Provocation in English law
Encyclopedia
In English law
, provocation was a mitigatory defence
alleging a total loss of control as a response to another's provocative conduct sufficient to convert what would otherwise have been murder
into manslaughter
. It does not apply to any other offence. It was abolished on 4 October 2010 by section 56(1) of the Coroners and Justice Act 2009
.http://news.bbc.co.uk/1/hi/uk_politics/7762405.stm but replaced by a very similar defence of "loss of control".
:
The initial burden is on the defence to raise sufficient evidence of provocation. As a matter of law, the judge
will then decide whether to leave the defence to the jury
. This does not change the burden of proof which, as in all criminal cases, is on the prosecution to prove the actus reus and mens rea of the offence charged, i.e. murder. The Act changed the common law
, under which provocation had to fall under one of the following expectations:
The Act provided that provocation can be by anything done or said without it having to be an illegal act and the provoker and the deceased can be a third parties (see Davies (1975) QB 691). If the accused was provoked, who provoked him is irrelevant.
Please note that this section of the Act was repealed on 4 October 2010. It was superseded by sections 54 to 56 of the Coroners and Justice Act 2009
when they came into force on the same date.http://www.justice.gov.uk/publications/docs/coroners-justice-act-implementation-10.pdf
Under normal circumstances, the response to the provocation will be almost immediate retaliation. If there is a "cooling-off" period, the court will find that the accused should have regained control, making all subsequent actions intentional and therefore murder. In R v Ibrams & Gregory (1981) 74 Cr. App. R. 154 the defendants had been terrorised and bullied by the deceased over a period of time so devised a plan to attack him. There was no evidence of a sudden and temporary loss of self-control as required by Duffy. Even the period of time to fetch a weapon should be sufficient to cool off. In R v Thornton (1992) 1 AER 306 a woman suffering from "battered woman syndrome
" went to the kitchen, took and sharpened a carving knife, and returned to stab her husband. The appeal referred to s3 which requires the jury to have regard to "everything both said and done according to the effect which in their opinion it would have on a reasonable man". The appellant argued that instead of considering the final provocation, the jury should have considered the events over the years leading up to the killing. Beldam LJ. rejected this, saying:
But in R v Thornton
(No 2) (1996) 2 AER 1023 after considering new medical evidence, a retrial was ordered and the defendant was convicted of manslaughter on the ground of diminished responsibility
. Similarly, in R v Ahluwalia (1992) 4 AER 889 a retrial was ordered. The defendant had poured petrol over her husband and set it alight, causing burns from which he died. When the defence of diminished responsibility on the ground of "battered woman syndrome" was put, she was convicted of manslaughter. In R v Humphreys (1995) 4 AER 1008, the defendant finally lost self-control after years of abuse and stabbed her partner. She pleaded that the final words had been the straw that broke the camel's back. The conviction for murder was held unsafe because the accused's psychiatric condition stemming from the abuse should have been attributed to the reasonable person
when the jury considered the application of the objective test.
It was held in Camplin (1978) AC 705 (HL) that the accused's age and sex can be attributed to the reasonable man when the jury consider the defendant's power of self-control. Further, that ANY characteristic of the accused can be included which the jury consider may affect the gravity of the provocation.
Therefore the reasonable person should be endowed with the particular characteristics of the accused. In a number of leading cases, Morhall (1995) 3 AER 659 (HL), and Luc Thiet Thuan v R (1997) AC 131 (PC) it was held that the judge should direct the jury to consider whether an ordinary person with ordinary powers of self-control would have reacted to the provocation as the defendant did and that no allowance should be given for any characteristics that might have made him or her more volatile than the ordinary person. These decisions acknowledged, however, that, in addition to age and sex, characteristics which affected the gravity of the provocation to the defendant should be taken into account. In R v Smith (2000) 4 AER 289 the defendant was charged with murder and relied on the defence of provocation, alleging that he had been suffering from serious clinical depression
and had been so provoked by the deceased as to lose his self-control. Lord Hoffman held that the test was whether the jury thought that the,
Furthermore, the House held, by a majority, that no distinction should be drawn, when attributing characteristics for the purposes of the objective part of the test imposed by s3 Homicide Act, between their relevance to the gravity of the provocation to a reasonable man and his reaction to it. Account could be taken of a relevant characteristic in relation to the accused’s power of self-control, whether or not the characteristic was the object of the provocation. But in AG for Jersey v Holley (2005) 3 AER 371 the Privy Council regarded Smith as wrongly decided, interpreting the Act as setting a purely objective standard. Thus, although the accused's characteristics were to be taken into account when assessing the gravity of the provocation, the standard of self-control to be expected was invariable except for the accused's age and sex. The defendant and the deceased both suffered from chronic alcoholism
and had a violent and abusive relationship. The evidence was that the deceased was drunk and taunted him by telling him that she had had sex with another man. The defendant then struck the deceased with an axe which was an accident of availability. Psychiatric evidence was that his consumption of alcohol was involuntary and that he suffered from a number of other psychiatric conditions which, independently of the effects of the alcohol, might have caused the loss of self-control and induced him to kill. Lord Nicholls said:
In R v Faqir Mohammed (2005) EWCA Crim 1880 a cultured Asian man caught a young man leaving his daughter's bedroom window. He immediately killed his daughter by repeatedly stabbing her with a knife. Following the death of his wife five years earlier he suffered from depression, and there was credible evidence that he had a violent temperament and had repeatedly been violent towards his daughters and his wife. Despite the fact that a Privy Council
ratio decidendi
is only persuasive authority, the Court of Appeal applied it and reinstated the law before Smith. Scott Baker LJ. said:
In R v James (2006) EWCA Crim 14 the court again considered the relationship between the Privy Council decision in Holley and Smith. In his commentary on Holley, Ashworth (2005) said:
Viewing this situation as exceptional, Phillips CJ. accepted that the Privy Council decision had indeed overruled the House of Lords, recognising the error that the Lords had made in their earlier interpretation of the law. Rather than follow the strict rules of precedent and send the issue back to the Lords for clarification, the Court of Appeal accepted the de facto situation and recognised Holley as the binding precedent.
er could not rely on the predictable results of his demands for money when his victim attacked him (a policy decision to prevent a criminal from relying on his own wrongdoing as the cause of the subsequent death). In R v Johnson (1989) 2 AER 839, the defendant had become involved in an escalating argument with the deceased and his female companion. When the victim threatened the defendant with a beer glass, the defendant fatally stabbed him with a knife. The judge held that the threatening situation had been self-induced. The Court of Appeal held that section 3 of the Homicide Act 1957 provides that anything can amount to provocation, and there is no reason to exclude responsive actions provoked by the defendant. A conviction of manslaughter was substituted.
. The guideline confirms that a conviction must almost always result in a custodial sentence and that the degree and extent of the provocation must be balanced against the offender's response when determining the appropriate sentence. The more the evidence demonstrates an unpremeditated quality to events, the more the sentence may be mitigated. In this, exposure to long-term abuse has an equivocal quality because the immediate "straw" only assumes significance given the context and the response may have greater qualities of revenge. However, factual scenarios involving attacks made in a family context, attempts to conceal evidence (including concealment of the body), etc. will aggravate the sentence.
English law
English law is the legal system of England and Wales, and is the basis of common law legal systems used in most Commonwealth countries and the United States except Louisiana...
, provocation was a mitigatory defence
Defense (legal)
In civil proceedings and criminal prosecutions under the common law, a defendant may raise a defense in an attempt to avoid criminal or civil liability...
alleging a total loss of control as a response to another's provocative conduct sufficient to convert what would otherwise have been murder
Murder in English law
Murder is an offence under the common law of England and Wales. It is considered the most serious form of homicide, in which one person kills another either intending to cause death or intending to cause serious injury .-Actus reus:The definition of the actus reus Murder is an offence under the...
into manslaughter
Manslaughter in English law
In the English law of homicide, manslaughter is a less serious offence than murder, the differential being between levels of fault based on the mens rea . In England and Wales, the usual practice is to prefer a charge of murder, with the judge or defence able to introduce manslaughter as an option...
. It does not apply to any other offence. It was abolished on 4 October 2010 by section 56(1) of the Coroners and Justice Act 2009
Coroners and Justice Act 2009
-External links:*, as amended from the National Archives.*, as originally enacted from the National Archives.* to the Coroners and Justice Act 2009....
.http://news.bbc.co.uk/1/hi/uk_politics/7762405.stm but replaced by a very similar defence of "loss of control".
The principles
Under section 3 of the Homicide Act 1957Homicide Act 1957
The Homicide Act 1957 is an Act of the Parliament of the United Kingdom. It was enacted as a partial reform of the common law offence of murder in English law by abolishing the doctrine of constructive malice , reforming the partial defence of provocation, and by introducing the partial defences...
:
- Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.
The initial burden is on the defence to raise sufficient evidence of provocation. As a matter of law, the judge
Judge
A judge is a person who presides over court proceedings, either alone or as part of a panel of judges. The powers, functions, method of appointment, discipline, and training of judges vary widely across different jurisdictions. The judge is supposed to conduct the trial impartially and in an open...
will then decide whether to leave the defence to the jury
Jury
A jury is a sworn body of people convened to render an impartial verdict officially submitted to them by a court, or to set a penalty or judgment. Modern juries tend to be found in courts to ascertain the guilt, or lack thereof, in a crime. In Anglophone jurisdictions, the verdict may be guilty,...
. This does not change the burden of proof which, as in all criminal cases, is on the prosecution to prove the actus reus and mens rea of the offence charged, i.e. murder. The Act changed the common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
, under which provocation had to fall under one of the following expectations:
- a grossly insulting assault
- witnessing an attack on a relative
- witnessing an Englishman being unlawfully deprived of his liberty
- a husband discovering his wife in the act of adulteryAdulteryAdultery is sexual infidelity to one's spouse, and is a form of extramarital sex. It originally referred only to sex between a woman who was married and a person other than her spouse. Even in cases of separation from one's spouse, an extramarital affair is still considered adultery.Adultery is...
; and - a father discovering someone committing sodomySodomySodomy is an anal or other copulation-like act, especially between male persons or between a man and animal, and one who practices sodomy is a "sodomite"...
on his son (per Holmes v DPP (1946) AC 588).
The Act provided that provocation can be by anything done or said without it having to be an illegal act and the provoker and the deceased can be a third parties (see Davies (1975) QB 691). If the accused was provoked, who provoked him is irrelevant.
Please note that this section of the Act was repealed on 4 October 2010. It was superseded by sections 54 to 56 of the Coroners and Justice Act 2009
Coroners and Justice Act 2009
-External links:*, as amended from the National Archives.*, as originally enacted from the National Archives.* to the Coroners and Justice Act 2009....
when they came into force on the same date.http://www.justice.gov.uk/publications/docs/coroners-justice-act-implementation-10.pdf
The factual limb
This is a subjective test and a pure question of fact, i.e. the evidence must show that the defendant actually lost his self-control. In R v Duffy (1949) 1 AER 932, Devlin J. said that- Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.
Under normal circumstances, the response to the provocation will be almost immediate retaliation. If there is a "cooling-off" period, the court will find that the accused should have regained control, making all subsequent actions intentional and therefore murder. In R v Ibrams & Gregory (1981) 74 Cr. App. R. 154 the defendants had been terrorised and bullied by the deceased over a period of time so devised a plan to attack him. There was no evidence of a sudden and temporary loss of self-control as required by Duffy. Even the period of time to fetch a weapon should be sufficient to cool off. In R v Thornton (1992) 1 AER 306 a woman suffering from "battered woman syndrome
Battered woman defence
The battered woman defense is a defense used in court that the person accused of an assault / murder was suffering from battered person syndrome at the material time. Because the defense is most commonly used by women, it is usually characterised in court as battered woman syndrome or battered wife...
" went to the kitchen, took and sharpened a carving knife, and returned to stab her husband. The appeal referred to s3 which requires the jury to have regard to "everything both said and done according to the effect which in their opinion it would have on a reasonable man". The appellant argued that instead of considering the final provocation, the jury should have considered the events over the years leading up to the killing. Beldam LJ. rejected this, saying:
- In every such case the question for the jury is whether at the moment the fatal blow was struck the accused had been deprived for that moment of the self-control which previously he or she had been able to exercise.
But in R v Thornton
Sara Thornton case
The Sara Thornton case concerns that of British woman Sara Thornton who was sentenced to life imprisonment after being convicted of the 1989 murder of her violent and alcoholic husband. Thornton never denied the killing, but claimed it had been an accident during a row...
(No 2) (1996) 2 AER 1023 after considering new medical evidence, a retrial was ordered and the defendant was convicted of manslaughter on the ground of diminished responsibility
Diminished responsibility in English law
In English law, diminished responsibility is one of the partial defences that reduce the offence from murder to manslaughter if successful . This allows the judge sentencing discretion, e.g. to impose a hospital order under section 37 Mental Health Act 1983 to ensure treatment rather than...
. Similarly, in R v Ahluwalia (1992) 4 AER 889 a retrial was ordered. The defendant had poured petrol over her husband and set it alight, causing burns from which he died. When the defence of diminished responsibility on the ground of "battered woman syndrome" was put, she was convicted of manslaughter. In R v Humphreys (1995) 4 AER 1008, the defendant finally lost self-control after years of abuse and stabbed her partner. She pleaded that the final words had been the straw that broke the camel's back. The conviction for murder was held unsafe because the accused's psychiatric condition stemming from the abuse should have been attributed to the reasonable person
Reasonable person
The reasonable person is a legal fiction of the common law that represents an objective standard against which any individual's conduct can be measured...
when the jury considered the application of the objective test.
The reasonable person test
If the jury is satisfied that the defendant was provoked, the test is whether a reasonable person would have acted as the defendant did - an objective test.It was held in Camplin (1978) AC 705 (HL) that the accused's age and sex can be attributed to the reasonable man when the jury consider the defendant's power of self-control. Further, that ANY characteristic of the accused can be included which the jury consider may affect the gravity of the provocation.
Therefore the reasonable person should be endowed with the particular characteristics of the accused. In a number of leading cases, Morhall (1995) 3 AER 659 (HL), and Luc Thiet Thuan v R (1997) AC 131 (PC) it was held that the judge should direct the jury to consider whether an ordinary person with ordinary powers of self-control would have reacted to the provocation as the defendant did and that no allowance should be given for any characteristics that might have made him or her more volatile than the ordinary person. These decisions acknowledged, however, that, in addition to age and sex, characteristics which affected the gravity of the provocation to the defendant should be taken into account. In R v Smith (2000) 4 AER 289 the defendant was charged with murder and relied on the defence of provocation, alleging that he had been suffering from serious clinical depression
Clinical depression
Major depressive disorder is a mental disorder characterized by an all-encompassing low mood accompanied by low self-esteem, and by loss of interest or pleasure in normally enjoyable activities...
and had been so provoked by the deceased as to lose his self-control. Lord Hoffman held that the test was whether the jury thought that the,
- circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter.
Furthermore, the House held, by a majority, that no distinction should be drawn, when attributing characteristics for the purposes of the objective part of the test imposed by s3 Homicide Act, between their relevance to the gravity of the provocation to a reasonable man and his reaction to it. Account could be taken of a relevant characteristic in relation to the accused’s power of self-control, whether or not the characteristic was the object of the provocation. But in AG for Jersey v Holley (2005) 3 AER 371 the Privy Council regarded Smith as wrongly decided, interpreting the Act as setting a purely objective standard. Thus, although the accused's characteristics were to be taken into account when assessing the gravity of the provocation, the standard of self-control to be expected was invariable except for the accused's age and sex. The defendant and the deceased both suffered from chronic alcoholism
Alcoholism
Alcoholism is a broad term for problems with alcohol, and is generally used to mean compulsive and uncontrolled consumption of alcoholic beverages, usually to the detriment of the drinker's health, personal relationships, and social standing...
and had a violent and abusive relationship. The evidence was that the deceased was drunk and taunted him by telling him that she had had sex with another man. The defendant then struck the deceased with an axe which was an accident of availability. Psychiatric evidence was that his consumption of alcohol was involuntary and that he suffered from a number of other psychiatric conditions which, independently of the effects of the alcohol, might have caused the loss of self-control and induced him to kill. Lord Nicholls said:
- Whether the provocative acts or words and the defendant's response met the 'ordinary person' standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self control was sufficient excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant's conduct is 'excusable'.
In R v Faqir Mohammed (2005) EWCA Crim 1880 a cultured Asian man caught a young man leaving his daughter's bedroom window. He immediately killed his daughter by repeatedly stabbing her with a knife. Following the death of his wife five years earlier he suffered from depression, and there was credible evidence that he had a violent temperament and had repeatedly been violent towards his daughters and his wife. Despite the fact that a Privy Council
Privy council
A privy council is a body that advises the head of state of a nation, typically, but not always, in the context of a monarchic government. The word "privy" means "private" or "secret"; thus, a privy council was originally a committee of the monarch's closest advisors to give confidential advice on...
ratio decidendi
Ratio decidendi
Ratio decidendi is a Latin phrase meaning "the reason" or "the rationale for the decision." The ratio decidendi is "[t]he point in a case which determines the judgment" or "the principle which the case establishes."...
is only persuasive authority, the Court of Appeal applied it and reinstated the law before Smith. Scott Baker LJ. said:
- Properly directed, the jury should therefore have applied a narrow and strict test of a man with ordinary powers of self-control rather than the wider test of excusability that was put to them by the judge. The jury having convicted on the basis of the wider test, we cannot see any unsafety in the conviction. The same result would have been inevitable if the provocation direction had been on the basis of Holley.
In R v James (2006) EWCA Crim 14 the court again considered the relationship between the Privy Council decision in Holley and Smith. In his commentary on Holley, Ashworth (2005) said:
- "Is Holley binding on English courts? There may be a purist strain of argument to the effect that it is not, since it concerns another legal system (that of Jersey). However, the reality is that nine Lords of Appeal in Ordinary sat in this case, and that for practical purposes it was intended to be equivalent of a sitting of the House of Lords."
Viewing this situation as exceptional, Phillips CJ. accepted that the Privy Council decision had indeed overruled the House of Lords, recognising the error that the Lords had made in their earlier interpretation of the law. Rather than follow the strict rules of precedent and send the issue back to the Lords for clarification, the Court of Appeal accepted the de facto situation and recognised Holley as the binding precedent.
Self-induced provocation
The Privy Council held in Edwards v R (1973) AC 648 that a blackmailBlackmail
In common usage, blackmail is a crime involving threats to reveal substantially true or false information about a person to the public, a family member, or associates unless a demand is met. It may be defined as coercion involving threats of physical harm, threat of criminal prosecution, or threats...
er could not rely on the predictable results of his demands for money when his victim attacked him (a policy decision to prevent a criminal from relying on his own wrongdoing as the cause of the subsequent death). In R v Johnson (1989) 2 AER 839, the defendant had become involved in an escalating argument with the deceased and his female companion. When the victim threatened the defendant with a beer glass, the defendant fatally stabbed him with a knife. The judge held that the threatening situation had been self-induced. The Court of Appeal held that section 3 of the Homicide Act 1957 provides that anything can amount to provocation, and there is no reason to exclude responsive actions provoked by the defendant. A conviction of manslaughter was substituted.
Sentencing
The Sentencing Guidelines Council http://www.sentencing-guidelines.gov.uk/ has issued a "final guideline" in respect of manslaughter by reason of provocation which is classed as a serious offence by section 224 of the Criminal Justice Act 2003Criminal Justice Act 2003
The Criminal Justice Act 2003 is an Act of the Parliament of the United Kingdom. It is a wide ranging measure introduced to modernise many areas of the criminal justice system in England and Wales and, to a lesser extent, in Scotland and Northern Ireland....
. The guideline confirms that a conviction must almost always result in a custodial sentence and that the degree and extent of the provocation must be balanced against the offender's response when determining the appropriate sentence. The more the evidence demonstrates an unpremeditated quality to events, the more the sentence may be mitigated. In this, exposure to long-term abuse has an equivocal quality because the immediate "straw" only assumes significance given the context and the response may have greater qualities of revenge. However, factual scenarios involving attacks made in a family context, attempts to conceal evidence (including concealment of the body), etc. will aggravate the sentence.