Provocation

Voluntary Manslaughter is where a defendant, who would otherwise be guilty of murder, is able to successfully plead to one of the two specific defences. These defences are defined in the Homicide Act 1957. They are: Provocation; and Diminished Responsibility. The result of successfully pleading one of these defences is that the defendant is found guilty of manslaughter, and not murder, which means a lower sentence to the one faced for murder.

 

Provocation

·         Text Box: “Where, on 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…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.”







Provocation is defined in Section 3, of the Homicide Act 1957:

 ·         This act lays down the two-fold test to be applied by the jury:

1.       Was the defendant provoked to lose his self control? (Subjective Test)

2.       Would a reasonable man have lost his self-control in the circumstances? (Objective Test)

 

Behaviours which amount to Provocation:

·         A physical attack on the defendant;

·         An assault not on the defendant but on those close to him (Pearson (1992));

·         The crying of a small baby (Doughty (1986));

·         Mockery following sexual abuse (Camplin (1978));

·         The supplying of drugs to the defendant’s son (Baillie (1995));

·         The denial of theft of another’s property (Smith (2000)).

 

Subjective Test

·         When determining whether the defendant was provoked enough to lose his self control we must first understand the meaning of ‘provocation’ as set out in the Homicide Act.

·         In Section 3 of the Homicide Act of the homicide act it states that provocation is things ‘done or said or both’ by the victim specifically and deliberately at the defendant. However, it is not necessarily be aimed at the defendant himself but it may be aimed to someone close to them.

·         In Pearson (1992), it was held that the ill-treatment of the defendant’s younger brother by his father was enough to cause the defendant to lose self-control. In this case the acts which provoked the defendant were not aimed at him but at his brother.

·         In Doughty (1986) the continual crying of his three-week-old son causes the defendant to lose control and kill him. Clearly, the provocation in this case could not be said to have been deliberate.

·         Under the common law, the loss of self control must be ‘sudden and temporary’ such as that the defendant is not forming a specific intention but reacting to provocative behaviour.  This was stated in the case of Duffy (1949) and has been applied in cases following the passing of the 1957 Act.

·         The problems starts where cases arise which are not sudden or temporary, and have a time-lapse. This can be seen in the case of Baillie (1996) where a father killed the dealer supplying drugs to his son. Although there was a lapse of time during which the defendant armed himself, it did not necessarily prevent a sudden and temporary loss of self-control.

·         In Ibrams and Gregory (1981) on the other hand, it had been found that as there had been no provocation for a period of three days before the killing, there could not have been a sudden loss of self-control.

·         In Ahluwalia (1992), the defendant had been abused by her husband over many years. One day the defendant waited for her husband to fall asleep before burning she burnt him alive. Because of this delay the defense of provocation was dismissed.

·         Similarly, in the case of Thornton (1996), the defendant had also been receiving abuse from the Heavy-drinking husband. After one incident, she went to the kitchen to look for a weapon; she took a carving knife and sharpened it. She then returned to the living room where she stabbed her husband to death. It was held that a minor incident could act as the ‘last straw’ and trigger a sudden final loss of control, following a long build-up of provocation.

·         In Richens (1993), the defendant’s girlfriend was allegedly raped. He confronted the culprit, who said she consented to sex. The defendant became enraged and stabbed him to death. The Court of Appeal accepted the plea of provocation, stating that it did not require the accused to have such a loss of control that he did not know what he was doing. It was enough that the loss of control made him unable to restrain himself from doing what he did.

 

Objective Test

·         “Was the provocation enough to make a reasonable man behave in the same way as the defendant?”

·         “Would a person of the same age and sex as the defendant, but with ordinary powers of self-control, have reacted in the same way to the provocation?”

·         “Individual peculiarities such as mental abnormality or intoxication should not be taken into account.”

·         In Camplin (1978) the House of Lords held that the characteristics of a reasonable person should include: age; sex; race; colour; ethnic origin; physical deformity; impotence; and a painful medical condition where the provocation is a blow to that part of the body. Pregnancy and menstruation might also be relevant where women are concerned, if that was the object of the provocation.

·         In Luc Thiet Thuan (1996), it was held that mental infirmity which reduced the power of self-control below those of an ordinary person could not be taken into consideration in the objective test.

·         In Smith (Morgan) (2000), it was held that clinical depression may reduce the power of self-control in considering whether a normal reasonable man would have acted in such a way. The House of Lords agreed with the Court of Appeal, and thus the reasoning in Luc Thiet Thuan (1996), was rejected.

·         In Holley (2005), it was held that the jury should not take into account any individual peculiarities such as mental abnormality or intoxication. These would be matters should be left to the defence of diminished responsibility rather than provocation.

·         The case of James and Karimi (2006) further affirmed the judgement of Holley.

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