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:
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:
Get the film Provoked based on the case of Ahluwalia:
A defendant will still be allowed the defence if they induced the provocation:
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."
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. 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 defence was unsuccessful in the following cases as the defendants were unable to demonstrate a sudden and temporary loss of control:
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:
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:
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:
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:
These cases lead to concern that the law 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:
Privy Council decisions are not generally binding in English law. In Smith (Morgan), the House of Lords had the opportunity to consider the issue and decided against the approach taken in Luc Thiet Thuan.
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:
Stingel v. The Queen (1990) 171 CLR 312 Case summary
Subsequently the issue 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 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 applicable to England and Wales and has applied the decision in three subsequent cases and thereby departing from the House of Lords precedent in Smith (Morgan).
The Coroners and Justice Bill is currently before Parliament. Clause 47 introduces a new defence of loss of control where it has been prompted by a trigger event (clause 48). S.3 of the Homicide Act 1957 and the commonl law of provocation is to be repealed by clause 49.
48 Partial defence to murder: loss of control
(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 selfrestraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
(3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint.
(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
(5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not.
(6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could reasonably conclude that the defence might apply.
(7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.
(8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it.
49 Meaning of “qualifying trigger”
(1) This section applies for the purposes of section 48. (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.
(4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which—
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
(5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6) In determining whether a loss of self-control had a qualifying trigger—
(a) D’s fear of serious violence is to be disregarded to the extent that it was
caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not
justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.
(7) In this section references to “D” and “V” are to be construed in accordance with section 48.
50 Abolition of common law defence of provocation
(1) The common law defence of provocation is abolished and replaced by sections 48 and 49.
(2) Accordingly, the following provisions cease to have effect—
(a) section 3 of the Homicide Act 1957 (c. 11) (questions of provocation to be left to the jury);
