The defence of provocation

Critically examine the defence of provocation. Including the implications of the House of Lords' decision in Morgan Smith [2000] 3 WLR 654. The defence of provocation is a partial defence, pertinent only to murder. If successfully pleaded, liability is reduced to manslaughter. For the defence to succeed there are three requirements: (i) There must have been some act(s) or word(s) of provocation (ii) The defendant must have lost his self control (iii) The circumstances must be such that a reasonable man would have reacted as the defendant did, the requirements come into light from section 3 of the Homicide Act 1957.

However great contention arises over the latter two requirements, which remain highly subjective and value laden on discussion. The excusing element of the doctrine of provocation is derived from the subjective requirement – evidence that D was provoked to lose self-control. Reason being to exonerate the individual from the murder offence, where the entirety of fault lay not solely on the defendant.

It is important to stress at this stage that the Homicide Act, requires that the accused was provoked to lose self-control, the sole fact that self control was lost will not suffice for a successful defence. It appears that section 3 remains open to wider interpretation in the sense that the provocation can come from a third party, a person other than the deceased, which is demonstrated in the case of Davies1.

Revealed in the case of Doughty(1986)2, it can be inferred that the law lays down a requirement that the 'provoking' must have come from a human being in order for the accused's act to be considered under this defence, In this case the defendants murder conviction was reduced to manslaughter on the basis, that persistent crying of his seventeen day old son was sufficient provocation from another human being, this seems rather incongruous, as an actions of one human being may be natural and innocent on his behalf and maybe totally unaware the effect his actions are having on the accused.

It was stated by Lord Steyn in Ascott (1997)3, the requirement being 'some evidence of a specific act or words provocation resulting in loss of self-control', whereas 'a loss of self-control caused by …

bad temper or circumstances (slow down of traffic due to snow) would not be enough' This raises the question, why doesn't the law require traffic jams resulting in road rage, say for example, a good source of provocation which too, resulting from human activity, is also out of the capacity of a person whom might be involved in the jam, say a motorist in front of the attacker was driving too slow and being cautious due to bad weather, and may then be the victim of an attack this renders the importance of the understanding of the 'provocation coming from another human being' illusive, as the whole traffic jam did come about due to human activity, i. e. more than the usual number of people driving on the road on that day, hence slowing traffic whatever the circumstances, (e. g. bad weather) maybe, it was from those extra commuters from which the attackers anger derived.

Reference to circumstances of natural activity such as snow and bad temper then becomes irrelevant in such circumstances in my opinion. I believe the statement by Lord Steyn rises a contradiction with respect to the case of Doughty, as the circumstances and the fact him (bad temper, and natural consequence of him having a (unwanted) child say) having a child, should be regarded as 'not being enough' for provocation to suffice. Also regardless if a natural consequence has occurred, we still have homicide, which is concerned with the acts of human beings, weather they were triggered of by that natural consequence is immaterial. Another important factor in the subjective requirement is, the magnitude of disturbance required to evince loss of self-control.

For centuries the courts have distinguished the between revenge killings and others where D was not 'the master of his own understanding' and where there had not been 'time for the blood to cool and for reason to resume its seat'4 these were the views of Devlin J in the case of Duffy(1949)5 with no support of precedence, phrased the laws requirements as 'a sudden and temporary loss of self control' implying that the acts of the accused must occur quickly after the provocation has been received. Time elapse becomes an important issue, especially in the perspective of evidence, as it raises the question are we dealing with a killing inflicted by provocation or is it a planned heinous killing? The law looks for a 'sudden' and temporary loss of self- control. Strife arises over the word 'sudden', which is not mentioned in section 3 of the Homicide Act 1957. In my opinion it would be highly artificial to deny that suddenness regarding temperament is a varying factor, dependant on age, sex, biochemical factors in the human body6.

Hence making the law more favourable, say, for a person of greater physical strength, men over women. Although it would be reasonable to exclude those killings in which the time gap displays a reasonable cooling down period7: but what about those individuals with a slow burning temperament. Despite cases such as R v Alhuwalia8 and R v Thornton9 recognising the fact that women suffering from 'battered women's syndrome' may react on a slower fuse the courts still remain persistent that there must be sudden and temporary loss of self-control. Although provocation has been acknowledged10 the law shows no real sympathy and falls short in judgement towards the battered spouses who in my opinion are genuine victims of the provocation.

Section 3 states, there must have been some act(s) or word(s) of provocation, in order for the defence to be applicable. After the statute has served its means, it is then for the jury to infer the validity of provocation, contrary to this is the decision in the case of Edwards11 where Lord Pearson's interpretations challenged Parliaments intentions of section 3, stating irrelevant pre-conditions in cases of self-induced provocation. In Johnson12 the Court of Appeal disapproved Edwards, clearly restating the meaning in section 3, that regardless if the defendant brought about the circumstances, it was for the jury to answer the question, whether things done or said or both provoked the defendant to lose his self-control.