In
English law, provocation was a mitigatory
defence which applied only to murder. In closing decades, it amounted to proving a reasonable total loss of control as a response to another's objectively provocative conduct sufficient to convert what would otherwise have been murder into
manslaughter. It was abolished on 4 October 2010 by section 56(1) of the
Coroners and Justice Act 2009, replaced by the superseding—and more precisely worded—loss of control defence. Ironically, English law considers the act of intentionally provoking another person to criminal action to be a crime in and of itself under the charge of
Fear or provocation of violence. Until 1957, the
common law which governed this offense had established some non-exhaustive categories or examples which constituted provocation, including: • a gross insult followed by assault • witnessing an attack on a relative or friend • witnessing an Englishman being unlawfully deprived of his liberty • a husband discovering his wife in the act of
adultery; and • possibly a father discovering someone committing
sodomy on his son (
R v Fisher (1837)) Under section 3 of the
Homicide Act 1957, provocation was defined more narrowly as two questions to be decided by the jury: whether "the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control," and whether "the provocation was enough to make a reasonable man do as he did". The Act provided that provocation could be by anything done or said without it having to be an illegal act and the provoker and the deceased could be third parties. If the accused was provoked, who provoked him was irrelevant. This section of the Act was superseded by sections 54 and 55 of the Coroners and Justice Act 2009 when they came into force on 4 October 2010.
The factual test The first question before the jury was a subjective test and a pure question of fact, i.e. the evidence had to show that the defendant actually lost his self-control. In
R v Duffy, Devlin J. said thatUnder normal circumstances, the response to the provocation had to be almost immediate retaliation. If there was a "cooling-off" period, the court would find that the accused should have regained control, making all subsequent actions intentional and therefore murder. In
R v Ibrams & Gregory the defendants had been terrorised and bullied by the deceased over a period of time so devised a plan to attack him. There was no evidence of a sudden and temporary loss of self-control as required by
Duffy. Even the period of time to fetch a weapon could be sufficient to cool off. In
R v Thornton, a woman suffering from "
battered woman syndrome" went to the kitchen, took and sharpened a carving knife, and returned to stab her husband. The appeal referred to s3 which required the jury to have regard to "everything both said and done according to the effect which in their opinion it would have on a reasonable man". The appellant argued that instead of considering the final provocation, the jury should have considered the events over the years leading up to the killing. Beldam LJ rejected this, saying:But in
R v Thornton (No 2) after considering new medical evidence, a retrial was ordered and the defendant was convicted of manslaughter on the ground of
diminished responsibility. Similarly, in
R v Ahluwalia a retrial was ordered. The defendant had poured petrol over her husband and set it alight, causing burns from which he died. When the defence of diminished responsibility on the ground of "battered woman syndrome" was put, she was convicted of manslaughter. In
R v Humphreys, the defendant finally lost self-control after years of abuse and stabbed her partner. She pleaded that the final words had been the straw that broke the camel's back. The conviction for murder was held unsafe because the accused's psychiatric condition stemming from the abuse should have been attributed to the
reasonable person when the jury considered the application of the objective test.
The reasonable person test If the jury was satisfied that the defendant was provoked, the test was whether a reasonable person would have acted as the defendant did – an objective test. It was held in
Camplin that the accused's age and sex could be attributed to the reasonable man when the jury considered the defendant's power of self-control. Further, that
any characteristic of the accused could be included which the jury considered may affect the gravity of the provocation. Therefore, the reasonable person had to be endowed with the particular characteristics of the accused. In a number of leading cases,
Morhall and
Luc Thiet Thuan v R, it was held that the judge should direct the jury to consider whether an ordinary person with ordinary powers of self-control would have reacted to the provocation as the defendant did and that no allowance should be given for any characteristics that might have made him or her more volatile than the ordinary person. These decisions acknowledged, however, that, in addition to age and sex, characteristics which affected the gravity of the provocation to the defendant should be taken into account. In
R v Smith the defendant was charged with murder and relied on the defence of provocation, alleging that he had been suffering from serious
clinical depression and had been so provoked by the deceased as to lose his self-control. Lord Hoffman held that the test was whether the jury thought 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. Furthermore, the House held, by a majority, that no distinction should be drawn, when attributing characteristics for the purposes of the objective part of the test imposed by s3 Homicide Act, between their relevance to the gravity of the provocation to a reasonable man and his reaction to it. Account could be taken of a relevant characteristic in relation to the accused's power of self-control, whether or not the characteristic was the object of the provocation. But in ''HM's AG for Jersey v Holley
the Privy Council regarded Smith'' as wrongly decided, interpreting the Act as setting a purely objective standard. Thus, although the accused's characteristics were to be taken into account when assessing the gravity of the provocation, the standard of self-control to be expected was invariable except for the accused's age and sex. The defendant and the deceased both suffered from chronic
alcoholism and had a violent and abusive relationship. The evidence was that the deceased was drunk and taunted him by telling him that she had had sex with another man. The defendant then struck the deceased with an axe which was an accident of availability. Psychiatric evidence was that his consumption of alcohol was involuntary and that he suffered from a number of other psychiatric conditions which, independently of the effects of the alcohol, might have caused the loss of self-control and induced him to kill. Lord Nicholls said:In
R v Faqir Mohammed a cultured Asian man caught a young man leaving his daughter's bedroom window. He immediately killed his daughter by repeatedly stabbing her with a knife. Following the death of his wife five years earlier he suffered from depression, and there was credible evidence that he had a violent temperament and had repeatedly been violent towards his daughters and his wife. Despite the fact that a
Privy Council ratio decidendi is only persuasive authority, the Court of Appeal applied it and reinstated the law before
Smith. Scott Baker LJ said:In
R v James the court again considered the relationship between the Privy Council decision in
Holley and
Smith. In his commentary on
Holley, Ashworth (2005) said:Viewing this situation as exceptional, Phillips CJ accepted that the Privy Council decision had indeed overruled the House of Lords, recognising the error that the Lords had made in their earlier interpretation of the law. Rather than follow the strict rules of precedent and send the issue back to the Lords for clarification, the Court of Appeal accepted the
de facto situation and recognised
Holley as the binding precedent.
Self-induced provocation In 1973 the
Privy Council held in
Edwards v R that a
blackmailer could not rely on the predictable results of his demands for money when his victim attacked him (a policy decision to prevent a criminal from relying on his own wrongdoing as the cause of the subsequent death). In
R v Johnson, the defendant had become involved in an escalating argument with the deceased and his female companion. When the victim threatened the defendant with a beer glass, the defendant fatally stabbed him with a knife. The judge
instructed the jury that they were open to find the threatening situation had been self-induced, in which case provocation would not be open as a defence. The Court of Appeal held that section 3 of the Homicide Act 1957 provided that anything could amount to provocation, including responsive actions provoked by the defendant. It applied the defence (duly substituting the conviction for that of manslaughter).
Loss of control defence The loss of control defence was introduced by the Coroners and Justice Act 2009 as a replacement to provocation as a partial defence to murder in the jurisdiction of
England and Wales. "Loss of control" in the Act is requires multiple aspects to be met, and with a number of listed exceptions that can render the defence inapplicable. In particular, for a defendant to rely on the defence, there must either be "fear of serious violence", or the combination of "circumstances of an extremely grave character" and a "justifiable sense of being seriously wronged". Revenge for sexual infidelity is specifically ruled out as a qualifying trigger, although
R v Clinton has interpreted this exception as applying only to cases where sexual infidelity is the
single cause of loss of control. The loss of control defence does not exonerate the person who loses control; instead it downgrades the charge for that person from murder to
manslaughter, and does not change the nature of the offence for other perpetrators who may have been involved. The new defense removed the "sudden" requirement, as it wanted to cover battered women who lose control over a long period. However, it will probably not succeed in achieving that aim. "Loss of control" specifically excludes self-induced provocation in section 55, subsection 6, a) in terms of "fear of serious violence" and b) in terms of "a sense of being seriously wronged by a thing done or said " when the "qualifying trigger" was incited "for the purpose of providing an excuse to use violence".
Sentencing The
Sentencing Council set out a guideline for manslaughter (substituted for charge/finding of murder) by reason of an accepted defence of loss of control. It came in to effect on 1 November 2018. • The recommended "offence range" is 3 – 20 years custody. • The maximum is life imprisonment. • This is a serious specified offence for the purposes of sections 224 and 225(2) (life sentences for serious offences) of the Criminal Justice Act 2003. • This is an offence listed in Part 1 of Schedule 15B for the purposes of section 224A (life sentence for a second listed offence) and section 226A (extended sentence for certain violent, sexual or terrorism offences) of the Criminal Justice Act 2003. • The type of manslaughter (and thereby the appropriate guideline) should have been identified prior to sentence. A nine-stage formula is to be used, for ideal legal compliance. Stage 1, culpability, will set the sentencing "starting point". Notably the fourth stage is reduction for guilty pleas (such as by a
plea bargain); the fifth is dangerousness. If the actions and/or psychological reports are adverse they may well meet the criteria in Chapter 5 of Part 12 of the
Criminal Justice Act 2003 by which it would be appropriate to impose a life sentence (section 224A or section 225) or an extended sentence (section 226A). == Other common-law countries ==