Provocation
- The old law is the defence of provocation: provides a partial defence to murder only.
- Liability is reduced from murder to manslaughter
- It was abolished by the Coroners and Justice Act 2009, and replaced with the defence of 'loss of control'
- Homicide Act 1957 s 3: If something V said or did that would make a reasonable man do as D did, provocation could be a partial defence
- The 'things done or said' didn't need to be unlawful
- Doughty: D had a newborn child. D lost temper with child because the mother had to stay in bed and couldn't help, baby kept crying. Baby sustained severe head injuries. Crying child is irritating and draining but not provoking. CA said that in principle what V did didn't have to be wrongful, but D's actions had to be reasonable.
- Mere circumstances would not suffice - had to be something V did or said
- Defence became unduly complex
- Subjective test: was D provoked to lose his/her self-control?
- Objective test: would the reasonable man have done as D did? This caused the most difficulty.
- Loss of control had to be 'sudden and temporary' under Duffy (1949)
- Ibrams 1982 confirmed the Duffy approach: D seeing a woman, V (ex boyfriend) made threats to D and his girlfriend, broke into flat and held a court session with D and girlfriend. D approached police. D and girlfriend set up a honey trap for V and killed him five days after the last threat when he was asleep.
- Increasing evidence that it benefitted male feelings of anger: with women in abusive relationships, they didn't 'snap'; they'd built up the feeling of anger and prepared/armed themselves.
- Thornton 1992: Convicted of murder having killed her husband. D suffered violence after V's drinking. V accused D of being a prostitute. Argument followed and violence. D walked away and went into the kitchen as she'd been advised to leave and give him time. Picked up a knife because she thought he would attack her. D tried to calm him down and make amends and tell her he'd kill her in her sleep. D lifted the knife up and brought it down slowly thinking he would move it. V died. Provocation was left to the jury, unsuccessful. There had been a 'period of reflection' - revenge for calling her a whore?
- Ahluwalia 1992: D suffered violence from husband V. Backed up by GP who said she was hit in the head, bruised, broken fingers, held by throat, burnt, made two suicide attempts. V was also having an affair. D didn't want to split the family up because she had children: where would I go, what would I do etc. V threatened D again and hit her with an iron, then said he was leaving her. V went to bed, D poured petrol on V and threw candle in room. V set on fire and died. The 'cooling down period': cannot be sudden and temporary? CA said she could use the defence: sought to provide leeway for women in that situation.
- Who is the reasonable person?
- Bedder 1954: Produced confusion! D was 18 years old, hadn't been able to have sex with prostitute. Prostitute daunted D. D tried to strangle V. V fought back. D stabbed V. V died. Is this reasonable? You would not give reference to the person in question - not looking at their characteristics apart from sex and age - but an ordinary person. NOT "Do we think the reasonable impotent person would have reacted that way?"; but "Would the ordinary person have reacted that way?"
- Camplin: distinguish between: characteristics relating to D's power to exercise self-control (age and sex only; and characteristics that relate to the gravity of the provocation (any that affect the gravity of the provocation to D) - Bedder: would an 18 year old impotent male have reacted the way D did?
- Smith removed the 'reasonable person' from the law of provocation.
- R v Symmons 2009: followed the Privy Council and Holley rather than the House of Lords.
- Holley: would a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, have reacted in the same or in a similar way to D
Loss of control
The Current Law: Coroners and Justice Act 2009 s.54
(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if—
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
(3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint.
(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
Section 55 Meaning of “qualifying trigger” (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.
(4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which—
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
(5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6) In determining whether a loss of self-control had a qualifying trigger—
(a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.
(1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if—
(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,
(b) the loss of self-control had a qualifying trigger, and
(c) a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D.
(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden.
(3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint.
(4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge.
Section 55 Meaning of “qualifying trigger” (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies.
(3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person.
(4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which—
(a) constituted circumstances of an extremely grave character, and
(b) caused D to have a justifiable sense of being seriously wronged.
(5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4).
(6) In determining whether a loss of self-control had a qualifying trigger—
(a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence;
(b) a sense of being seriously wronged by a thing done or said is not justifiable if D incited the thing to be done or said for the purpose of providing an excuse to use violence;
(c) the fact that a thing done or said constituted sexual infidelity is to be disregarded.
- Current law looks at circumstances under s 54 which may allow for domestic abuse cases to be determined.
- Revenge is eliminated as a 'circumstance': clearly policy driven
- Section 55 makes it easier for people in domestic violence situations to rely on the defence: fear of serious violence (either physical or sexual).
- S 55(4) 'Extremely grave character' not defined at all; don't know if this is objective or subjective. 'Justifiable sense of being seriously wronged' - objective test. 'Extremely' and 'justifiable' - not applied to cases like Doughty (father killed baby for crying)
- S 55(6)(c) If a person kills another purely because they have been unfaithful, he or she will not be able to claim the partial defence. Specific section compared to the other vague ones.
- The government insisted upon the inclusion of this section as being necessary to ensure violent men couldn’t rely on this as a reason for having murdered their partner.
- No definition of sexual infidelity is provided - does it just apply to sexual intercourse or is it broader?
- Clinton 2012 seemingly watered down the intended effect of this provision.
- Clinton 2012: D found out that his wife had had an affair. She came over and saw that he had been looking at suicide websites and taunted him about it, saying it would be better if he were dead. She said she was leaving him and their children. He killed her.