"The law of provocation in the last decade has become too favourable to battered women who kill their partners. " DISCUSS Provocation is defined as "the goading of a person into his losing his self-control". 1 Provocation has been recognized as a partial defence to murder, reducing a conviction to manslaughter. It is a common law offence, and is defined in s. 3 of the Homicide Act 1957, which states:
"Where on a charge of murder, there is evidence on which the jury can find that the person charged was provoked (whether by things done or 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… " The defence involves consideration of three elements – firstly, "was the accused provoked thereby losing self-control? ", secondly, "would a reasonable man have lost his self-control?
", and finally, "would a reasonable man have done as the accused did? " The first condition is very much subjective, and easily satisfied, as if there is any evidence of provocation, the trial judge must leave the issue to the jury (see s. 3 above). In R V. Doughty (1986), the murder conviction of the accused who killed a 17 day old baby because she wouldn't stop crying, was quashed as the trial judge had refused to put the issue of provocation forward to the jury.
If a long time has elapsed between the act of provocation and the retaliation, the defence will fail as there must be a "sudden and temporary loss of self-control"2 otherwise the "circumstances which induce a desire for revenge are inconsistent with provocation as… a desire for revenge means that a person has had time to think, to reflect and that would negative a sudden temporary loss of self-control…
The essence of provocation. "3 Thus in R V. Ibrams (1981), a delay of 5 days between the provocation and the attack ruled out the defence. Many critics have opposed this point, claiming it is unfair to women who tend to reflect and contemplate necessary action, compared to a mans' more aggressive, instantaneous reaction. The second condition "would a reasonable man have lost his self-control? " is much more flexible.
Camplin  it was very much an objective test, until the House of Lords decided that the jury should have been directed into considering the reasonable actions of a 15 year old, rather than a reasonable man, since in this case, it was a 15 year old boy who had been sexually assaulted and continually taunted before lashing out and killing the provoker. The decision has been extended by the House of Lords in R V. Smith , where it was decided a jury could take into account mental characteristics of the defendant reducing his/her power of self-control.
This gives the jury a wide discretion as to what may be taken into account, and although "jealousy, obsession, exceptional pugnacity and excitability should be ignored, there is no 'model direction'. "4 The third condition is more of a question of fact for the jury – "would a reasonable man have done as the accused did? " In Mancini v. DPP , the House of Lords concluded that the "mode of retribution must bear a reasonable relationship to the provocation… " if the defence is to succeed.
It was therefore decided in R V Clarke (1991) that provocation was no defence, as the accused had head butted, strangled, and electrocuted the victim -a reasonable man would not have taken such extreme action. Many of the fundamental rules relating to the defence of provocation are favourable to the accused. Firstly, cumulative provocation is recognised, so if an accused reacts particularly violently to a trivial act, provocation can succeed on a 'final straw' basis.
This was highlighted in R v Humphreys  where a murder conviction was quashed as the trial judge should have taken into account numerous examples of provocative behaviour over the course of the accused's and the victim's relationship. Secondly, provocation can be directed at a third party and be sufficient for the accused to have a defence. If provocation has come from a third party, this will also not rule out the accused's defence as shown in R v. Turine . Here, the accused was provoked by his girlfriend's conduct with the victim, and as a result, the victim was killed.
Even transferred malice can be covered by the defence – in R v. Gross (1913) the accused was provoked by her husband and therefore attempted to shoot him. The shot missed however and killed the victim. Another point is that even if the accused is the aggressor, this won't automatically deprive them of the defence. Although this was not shown in Edwards v. R  (where the privy council stated that if the provocation was self induced it could not succeed), in R v. Johnson  the Court of Appeal concluded that the accused was not precluded from the defence even though "the attack was inevitable from the conduct.
" Fourthly, where the accused is provoked as a result of a mistake of fact, they are still entitled to be judged on the facts they believed them to be – this is shown in R v. Letenock (1917) where the conviction was reduced to manslaughter as there was evidence to show the accused believed he was going to be attacked. Finally, in the defence of provocation, the burden of disproving evidence raised for the defence of provocation remains on the prosecution unlike other defences such as diminished responsibility where the burden of proof is reversed.