The defence of provocation is set under S3 of the Homicide Act 1957 and is defined 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 determines by the jury. Provocation is a partial defence which is only available to a charge of murder and if succeeded the charge of murder becomes that of manslaughter. Before this provocation has been a common law. There are many areas that are controversial in this area of the law which I shall be discussing in detail.
This section does not explain what can amount to provocation, except to state that it can be 'by things done or by things said or by both together.' The section also imposes a two - stage test for the jury to apply. A subjective test which is sis the defendant lose his self-control and an objective test which is would a reasonable man have lost his self-control?
One problem with these two tests that the jury need to apply is that the definition of a reasonable man differs from person to person and so it will lead to unjust decisions as on some occasions the jury may be more lenient on what comes under a reasonable man and on another occasion they may not be so lenient. This again shows how provocation has become too wide in its application and can lead to unjustified decisions.
The act states that provocation can be things done or said or both. This has been held to include a wide range of behaviour, such as; physical assaults, homosexual advances, a denial of stealing the defendant's tools and many more. These examples show perfectly how provocation has become too wide in its application as it ranges from physical assault which is a serious crime and it could be well explained it the person was provoked and so it is justifiable. However, it also goes onto say that provocation can also result when a persons tool are stolen which is essentially just a petty theft and so for killing someone just because they took your tools and then having your sentence reduced from that of murder to manslaughter can be seen as very unjust.
There are three main elements for provocation which are evidence, loss of control and a time-lapse. An example of evidence would be the case of Doughty (1986). In this case the defendant killed his 19-day-old son, raising the defence that the baby's persistent crying and recklessness constituted provocation. The trial judge had made a mistake in refusing to leave the defence of provocation to the jury. The Homicide Act 1957 requires the trial judge to leave to the jury the issue of the objective test, the second part of the test set out in s 3 of the Act. This shows that provocation is not too wide as it was decided in the court of appeal that the trial judge had to leave the decision-making up to the jury and when that was not done the Court of Appeal quashed the conviction and replaced it with manslaughter.
The first test is that the jury must be satisfied that the defendant lost his self-control as a result of provocation. The accepted test comes from Duffy (1949). In this case the defendant, who was an abused housewife, had a quarrel with her husband. Then when he was asleep she attacked him in bed with a hammer and a hatchet. The defendant's conviction for murder was upheld because the court stated that there must be 'a sudden and temporary loss of self-control, to make him or her for the moment not master of his mind'. This concept has been approved by the Court of Appeal in later cases since 1957. This means that provocation is only available as a defence where the defendant suffers a sudden loss of self-control. This test shows again that the law on provocation is not too wide at all in its application and that it is firm with the decisions it makes.
One of the points that may be looked at to decide whether there was a 'sudden and temporary' loss of self-control is the time-lapse between the provocation and the killing. The longer the time-lapse between the two the less likely that the defence will succeed. This was shown in the case of Ibrams and Gregory (1981). In this case the ex of Ibrams' current girlfriend had been terrorising them. On the 7th of October Ibrams called the police but they did nothing. On 10th October the two planned to attack the ex boyfriend and they carried this out and killed him on the 12th. They were convicted of murder and the Court of Appeal upheld their convictions because there was no evidence of any provocation after the 7th of October and the gap of between five days negatived their claims that they had lost their self-control.
This does not mean that there can never be any time-lapse. Other cases have pointed out that there can still be a 'sudden and temporary loss of self-control' even after a time gap. This was seen in the case of Bailie (1995). In this case the defendant appealed his conviction for murder. The deceased had been supplying his sons with drugs. On the day in question he learned that the supplier had threatened violence against one son for buying drugs elsewhere. He was drunk. He went to the victim's house taking with him a sawn off shotgun and a cut throat razor and killed him. The Court of Appeal quashed his conviction for murder and ordered a re-trial. It held that ever thought there are factors, such as a lapse of time, which tend to equate with a desire fro revenge; it is still possible for there to be a sudden and temporary loss of self-control.
Both these cases shows that the application of provocation is not too wide but it is wide enough for there to be specific distinctions to be made which can lead to different decision which can be seen as unjust. It is argued that this need for a sudden loss of self-control makes the defence more available to men than women. This is because men are more likely to respond quickly with violence than women. However, in many cases is has been shown that women will take longer before they lose their self-control. This is known as 'slow burn' and was considered in the case of Thornton (NO 2) (1996). In this case the defendant was battered by her husband throughout their first year of marriage. One night her husband was intoxicated and called her a whore; she then obtained a carving knife for protection. The husband threatened to kill the defendant in her sleep and sarcastically taunted her to kill him first. She stabbed him once in the stomach, causing his death. The Court of Appeal said that there was medical evidence that the defendant was suffering from 'battered women syndrome' and it could be relevant in explaining the 'slow burn' reaction. It quashed the conviction and ordered a re-trial at which the jury acquitted the defendant.
This shows that provocation has become too wide in its application as there are too many sub defenses that could be used within the partial defence such as a slow burn defence in the category of the partial defence of provocation.
Under S 3 of the Homicide act 1957, the jury must take into account the effect the provocation would have on a reasonable man. The phrase 'reasonable man' has caused many problems. Before the 1957 Act, under common law, the courts ruled that the reasonable man was an adult who was normal both mentally and physically. This ruling appeared unfair on many occasions such as in Bedder v DPP (1954). In this case the defendant was impotent and a prostitute taunted him about his and he tabbed her to death. His conviction for murder was upheld because under the 'reasonable man' test the jury had to ignore the fact of impotence and the effect it would have on the provocation.
This was the leading case until 1978 when in Camplin the House of Lords held that the 1957 Act had effectively overruled Bedder. In Camplin it was held that age, sex and other relevant characteristics should be taken into account when considering how the reasonable man would have responded to the provocation. In the case of Camplin (1978) the defendant, aged 15, submitted to anal intercourse by the victim aged 50, after which the victim 'laughed at' the defendant. So he killed the victim by splitting his skull with a heavy pan. At the trial the judge directed the jury to ignore the boy's age and to consider what effect the provocation would have had on the reasonable adult, and he was convicted of murder. On appeal, the House of Lords overruled Bedder and allowed the Appeal, substituting a conviction for manslaughter.
This made it clear that there were two parts to the 'reasonable man' test in S 3 of the Homicide Act 1957. These were for the purpose of self-control, the level is the power of self-control to be expected from a person of the age and sex of the defendant, but for the gravity of the provocation, the reasonable man shares such of the defendant's characteristics as the jury think would affect the gravity to the defendant.
In conclusion I think that some areas of the special murder defence of provocation are indeed two wide in its application and are indeed in need of reform, on the other hand, there are some areas which are not too wide and are in no need of reform.
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