1. Introduction:
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.
2. Tests:
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.
3. The defendant was provoked to lose his self-control and kill:
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 match 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. The issue is not straight-forward and there are a number of matters which need to be addressed:
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.
4. 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 in Duffy, 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.
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.
There are 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 restated 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 hammered 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 reducing 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 favors those with quick tempers over others with a slow-burning temperament, it favors those with physical strength, and it often favors 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?
5. Would a reasonable person have acted as the Defendant did?
This is objective Condition. Once the court is satisfied with the first element, 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 model of virtue of it were not for the context of partially exculpating a killing by such a person.
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.
a. Examining the Objective Criterion: Criticism and Discontent
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: an anthropomorphic being who functions as the person the law “expects everyone to be”. Lord Hoffman in R.v .Smith.
6. What characteristics are attached to the reasonable person?
A particularly troublesome issue for the courts has been whether the reasonable person should be artistic with any characteristics of the defendant. In Bedder v. DPP, the House of Lords explained that the jury should consider how a reasonable man would react to the taunts, and that the reasonable man would not be regarded as impotent. Subsequently it has been accepted that this makes little sense, and that the decision is therefore wrong. The Bedder approach was overruled by the House of Lords in DPP v. Camplin (1978).
7. ‘Subjectivising’ the Objective Element:
The logical consequence of the general unhappiness of the objective test was the law’s compromise to subdue such dissatisfaction 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.
8. 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 R v.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 R v. Humphreys, the jury was allowed to consider the accused’s ‘attention seeking and immaturity’. In R v. 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” R v. Morhall. 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 characters 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’ R v Smith – 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’.
9. 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 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 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’, Lord Millet in R v Smith, it is necessary to point it in the right direction.
10. Battered woman Syndrome:
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 behavior, 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, but of abandoning these separate defences in favor of a broader 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 pathological 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 judgments 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 defence those such as the racist, the paedophile, and the male who expects female servility.
11. 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. The shift to a very excuse-based plea of provocation is apparent in the case law as discussed below in Part B.
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 behavior is not an issue here, the question is whether behavior 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 distinguished 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 behavior 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 restricted defence of provocation to reduce the grade of offences ( murder to manslaughter), 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.
12. 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 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.
a. 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.
13. Concluding Remarks
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’.