Critically evaluate the defence of provocation
Provocation is a specific defence, only available for murder, and is defined under s3 of the homicide Act 1957. The definition of provocation is ‘where someone is charged with murder and there is evidence from which the Jury can find he was provoked by things said, done or both, so that he lost his self-control and that a reasonable man would have behaved as the defendant did in the circumstances, the defendant may be convicted of manslaughter not murder.’
There are 2 tests which are broken down into 3 elements. The subjective test asks ‘was there provocation?’, and ‘Did the defendant lose his/her self control?’. The courts must establish ‘what can amount to provocation’. The homicide Act 1957 says that things said, done or both can amount to provocation, R V Doughty, a baby crying can amount to provocation. The case of R V Duffy, said that provocation had to be done by the victim to the defendant but the HA 1957 does not have this requirement. Provocation does not have to be the last act done/ word said before the killing. Cumulative provocation is allowed R V Humphries, the defendant had suffered a deprived childhood, developed anti-social behaviour and entered prostitution. Boyfriend taunted defendant after she cut her wrists. Defendant stabbed victim. Conviction was quashed on grounds of the entire history of the relationship having to be taken into account.
Loss of self control asks was this due to the provocation? R V Duffy 1949, loss of self control must be sudden and temporary, so that the defendant is no longer the master of his own mind. A similar view was taken in cases such as R V Ibrams and Gregory, and R V Ahluwalia, where the CofA pointed out that the requirement was the reaction to the provocation had to be sudden but immediate, the longer the delay between the provocation and reaction the less likely the courts are to see it as a loss of control, but more likely to be viewed as pre meditated.
The objective test asks would the reasonable man have responded in the same way as the defendant. R V Camplin 1978, 15 year old boy who was sexually abused killed abuser after taunted about the abuse. House of Lords said the reasonable man should be a person the same age, and sex as the defendant and sharing any other relevant characteristics, that the Jury believe affected the gravity of the provocation. Other relevant characteristics include lower mental age than chronological age R V Raven, attention seeking and maturity problems R V Humphries, and Eccentric and obsessive behaviour R V Dryden. R V Newell says a charact6eristic must be something that is permanent and to be relevant there has to be some connection between the characteristic and provocation, R V Morhall held that the characteristic must be the object of the taunt.
The defence of provocation is criticised for several reasons. The concept of a slow burn is criticised because the defence had developed from traditional male ideas of reacting instantly to violence with further violence. Therefore, the defence struggles when women kill, because the response of women is compared with the response of men. R V Ahluwalia, opened the door of change, however courts must be careful, as women who suffer domestic violence cannot be given a licence to kill.
The defence is not a complete defence; if the plea is successful the defendant is acquitted of murder but convicted of manslaughter. However, this gives Judges discretion in sentencing and in t5aking circumstances of case facts into account may not impose a prison term.
The courts cannot compare killings under provocation with killing in cold blood. This is reflected in sentencing, this is reflected in sentencing where defendants may receive the mandatory life sentence.
The defence is difficult for Juries because they have to consider how a mentally impaired person.