The criminal standard of proof

Unlike diminished responsibility, provocation was recognised at common law as a partial defence to murder long before its statutory recognition in section 3 Homicide Act 1957, and is further distinguishable in that the burden of proof is not on the defence. In other words, the jury must clearly be told that, once there is evidence capable of supporting a finding that the accused was provoked, the burden is on the prosecution to prove – to the criminal standard of proof – that the case is not one of provocation.

Of course, there must be some evidence of provocation during a trial and in R v KROMER [2002] EWCA Crim 1278 – CA there was none. The classic test of provocation at common law was that given by Devlin J in R v DUFFY [1949] 1 All ER 932 – CA, and approved by the Court of Criminal Appeal in that case. Briefly, the case was a successful appeal by a wife who had axed her husband to death after having been subject to regular, violent abuse by him.

An everyday story, really! Anyway, this is what Devlin said: 'Provocation is some act, or series of acts, done by the dead man to the accused 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 mind. '

This passage has to be read in the light of section 3 of the Act which does not provide a complete definition of provocation, but provides, essentially, that a jury must decide whether the provocation – by things done or by things said or by both together – was sufficient to make a reasonable man lose his self-control and commit the same actus reus as the defendant. So, from both Devlin J's definition at common law and section 3, a number of conditions have to be satisfied for the defence to be made out.

There is the subjective condition that the accused himself was actually provoked so as to lose his self-control; and the objective condition that the reasonable man would have done so. Further, the loss of self-control has to be sudden. Now, the major problem, discussed at length in R v SMITH (2000) 4 All ER 289 – HL, is the role of the reasonable man in all this. You see, juries used to be told that the reasonable man shared none of the peculiarities of the accused other than age and sex. Thus, understandably, drunkenness and excitability, or ill temper were not relevant characteristics.

But as we moved on, and particularly since words alone can constitute provocation, some characteristics of the accused had to be relevant. For example, to taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by a jury to be provocation; and so the reasonable man will share these kinds of characteristics. So, taunts about the accused's addiction to glue sniffing was accepted as a relevant characteristic in assessing the gravity of provocation in R v MORHALL [1996] AC 90 – HL.

The upshot is that the jury had to consider how a reasonable glue sniffer would behave in determining whether or not the accused was sufficiently provoked! Can you see how silly this is and, more importantly, how confusing to a jury? This brings us to the central point of our discussion and begs two questions: what characteristics should a jury take into account in assessing how the reasonable man would behave and how does this affect the objective element? You see, the concept of the reasonable man is objective.

If, therefore, any characteristic of an accused may be taken into account, then we have arrived at a situation where there is no objective element at all! Let's look at SMITH in a little detail. Incidentally, I have included the full judgment of Lord Hoffman here for two reasons: it is readable and it is time that you did read a full judgment. If you think that I have been unfair in not editing the case, then I can only say that I have not included the judgments of the other Law Lords which in total exceed 100 pages!

In SMITH, the defendant received a visit from his old friend James McCullagh. They were both alcoholics and spent the evening in drinking and recrimination. Smith had grievances against McCullagh, some of which went back many years. The most recent was his belief that McCullagh had stolen the tools of his trade as a carpenter and sold them to buy drink. McCullagh's repeated denials only inflamed Smith further and he took up a kitchen knife and stabbed McCullagh to death. He was charged with murder and raised the defence of provocation.

At his trial he argued that the jury, should be allowed to take into account the fact that, at the time of the killing, he was suffering from a severe depressive illness which reduced his powers of self-control. The judge rejected this argument and directed the jury as follows: 'The 'reasonable man' means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today'.

Smith was convicted. On appeal, The Court of Appeal certified the following point of law of general public importance: 'Are characteristics other than age and sex, attributable to a reasonable man, for the purpose of section 3 of the Homicide Act 1957, relevant not only to the gravity of the provocation to him but also to the standard of self-control to be expected? '

Lord Hoffman answered the question by saying this: '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 by 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' and that 'it would not be consistent with section 3 for the judge to tell the jury as a matter of law that they should ignore any factor or characteristic of the accused in deciding whether the objective element of provocation had been satisfied.

That would be to trespass on their province. ' However, Lord Hoffman did carry on to say that judges should direct juries that 'characteristics such as jealousy and obsession should be ignored in relation to the objective element' and (Lord Clyde) 'exceptional pugnacity or excitability'. So, what exactly is the current position on provocation? Well, we'll let Lord Hoffman speak and then I'll sum up the law succinctly for you!

This is what Lord Hoffman said: 'First, it requires that the accused should have killed while he had lost self-control and that something should have caused him to lose self-control… Secondly, the fact that something caused him to lose self-control is not enough. The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse.

The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question for the jury. In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowance for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition.

In applying these standards of behaviour, the jury represent the community and decide… what degree of self-control everyone is entitled to expect that his fellow citizens will exercise in society as it is today. 'The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up… But the jury should in an appropriate case be told, in whatever language will best convey the distinction, that this is a principle and not a rigid rule.

It may sometimes have to yield to a more important principle, which is to do justice in the particular case. So the jury may think that there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account. If the jury take this view, they are at liberty to give effect to it. '

So, apart from a jury being satisfied that the defendant actually had been provoked as a matter of fact, a jury may then find that the defendant had been provoked at law if they find that at the time of the killing it was unreasonable for him to have kept his self-control, bearing in mind any characteristic he may have except the characteristics of at least jealousy, obsession and exceptional pugnacity or excitability. In my opinion, for what it's worth, I think that the objective reasonable man test has gone out of the window!

In any event, the particular characteristic of the defendant does have to relate to the provocation. Thus, chronic alcoholism was held not to be a relevant characteristic in R v NEWELL (1980) 71 Cr App R 31, since the provocation consisted of taunts about the accused's former girlfriend. The fact that he was a chronic alcoholic did not affect the gravity of those taunts, although no doubt it may have affected his powers of self-control. On the other hand, had he been taunted about the fact that he was a chronic alcoholic, the characteristic would have been relevant since it would affect the gravity of the taunts

As for other characteristics that may not be relevant in deciding provocation, it still seems (R v ACOTT [1997] 1 WLR 306 – HL) that the reasonable man does not lose self-control by factors such as fear, panic, bad temper or circumstances; and neither by a mere speculative possibility of provocation in the absence of any actual evidence of acts or words of provocation. Certainly, words alone can amount to provocation because section 3 tells us so.

The acts, words, or indeed sounds, may even be perfectly lawful or commonplace ones as, for example, the crying of a young baby in R v DOUGHTY (1986) 83 Cr App R 319 – CA, where the defendant father smothered his 17-day old son, who had cried persistently. Some people may retain self-control if attacked personally but understandably lose it in the face of an attack on a vulnerable loved one. On the other hand, provocation does seem to require conduct on the part of someone (things done or things said), and there is no such thing as provocation by circumstances.

You may have seen a terrific film, Falling Down, starring Michael Douglas, where the 'hero' loses his cool after being stuck in a traffic jam, and goes out on a killing spree. This is an example of provocation by circumstance. Steyn LJ in ACOTT also gave an example of circumstance – a slowdown of traffic. Perhaps he had seen the film! Moving on, there must be a 'sudden and temporary loss of self-control'; and it is the sheer immediacy requirement that has disadvantaged women in domestic homicides.

An abused wife is not strong enough to kill her husband with her bare hands: she must rely on a weapon and on her husband not being in a position to disarm her. Often, therefore, she has to wait until her husband is asleep before she can kill him, and thus the emotion of provocation has been seen to become revenge which is inconsistent with provocation. So, in R v AHLUWALIA [1992] 4 All ER 889 – CA, there was an unsuccessful plea of provocation where the defendant wife, a number of hours after being threatened with a beating the next morning, burnt her husband to death by pouring petrol over him whilst he was asleep.

Here, the Court of Appeal stated that 'important considerations of public policy would be involved should provocation be re-defined so as possibly to blur the distinction between sudden loss of self-control and deliberate retribution'. However, in the case, Lord Taylor CJ also made it clear in this case that, provided there was a sudden loss of control, the interval between the provocation and that loss of control was a matter to be taken in account in assessing the evidence on the facts of the case and did not give rise to a rule of law.

Thus the loss of self-control has to be sudden and temporary in that it comes over the accused quickly (whether or not it does so instantly after the provocation) and departs reasonably quickly as opposed to being a planned or premeditated killing. That said, how does this square with R v THORNTON (No 2) [1996] 2 All ER 1023 – CA? Here, the defendant was suffering from 'battered women's syndrome' and appeared to have coolly executed her drunken and abusive husband.

Her defence claimed that she was acting in a 'disassociated' state due to this syndrome, so that when she told the police in the immediate aftermath of the killing, 'I know exactly what I am saying. I sharpened up the knife so I could kill him… I just walked into the kitchen, got the knife, sharpened it up and stuck it in his belly' – she was not herself, so to speak! In the event, the court ordered a re-trial where her plea of provocation was accepted, amidst much publicity. You may feel that battered women should get special treatment (as should battered men?!

); alternatively, that the 'syndrome' is merely a licence to kill. I couldn't possibly comment! In any event, battered women's syndrome worked out nicely for Janet Charlton, whose lover was found lying naked, gagged, blindfolded and handcuffed – with an axe in his head! Likewise, Zena Burton was over the moon when she walked free from court after killing her partner, John Westgate. John had refused to let her watch an England football match on the telly. He probably thought it was all over – it was after she throttled him to death with the TV aerial flex! Nice one, Zena!

More seriously, if you get an exam question on these kinds of facts, then consider whether a plea of diminished responsibility (see the Defences lectures) might provide a better defence. Certainly, it proved successful for Tara Fell. You can see from what I have just mentioned that there is no rule that 'the mode of resentment must bear a reasonable relationship to the provocation'. This was laid down by the House of Lords in MANCINI v DPP [1942] AC 1 – HL. In other words, there is no requirement that the actual response of the provoked person must measure up to the degree of provocation.

So, assuming there is some evidence that the accused actually was provoked to lose self-control, the judge will merely leave the question to the jury whether the provocation was enough to make the reasonable man do as the accused did. That said, the relationship between the provocation and what the accused did is certainly not an irrelevant factor for the jury in answering that question. We have just time to have a look at the third partial defence in murder: killing in pursuance of a suicide pact contrary to section 4 of the Homicide Act 1957 which is itself an offence of manslaughter.