The Defence of Provocation

By Mubin123

The Coroner and Justice Act 2009[1] received the Royal Assent on the 12^th of November 2009. The Act took into account many recommendations made by the Law commission but has decided on its own rules with regards to the law of Provocation. As of the passing of the new bill the law of Provocation as it was previously known has now been abolished and replaced by the new partial defence to murder known as the “loss of control”[2]. This paper will aim to discuss why the previous law of provocation did not serve a useful purpose in its current form, and the perceived faults that were rectified by the new bill.

The defence of provocation was initially a common law defence[3] before being introduced as statutory defence under s.3 of the Homicide Act. The defence of provocation was initially introduced as a concession to human frailty to justify a man losing his self control, as before the abolishment of capital punishment murder was a crime that carried a death sentence.

The law was changed in 1957 by the Homicide Act to be read as:

“Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked 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.” [4]

The defendant has to raise enough evidence to satisfy the trial judge for a plea of provocation to be put forward, after the defence has been approved by the trial judge the question of the merits is left to the jury to decide.

The change in law has led to many interesting scenarios on what is to be considered capable of constituting provocation. The cries of a baby[5] would be enough for a defence of provocation to be entered and put before the jury as it was seen as misdirection by the trial judge in the case of Doughty[6] to not consider it as enough to constitute provocation.

The loss of control must be sudden and temporary[7]. This does not imply that there is a need for a complete loss of self control as with a complete loss of control it would be nearly impossible to commit the offence of murder. The defendant can still know what they are doing but being unable to restrain themselves. The loss of control must not be through revenge as such a cooling off period is very difficult to justify due to the fact that as the time passes so should the anger[8]. That is the first part of the two part test, the next requirement the reasonable person test can be considered a subjective test. Proof of this can be garnered from the case of DPP v Camplin[9] where on directing the jury with regards to a 15 year old boy the trial judge was incorrect in directing the jury to consider his actions in light of a reasonable man, he should have been assessed on the fact that he was a 15 year old boy. This was confirmed by both the Court of Appeals and the House of Lords.

The question that now needs to be answered is whether the law on provocation serves a useful purpose. This has been a topic that has been contested by academics, judges, and politicians. As discussed previously provocation was initially introduced to mitigate the harshness of the punishment that came with a murder conviction, since capital punishment has now been abolished how is it possible for provocation to still be considered a concession of human frailty unless to consider that maybe the act of murder was justified.

There are three main views on what would make murder justified using the defence of provocation.[10] The “pure excuse” view states that a “defendant who acts having lost his self-control is not fully responsible for his actions”.[11] This view tries to differentiate between a murder who takes the time to plan and kill his victims in cold blood, and one that kills in the heat of the moment a crime of passion. But what of the father who kills the fireman on being restrained from entering a burning house to rescue his family, he would also fall under this category. The “justification” view is that the defendant was justified in his actions, because the victime provoked him to kill. The “reasonable excuse” view says that not only must there be a loss of self-control but the loss must be justified due to an act of the victim, this is a hybrid mix of the previous two views.

We live in a society of laws where we expect the criminal justice system to exact our revenge for us, if individuals started acting like vigilantes and reaping their own justice the very foundations on which criminal justice are based would be rocked. We are not a “eye for an eye” society but one which punishes with prison time. Taking these views into account and the fact that murder is no longer an offence punishable by death, the defence of provocation does not serve a useful purpose. The government has also decided to abolish the law on provocation by implementing the Coroners and Justice Bill.[12]

With a defense that is based on centuries old traditions of honour and virtue it can be said that there are a number of perceived faults with this defense. In recent discussions[13] the most notable being that it is one that is biased towards men[14], statistics[15] show that 52.5% of women who kill their partners are able to rely on the defense of provocation whilst only 30% of men rely on it. On the numbers alone one would assume that women use the defense more than men, but we must also take into consideration the wider numbers that involve the actual number of men who repeatedly beat/rape their victims against the number of women who beat men. As an example a man could kill his wife for infidelity, but a woman would not be able to use the defense for killing her husband due to a fear-driven reaction to a threat of violence in the future.

Hoarder[16] also argues that if a person is justified in killing because of anger, that person could also be justified in killing because of greed or envy. Continuing from that point a person could also justify a killing because of sexual lust or frustration. With regards to what justifies a provocative response the case law has shown some situations where no moral person would find it reasonable. In the case of a crying baby[17] or a nagging wife[18] the courts have decided that those acts could constitute provocation.

The defense of provocation also allows the defendant to defame the victim in open court with no recourse for the victim to defend against the allegations being made. [19] The defense of provocation also allows for any evidence that he/she was provoked to be put forward for example a husband could insinuate that his wife repeatedly taunted him about her sexual affairs or his impotence without giving any recourse for the victim to submit evidence to the contrary.

These perceived faults have led to proposals for change spearheaded by reports by the law commissions who have stated that the defense of provocation is “inherently contradictory”[20] they have also stated that there was never a time when the defence of provocation was “coherent, logical, or consistent”. These perceived faults and the suggestions made were taken into consideration on passing the Coroners and Justice Bill.[21] The new partial defense of murder is no longer called provocation but will now be known as “loss of control”, it is to be read as:

(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not

To be convicted of murder if—

(a) D’s acts and omissions in doing or being a party to the killing resulted

From D’s loss of self-control,

(b) The loss of self-control had a qualifying trigger, and

(c) A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.[22]

The new law does take into consideration a number of the perceived faults that have been debated for much time. Section 2[23] of the act states that there is no need for the loss of control to be sudden this would seemingly imply that women would also now have a better chance of using the defence for their benefit in a case of where they had to wait until the husband was incapacitated enough for them to kill as in the case of Ahluwaliah.[24]

Chapter 42 of the act goes on to define what a “qualifying trigger” is. The use and definition of the word have put to rest the way that the provocation defence was being used where initially provocation could be considered anything “…said or done or both together”[25] now the thing that is said or done will only be attributed to a loss of self-control if the things that were said or done fall under the requirements of a “qualifying trigger”

The news that your wife has been unfaithful or the threat of an affair would no longer be considered a suitable reason to lose your self-control under Chapter 42 of the Act. The gender bias that was discussed as a perceived fault of the provocation defence now seems to give women more of a chance to not only argue the defence but also have more chances of succeeding with it. If a woman now kills her husband whilst he was sleeping, there is no need for the cooling-off period to be mentioned as long as she did not kill to exact revenge[26] she would be able to justify her actions. Whereas if a man were to argue this it would be a near impossible task to convince a jury of his peers that he did not kill in revenge but in anger, one would be asked the question if you were angry why not execute your anger whilst the situation was unfolding before you? The new wording would also have an effect in reducing the defamation of the victim, as if they had committed an act of violence or threat of violence the proof would most likely speak for itself.

The fault of profiling is not explicitly cleared up by the new defence, but with the wording of the Bill, only acts of violence or threats of violence would allow the defence to be used. The profiling was mentioned with regards to the previous defence when anything said or done could constitute the defence of provocation, but with the new defence of “loss of control” only acts of violence or a threat of violence would be able to unlock the defence.

The new law is a major shift in government policy and one towards gender equality, but many people have had concerns that these new laws would also allow the courts to be more lenient towards woman that kill abusive husbands by now allowing women who suffered from “slow-burn” to be able to use this defence. It could be argued that the gender inequality has now shifted in favour of men, and they would not be able to use this defence as much as women. Whilst the law has changed it is a far cry from what many academics have suggested of actually abolishing the mandatory life sentence that a judge is forced to impose on a charge of murder. The new law is a step in the right direction but is a far cry from what needs to be accomplished, though it has created a certainty in what many have considered a hybrid of judge-made law and statutory law. The actual impact this new law will have is yet to be seen.

[1] Coroner’s and Justice Act 2009

[2] Coroner’s and Justice Act 2009

[3] R v Duffy [1949] 1 All ER 932)

[4] Homicide Act 1957

[5] R v Doughty [1986] Crim LR 625

[6] R v Doughty [1986] Crim LR 625

[7] R v Duffy [1949] 1 All ER 932)

[8] R v Ibrams and Gregory [1981] 74 Cr App R 154. and R v Ahluwaliah [1992] 4 All ER 889. the slow burn principle

[9] DPP v Camplin [1978] AC 705

[10] HERRING, J. Criminal Law Text, Cases, and Materials 3^rd Ed.

[11] Uniacke, S. (2007) ‘Emotional Excuses’ Law and Philosophy 26:95

[12] Coroner’s and Justice Act 2009