives so light a sentence as to suggest that the court regards the killing as not far short of justifiable. Indeed, it has been argued that in some cases where women kill a spouse or partner who has battered them, the elements of self-defence may be made out. This requires some reinterpretation of the existing law, viewing the woman’s conduct as an understandable and reasonable reaction to a situation in which she believes there is no realistic alternative. Even if few cases could be brought convincingly within self-defence, the comparison is sufficiently plausible to serve to raise questions about possible elements of justification in provocation cases. The objective condition in the provocation defence to murder is whether the provocation was enough to cause a reasonable person to lose self-control. The element of reasonableness may be discerned in the paradigm of provocation as a wrongful act towards D. thus Aristotle argued that anger is a socially respectable emotion which may, within limits, be a proper response to certain behaviour by others. It is therefore necessary to consider both D’s feelings and their moral basis: the principle is that culpability is reduced where D acts in anger towards the victim, and has good reason for being angry by virtue of some apparent wrong or impropriety suffered at the victim’s hands.
Even at its strongest, this argument is insufficient to establish that provocation should be a complete justification. It is one thing to state that the victim asked for it by what he or she did; it is quite another thing to suppose that the victim asked to die. It may have been morally appropriate for D to feel outraged and angry, but it is morally inappropriate for D to lost control to such a degree as to kill V. the element of wrongdoing by the victim might therefore be combined with the excusatory element of loss of self-control to provide grounds for a partial defence. The point now is not merely that D lost control at the time of the offence, but that D was understandably and with some justification provoked to lose self-control at the time of the offence. Is there an analogy here with duress and necessity as defences? It is certainly true that duress, though predominantly an excuse, contains elements of justification.
We might recognize that such control is abnormally difficult in certain extreme situations by allowing a circumscribed defence of provocation to reduce the grade of offences ( murder to manslaughter; but why not also causing serious injury with intent to causing serious injury recklessly?), but still maintain the general social proposition that citizens who are not mentally disordered can be expected to control their tempers. On this reasoning the emotional difficulties which people encounter in provocative circumstances are not so strong as to suggest that fairness demands no criminal liability at all.
1) the subjective requirement: the first requirement of the qualified defence of provocation is predominantly subjective-evidence that D was provoked to lose self control and kill. This requirement contributes to the excusing element in the provocation doctrine, the idea being that a person who has lost self-control is less responsible for subsequent conduct. Without this element, there would be no way of excluding planned revenge killings, and the argument is that they should be excluded from the defence because a person who coolly plans a response to an affront or a wrong ought to ensure that the response conforms with the law. The genuinely provoked killer, on the other hand, is in such a disturbed state of mind that such calculation does not occur.
In Duffy (1949), the Court of Appeal confirmed that the defence of provocation was unavailable; this was a planned attack and not a case in which it could be said that D had been provoked to lose self-control by the acts of the deceased, not least because they crept up on the victim when he was asleep.
Distinguishable from Ibrams are the many cases where cumulative provocation has been directed towards D over a period of time, and then some minor act sparks off the loss of self-control and killing. In cases of this kind the last act of the provoker, even though minor in itself, may be placed in the context of the previous provocation in order to explain the loss of self-control. Whether in these cases the loss of self-control needs to be sudden has been questioned in a number of appeals, but with little success. In Ahluwalia (1993), Lord Taylor CJ accepted that the length of time between the provocation and the killing was a relevant but not a determinative factor. He concluded, somewhat ambiguously, that the subjective requirement in provocation would not as a matter of law be negatived simply because of a delayed reaction in such cases, provided that there was at the time of the killing a sudden and temporary loss of self-control caused by the alleged provocation. When his Lordship returned to the question in Thornton (No 2) he reiterated the test of sudden and temporary loss of self-control, although he acknowledged that evidence that D was suffering from battered woman syndrome would be relevant to show that an apparently minor incident might trigger a major loss of control. However, some decisions are difficult to reconcile with the sudden and temporary test: in Pearson (1992) the Court of Appeal allowed the qualified defence of provocation in a case where D took a sledgehammer, asked his brother to switch the light on, and then bludgeoned their sleeping father to death. The trial judge’s direction to the jury to take account of the father’s violent bullying over the preceding years was not questioned, even though there was not final act.
The development of the law relating to the subjective requirement is most unsatisfactory. First, the idea that loss of self-control must be sudden arrived in Duffy without support from the precedents, and perhaps its proponents seem unaware that it is not the only alternative to reduing all revenge killings to manslaughter. Secondly, some judges plainly do not accept the suddenness test, as Pearson and many sentencing cases demonstrate. Thirdly, the suddenness test is objectionable in principle because it favours those with quick tempers over others with a slow-burning temperament (but no less intensity of emotion), it favours those with physical strength, and it often favours men over women. It is one thing to exclude cases like Ibrams from the defence-not merely was there a gap of some five days between provocation and killing, but there was evidence of planning and premeditation; it is another thing to exclude defendants with slow-burning temperaments, who do not react straight away to an insult or wrong, but go away and then react after minutes or even hours of festering anger. Why should a court be prevented from hearing and acting on evidence that, despite the lapse of a few hours, a defendant’s temperament was such that it is fair to say that he or she was provoked to lose self-control, and that it was not calculated revenge?
ii) The objective Condition: Once the court is satisfied that there is evidence that D was provoked to lose self-control, it must go on to consider the second requirement: was the provocation enough to make a reasonable man do as D did? This is English law’s rather clumsy attempt to reflect the element of partial justification in the doctrine of provocation. The clumsiness is evident in the standard of the reasonable man, an anthropomorphic (and male) standard which might be taken to suggest a paragon of virtue of it were not for the context of partially exculpating a killing by such a person. They underlying point is that it is not every act of provocation which should be allowed as the basis of this qualified defence, but only those serious enough to unbalance the behabiour of a person with reasonable self-control.
There appears to be no time-limit on the matters to be considered, so that not only the final act but a whole course of conduct may be taken into account : Burke. This should ensure that those cases of cumulative provocation that satisfy the subjective requirement are seen and judged in their proper context.
How has the reasonable man test been interpreted by the Courts? In Bedder v. DPP (1954), the House of Lords held that the jury should consider the effect of these acts on a reasonable man, without regard to the sexual impotence.
It is no less illogical to ask a jury to consider the effect of taunts of impotence on a reasonable person who is not impotent, and the Bedder approach was overruled by the House of Lords in DPP v. Camplin(1978). A court should consider the effect of the provocation on a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him.
This test demonstrates that the illogicality alleged in Bedder does not exist: some characteristics of each individual defendant must be considered by the jury in assessing the gravity of the provocation, but the level of self-control must be kept fairly constant. In fact the standard of self-control was probably lowered in Camplin itself, since D was only 15 years old and the House of Lords held that the standard of a reasonable boy of 15 was appropriate. In Newell (1980) the Court of Appeal developed the Camplin test in two ways, purporting to follow New Zealand law on the point. The Court cited extensively from McGregor. First, it held that only permanent characteristics such as race, ethnic origin, disability, and, probably, religion may be taken into account, whereas transient conditions such as intoxication and exhaustion may not. Secondly, it held that for a characteristic to be relevant the provocation must have been aimed at it. Both requirements must now be viewed with some doubt. The second has been abandoned in New Zealand: McCarthy. The first was criticized as overly strict by Lord Goff in Morhall (1996). In that case D, a glue-sniffing addict, was taunted about his glue-sniffing by the victim, whom D subsequently stabbed. The House of Lords disagreed, and held that a jury should be directed to take account of any matter relevant to an assessment of the strength of the provocation.
The High Court of Australia has taken the view that the standard of self-control should be lowered for the young, but not for women or for members of ethnic minorities, and this seems right. Masciantonio.
A related and controversial question is whether a mental condition or personality disturbance that affects D’s capacity for self-control may be taken into account, and again the answer-in strict logical terms-must be in the negative. Thus in Luc Thiet-Thuan v. R (1997) the Privy Council held that the objective requirement should not be lowered in the case of a man who had suffered brain damage that impaired his capacity for self-control. Now this may appear harsh, not least because it was argued earlier that there should always be a capacity exception for those incapable of attaining the standard normally required.
Thus in Raven (1982), the Court held that account should have been taken of the fact that D was a man of 22 with a mental age of 9-clearly a lowering of the expected standard of self-control. In Ahluwalia (1993) the question of the relevance of battered woman syndrome was raised. No such evidence had been adduced at the trial, but Lord Taylor CJ commented that, if it had been, different considerations may have applied.
The essence of the provocation doctrine is that the defendant should be partly excused because there was some justification for the anger and loss of self-control that led to the killing. If there was insufficient justification, and the cause of the uncontrolled killing lay in some psychological condition of the defendant, then the appropriate qualified defence is diminished responsibility. The distinction between the two ought logically to be based on causal grounds. Where D’s reaction was caused predominantly by the provocation, the defence should be provocation. Where the reaction stemmed predominantly from some psychological or physical condition affecting D’s behaviour, the defence should be diminished responsibility. That is the proper distinction. If it really is unworkable-and further evidence on that point is needed-we ought to be thinking, not of diluting the provocation doctrine so as to include some cases of diminished responsibility (as Smith implies), but of abandoning these separate defences in favour of abroader qualified defence such as extreme mental or emotional disturbance’
If the division between provocation and diminished responsibility were to be logical, as just suggested, would this not amount to unfair labeling? Many women defendants would inevitably be labeled mentally abnormal, and there would be no legal recognition that a response to repeated violent abuse was to any degree understandable or reasonable. How strong is the case against this tendency to medicalize women defendants? The contention is that the existing law of provocation is biased towards men, being founded on the idea of a swift, violent response to a supposed insult. There is no recognition of the long periods of violence and abuse suffered by many of the women who become defendants, no recognition of their relative powerlessness compared with men, and no recognition of the countervailing impulses often felt by women to keep a family together. On this view, references to patholocial conditions such as battered woman syndrome should be rare, and instead the focus should be on the reactions of ordinary people who are confronted with extraordinary and extreme circumstances. The law should take account of the extreme circumstances, through a test such as that of a reasonable person in the shoes of the defendant, having suffered the same level of violence and abuse.
Others have gone further and have proposed that some battered women should be able to rely on self-defence to secure a complete acquittal. Thus Aileen McColgan argues that there may be cases in which a battered woman should not call evidence of battered woman syndrome but should rather construct a case out of her fear of imminent serious injury, the fact that she was in her home and therefore should not be expected to retreat, and the right of pre-emptive strike. To succeed on self-defence would require the courts to re-think their concept of imminent harm and to adapt the notion of reasonableness of response so as to take account of both the history of violent abuse and the reasonableness of belief that there will be further and unavoidable attacks. The Supreme Court of Canada has shown a willingness to move in this direction, and for some defendants this would be a fair outcome. Lavallee v. R. it is not an approach that commends itself to all those who regard the law of provocation as flawed by gender bias. The question of appropriate responses to crimes of passion remains, and Victoria Nourse has argued that we should accept that the boundaries of the qualified defence ought to be set by normative judgements about when we should, and when we should not, reduce the grade of the killing. Her preferred notion of warranted excuse would broaden the emotional basis of the qualified defence (by removing any need to show sudden loss of self-control), and yet would sharpen its normative demands by directing courts to consider the extent to which the emotional state was warranted or justified-thereby excluding from the defnce those such as the racist, the paedophile, and the male who expects female servility.
Provocation is a defence only to murder: Bruzas. If the defence is successful then the defendant is still guilty of manslaughter. For other offences, such as assaults, the fact that the defendant was provoked into attacking the victim may be relevant in deciding the appropriate sentence, but it does not provide a defence. Even in a case of homicide it is crucial to appreciate that provocation should be considered only if the jury are sure that the defendant is otherwise guilty of murder. If there is evidence from the facts of the case that the defendant was provoked then the prosecution carries the burden of proving that the defence is not made out beyond all reasonable doubt. Cascoe.
Although provocation is a common law partial defence, its operation is governed by section 3 of the 1957 Homicide Act. There are two limbs to the defence:
1) the defendant must show that he or she was provoked to lose his or her self-control and kill by something said or done; and that
2) a reasonable person would have been provoked to lose his or her self-control and do as the defendant did.
It is important to appreciate that both of these requirements must be satisfied. If an unusually calm defendant facing substantial provocation did not in fact lose his self-control, even though a reasonable person would have done, the defence is not available.
The two limbs of the provocation defence need to be discussed in more detail.
- The defendant was provoked to lose his self-control and kill:
The need to show that the defendant was provoked to lose his self-control is a subjective question. That is it requires the jury to look into the mind of the defendant and ask whether the defendant actually lost his self-control, rather than considering whether a reasonable person would have lost his self-control. The issue is not straight-forward and there are a number of matters which need to be addressed:
The defendant must be provoked:
It is not enough for the defendant just to show he lost his self-control. He must show he was provoked by something into losing his self-control: Acott.
The provocative trigger must be something said or done:
It must be shown that the provocative trigger was something said or done. Words or deeds can amount to provocation, but circumstances on their own cannot. Acott. In Doughty, it was assumed that the crying of a baby could constitute a provocative act: it was something said or done.
The defendant must lose his or her self-control:
The Court of Appeal in Richens stressed that it is not necessary to show that there was a complete loss of self-control, in the sense that the defendant did not know what he was doing, or was not able to stop himself acting in the way he did. It was sufficient that the defendant was unable to restrain himself.
The defendant must suffer a sudden and temporary loss of self-control:
The courts have insisted that provocation should not provide a defence to a defendant who was acting out of a desire for revenge. This concern was expressed by Devlin J in Duffy.
The basis of the requirement that the defendant has suffered a sudden and temporary loss of self-control is that if there is a gap in time between the provocation and the killing then the law will assume that the defendant killed in anger, not in the heat of passion having lost self-control. This has in recent years come under challenge, particularly in cases involving battered women, where the courts have heard evidence that battered women may suffer a slow burn reaction. This means that they may be provoked, but the anger builds up slowly until suddently there is an outburst, may be some time after the provoking incident. This led to a reconsideration of the requirement of a sudden and temporary loss of self-control in the following case: R v. Ahluwalia (1992) Ahluwalia had suffered many years of violence and abuse from her husband. This included an attempt to kill her. One evening the husband threatened to attack her. That night, while he was asleep A poured petrol over him and set it alight. The husband died from the burns he received.
As the Court of Appeal in Ahluwalia made clear, the present law is that while it is still necessary to show that the defendant suffered a loss of self-control as a result of a provocation, the fact that there is a gap in time does not preclude the availability of the defence. It is simply that the longer the time between the provocative incident and the killing the harder it will be to show that there was a sudden and temporary loss of self-control and that this was caused by the provocative incident. Pearson.
The provocation can be self-induced:
In Johnson the Court of Appeal stressed that even if the provocative acts were self-induced the defendant could still seek to use provocation. But it would be up to the jury to decide whether a reasonable person would react to that provocation in the way that the defendant did. In fact, it would be rare that a jury would decide that a reasonable person would respond to a self-induced provocation by killing.
Would a reasonable person have acted as the Defendant did?
This objective limb of the test has proved problematic for the law and a number of issues have to be addressed.
The jury should consider how the reasonable person would react to the provocation as it was understood by the defendant. If a defendant mishears what was said or misinterprets what was done and believes he has been insulted, he is to be judged on the insult he believed was made, not the words actually used or deeds actually done. There is little case law on this, but the little there is suggests that even if a defendant is unreasonable in his misinterpretation he is still to be judged on the facts as he believed them to be.Brown.
What characteristics are attached to the reasonable person?
A particularly troublesome issue for the courts has been whether the reasonable person should be endowed with any characteristics of the defendant. Before looking at the present law it is useful to consider why the law does not take the easy approach of just considering how a straightforward normal perso