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 Voluntary Manslaughter - Provocation


 
Please note the law of provocation was repealed by the Coroners and Justice Act 2009 and replaced with the defence of Loss of Control. Please see the lecture outline on Loss of Control for the current law. The defence of provocation remains applicable to killings which took place before 4th Oct 2010.
 
 
The defence of provocation is a further special defence to murder contained in the Homicide Act 1957 alongside diminished responsibility and suicide pact. These are referred to as special defences as they only apply to the law of murder. They are also partial defences as they do not provide a complete defence but can reduce a murder charge to a manslaughter charge. Where manslaughter replaces murder due to one of the special defences this is known as voluntary manslaughter. This is because the defendant has the mens rea of murder which is often referred to as having murderous intent. Where a killing has occurred in the absence of murderous intent this is known as involuntary manslaughter.
 
 
 
The defence of provocation is found in s.3 of the Homicide Act 1957. The requirements of the defence of provocation under s.3 of the Homicide Act 1957 are:
 
 
1. There must be evidence of provocation.
 
 
 
2. The defendant must have been provoked to lose their self control.
 
 
 
3. The provocation must be such as to make a reasonable man do as the defendant did.
 
 
 
 
 
1. There must be evidence of provocation
 
 
S.3 requires there to be evidence that the person charged was provoked by things done or said. This extended the common law defence of provocation which did not recognise provocation by words.
 
 
There is no requirement that the provocative act was deliberate or aimed at the victim:
 
 
 
 
R v Davies [1975] 1 QB 691        Case summary
 
 
 
 
Even the constant crying of a baby is admissible as evidence of provocation:  
 
 
 
 
 R v Doughty (1986) 83 Cr App R 319    Case summary
 
 
 
However, without some evidence of a provocative act, the judge can not put the issue of provocation to the jury even where the circumstances suggest that the defendant lost their self control:

 

  

R v Acott [1997] 1 WLR 306   Case summary
 
 
The jury may take into account actions over a period of time:
 
 
 
R v Ahluwalia [1992] 4 All ER 889  Case summary
 
 
 
 
A defendant will still be allowed the defence if they induced the provocation:
 
 
 
 
R v Johnson [1989] 1 WLR 740     Case summary
 
 
 
 
 
2. Loss of self control.
 
 
S.3 of the Homicide Act 1957 requires the accused to be provoked into losing their self control. The common law definition provided by Devlin J (as he then was) in R v Duffy (as affirmed by the Court of Appeal) applies:
 
 
"Provocation is some act, or series of acts done (now includes words)... 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 or her mind."
 
 
 
 
R v Duffy [1949] 1 All ER 932   Case summary
 
 
R v Duffy was decided before the introduction of the Homicide Act 1957 which makes no reference to the requirement that the loss of self control must be sudden and temporary for the defence of provocation. However, the Duffy definition was approved as being authoritative following the Act's introduction in countless cases. It has been argued that the definition is too restrictive and can operate harshly particularly on wives who kill abusive and violent husbands.
 
 
The provocation defence was unsuccessful in the following cases as the defendants were unable to demonstrate a sudden and temporary loss of control:
 
 
 
 
 
 R v Ahluwalia [1992] 4 All ER 889    Case summary
 
 
R v Thornton [1996] 1 WLR 1174     Case summary
 
 
 
 
If there is any evidence of planning this will demonstrate no sudden and temporary loss of control:




 

                                             Case summary

 
 
The loss of control need not be complete so as to negate murderous intent:
 
 
 
R v Richens [1993] 4 All ER 877    Case summary


 
 
 
3. The provocation must be such as to make a reasonable man do as the defendant did.
 
 
 
This third element of the defence of provocation is a question for the jury. The jury is required to balance the gravity of the provocative act against the actions expected of a reasonable man. S. 3 of the Homicide Act 1957 provides that in determining the question of whether the provocation was enough to make a reasonable man do as the defendant did, "the jury shall take into account everything both done and said according to the effect, in their opinion, it would have on a reasonable man".
 
This element has proved problematic when the courts have sought to interpret and apply the section and has been the subject of many appeals.
 
Originally it was held that this third element was entirely objective and no account could be taken of characteristics of a particular defendant in assessing both the gravity of the provocation or the reaction of a reasonable man:
 
 
 
 
DPP v Bedder [1954] 1 WLR 1116    Case summary
 
 
 
However, in the following case it was accepted that certain characteristics could be taken into account in assessing whether a reasonable man would have done as the defendant did:
 
 
 
 
DPP v Camplin [1978] AC 705     Case summary
 
 
 
This lead to uncertainty as to what characteristics could be taken into account. In Newell it was stated that characteristics which were sufficiently permanent and actually related to the provocation could be considered by the jury:
 
 
 
R v Newell (1980) 71 Cr App R 331   Case summary
 
 
R v Raven [1982] Crim LR 51 Case summary
 
This suggests that provided the characteristic is sufficiently permanent it should be taken into account no matter how incompatible with the concept of a reasonable man. In R v Morhall [1995] 3 WLR 330 the court accepted that even discreditable characteristics should be taken into account in the question of the gravity of the provocation but not in assessing the reaction expected of a reasonable man:
 
 
 
 
R v Morhall [1995] 3 WLR 330    Case summary
 
 
 
It was accepted that mental characteristics should be attributed to the reasonable man in the following cases:
 
 
 
Battered woman syndrome:
 
R v Ahluwalia [1992] 4 All ER 889    Case summary
 
 
Eccentricity and obsessional personality traits:
 
 
R v Dryden [1995] 4 All ER 987     Case summary
 
 
 
Attention seeking:
 
 
R v Humphreys [1995] 4 All ER 1008     Case summary
 
 
 
These cases lead to concern that the law on provocation had taken a wrong turning and that the law expressed in Newell had been misinterpreted in that the characteristics of the defendant could be taken into account not only in assessing the gravity of the provocation but also in assessing the reaction expected of the defendant. This concern culminated in the Privy Council decision in the following case:
 
 
 
Luc Thiet Thuan [1997] AC 131     Case summary
 
 
 
 
Privy Council decisions are not generally binding in English law. In R v Smith (Morgan), the House of Lords had the opportunity to consider the issue and decided against the approach taken in Luc Thiet Thuan.
 
 
R v Smith (Morgan) [2000] 3 WLR 654   Case summary
 
 
 
The difficulties arising from such an approach were seen in the following case where it was held that characteristics of excessive jealousy and possessiveness should be taken into account by the jury:
 
 
 
 
 
Compare the approach taken in Australia:
 
 
Stingel v. The Queen (1990) 171 CLR 312  Case summary
 
 
 
 
Subsequently the issue of mental characteristics in relation to the law of provocation came before the Privy Council for further consideration in the landmark case of A-G for Jersey v Holley. The Judicial Committee of the Privy Council, consisting of nine members of the House of Lords, made an unprecedented announcement that they were declaring the law applicable to England and Wales and departed from the House of Lords precedent in R v Smith (Morgan) following the previous Privy Council decision in Luc Thiet Thuan.
 
 
 
 
 
 
 
Following on from this case the Court of Appeal has accepted that the Privy Council did state the law on provocation applicable to England and Wales and has applied the decision in three subsequent cases and thereby departing from the House of Lords precedent in R v Smith (Morgan).
 
 
 
 
 
R v Mohammed [2005] EWCA Crim 1880    Case summary
 
   

R v James & Karimi [2006] 2 WLR 887    Case summary 


 
R v Hill [2008] EWCA Crim 76       Case summary
 

 
Reform of provocation
 
 
 
The Coroners and Justice Act 2009 abolished the defence of provocation and has replaced it with a new defence of loss of control. This came into force October 2010. S.3 of the Homicide Act 1957 and the common law of provocation is to be repealed by s.56 Corononers and Justice Act 2009. S.54 introduces a new defence of loss of control where it has been prompted by a trigger event. Qualifying triggers are set out in s.55.
 
The some of main changes: 
 
  • there is no requirement the loss of control need be sudden s.54(2)
  • Sexual infidelity will not count as a qualifying trigger
  • A qualifying trigger must relate to either fear of violence from the deceased or from things done or said.
  • There are two requirement to be satisfied where the trigger is through things done or said. These are that the circumstance must be of an extremely grave character and the circumstances must have caused the defendant to have a justifiable sense of being wronged.
  • If the fear of violence or things done or said were incited by the defendant they are to be disregarded.
 
  
 
 
Further reading:
 
 
 
Law Commission Report - Partial defences to murder Aug 2004

Law Commission Report No 304 - Murder, Manslaughter and Infanticide - Nov 2006

 
The defence of provocation