The defence of provocation was a special defence to murder contained in the Homicide Act 1957 alongside diminished responsibility and suicide pact. The Coroners and Justice Act 2009 made significant changes to the defences contained in the Homicide Act 1957. These are referred to as special defences as they only apply to the law of murder, and they have the effect of reducing criminal liability rather than absolving the defendant from liability completely 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 was found in s. 3 of the Homicide Act 1957. In order to successfully prove the defence of provocation under Section 3 of the Homicide Act 1957 the two following common law elements had to be proven:
1. The factual: A consideration of whether the defendant was, or may have been, provoked into losing self-control. The issue here is a pure question of fact. 2. The evaluative: The jury was required to answer the question of whether the provocation was enough to make the reasonable man do as he did. The issue here is a pure evaluation of fact. Accordingly two different tests were developed in relation to the evaluative part of the defence of provocation. They were as follows: 1.
Whether an ordinary person of ordinary powers of self-control would have reacted to the provocation in the way in which the defendant did – in this respect no allowance was given to specific characteristics of the defendant which may make him more volatile 2. That the circumstances were such to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter The requirements of the defence of provocation under s. 3 of the Homicide Act 1957 were: 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. 1. There is no requirement that the provocative act was deliberate or aimed at the victim: R v Davies  1 QB 691 1.
Even the constant crying of a baby is admissible as evidence of provocation: R v Doughty (1986) 83 Cr App R 319 1. 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: R v Acott  1 WLR 306 1. The jury may take into account actions over a period of time: R v Ahluwalia  4 All ER 889 1. A defendant will still be allowed the defence if they induced the provocation: R v Johnson  1 WLR 740
1. The defendant must have been provoked to lose their 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 in R v Duffy 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.
" R v Duffy  1 All ER 932 R v 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 for the defence of provocation. 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 provocation defence was unsuccessful in the following cases as the defendants were unable to demonstrate a sudden and temporary loss of control: 1. R v Ahluwalia  4 All ER 889 2. R v Thornton  1 WLR 1174 Any evidence of planning will not demonstrate a sudden and temporary loss of control: 1. R v Ibrams & Gregory(1982) 74 Cr App R 154 The loss of control need not be complete so as to negate murderous intent: 1. R v Richens  4 All ER 877 1. 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: 1. DPP v Bedder  1 WLR 1116 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: 1. DPP v Camplin  AC 705 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: 1. R v Newell (1980) 71 Cr App R 331 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 Morhall 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: 1. R v Morhall  3 WLR 330
It was accepted that mental characteristics should be attributed to the reasonable man in the following cases: 1. Battered woman syndrome: R v Ahluwalia  4 All ER 889 1. Eccentricity and obsessional personality traits: R v Dryden  4 All ER 987 1. Attention seeking: R v Humphreys  4 All ER 1008 These cases lead to concern that the law on provocation 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: 1. Luc Thiet Thuan  AC 131 Privy Council decisions are not generally binding in English law. In R v Smith (Morgan), the House of Lords had the opportunity to consider the issue and decided against the approach taken in Luc Thiet Thuan. 1. R v Smith (Morgan)  3 WLR 654 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: 1. R v Weller  Crim LR 724
In Australia the approach taken was different: Stingel v. The Queen (1990) 171 CLR 312 Subsequently the issue of mental characteristics in relation to the law of provocation 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 R v Smith (Morgan) following the previous Privy Council decision in Luc Thiet Thuan.
1. Attorney General for Jersey v Holley  3 WLR 29 Following on from this case the Court of Appeal has accepted that the Privy Council did state the law on provocation applicable to England and Wales and has applied the decision in three subsequent cases and thereby departing from the House of Lords precedent in R v Smith (Morgan).