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Homicide II Voluntary Manslaughter

HOMICIDE II: Voluntary Manslaughter


Provocation
Provocation is a defence only to murder, and if successful the defendant will still be guilty of
manslaughter.
The defendant must show:
(i)
he/she was provoked by something said or done to lose his/her self-control and
(ii)
a reasonable person would have done the same thing
Provocation is a defence only to murder, and if successful the defendant will still be guilty of
manslaughter. For other offences, such as assaults, the fact that the defendant was
provoked into attacking the victim may be relevant in deciding the appropriate sentence,
but it does not provide a defence. Even in a case of homicide it is crucial to appreciate that
provocation should be considered only if the jury are sure that the defendant is otherwise
guilty of murder. If there is evidence from the facts of the case that the defendant was
provoked then the prosecution carries the burden of proving that the defence is not made
out beyond all reasonable doubt.
Although provocation is a common law partial defence, its operation is governed by
Homicide Act 1957, Section 3:
Where on a charge of murder there is evidence on which the jury can find that the person
charged was provoked (whether by things done or by things said or by both together) to lose
his self-control, the question whether the provocation was enough to make a reasonable
man do as he did shall be left to be determined by the jury; and in determining that
question the jury shall take into account everything both done and said according to the
effect which, in their opinion, it would have on a reasonable man.
As is indicated by section 3, there are two limbs to the defense:
(1) The defendant must show that he/she was provoked to lose his or her self-control
and kill by something said or done; and that
(2) A reasonable person would have been provoked to lose is or her self control and do
as the defendant did.
It is important to appreciate that both of these requirements must be satisfied. If an
unusually calm defendant facing substantial provocation did not in fact lose his self-control
even though a reasonable person would have done, the defense is not available.
S3 was supposed to be supplemental and alter the common law; but not completely replace it
S3 remains the primary statutory provision relating to provocation
It is argued that provocation as a whole should be abolished; it is inappropriate and in practice has
too many ill effects.

The Rationale of a Defence of Provocation


AG for Jersey v Holley [2005] [A] humane concession to human infirmity and
imperfection.

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Homicide II Voluntary Manslaughter

Historically, the defence of provocation actually developed out of chance medley. It was thought that
the mens rea of murder might be undermined where there was a chance fight and it was from here
that the defence of provocation occurred. At this time it was only applicable to very specific
circumstances. Normally anger is not an excuse. There are those that question whether we should
have a defence of provocation in murder. In crime there is no concept of contributory negligence,
therefore the victim could not have got on a level what he deserved. The law excuses people who
get angry at something and kill themselves, it is questionable whether provocation operates fairly
especially to the victim. The victim is usually portrayed in a negative light because often at trail, you
find very unfortunate and stereotypical portrayal of victims to find any possible evidence of
provocation. If there is any evidence whatsoever for provocation, then the judge must leave it for the
jury to decide.
Celia Wells:
Provocation was less a generic class and more a series of recognized types of anger-based
killings which attracted the excusing eye of the law. A grossly insulting assault; an attack on
a kinsman or friend; the sight of an Englishman unlawfully deprived of his liberty; and
seeing a man in the act of adultery with ones wife: all came to be recognized as excused
killings. It does not require a rabid feminist to spot the gendered tenor of these examples
(loc. cit. supra p.87).
Morgan Smith [2000]
The traditional way in which judges attempt to deflect the jury from a perverse verdict is
to withdraw the issue. But s.3 was intended to deprive the judge of even this method of
control. The jury was to be sovereign and have the power in theory as well as in practice to
decide whether the objective element was satisfied.
Woolmington v DPP [1935]
This case made sure that it is for the prosecution to prove all the elements of the crime beyond
reasonable doubt and this includes disproving defences.

ELEMENTS OF PROVOCATION
Provocation is based upon two tests, both of which are subject to considerable
disagreement:
(1) Was D provoked to lose his self control by things done or said? (Subjective condition).
(2) Would a reasonable person have lost his self-control and acted as D acted? (Objective
condition).

The Subjective Condition


The defendant was provoked to lose his self-control and
kill
The need to show that the defendant was provoked to lose his self-control is a subjective
question. That is, it requires the jury to look into the mind of the defendant and ask
whether the defendant actually lost his self-control, rather than considering whether a

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Homicide II Voluntary Manslaughter

reasonable person would have lost his self-control. The issue is not, however,
straightforward and there are a number of matters which need to be addressed:

Something done or said


In the early development of provocation, only specific things would amount to provocation.
But gradually the defense broadened. Prior to section 3, words itself were not enough to
trigger provocation. The provocative trigger must be something said or done. Words or
deeds can amount to a provocation, but circumstances on their own cannot.
R v Acott [1997]
Lord Steyn stated, by way of example, that a person who lost his self-control due to slow
down of traffic caused by snow would not be able to use the defense. However, the
requirement has been interpreted liberally in some cases.
R v Doughty (1986)
It was assumed that the crying of a baby could constitute a provocative act; it was
something said or done.

Contexts, Statements, Acts and Circumstances


Circumstances on their own cannot amount to provocation.
It is not enough for the defendant just to show he lost his self-control. He must show he was
provoked by something into losing his self-control.
R v Acott [1997]
Details of Case -> The defendant killed his mother in a frenzied attack. There was clear
evidence that he had lost his self-control and killed, but there was no evidence of why that
had happened. It appears he had just suddenly flipped.
Held -> It was held that as there was no evidence of a provoking incident the judge was
right not to leave the defense of provocation to the jury.
A loss of self-control caused by fear, panic, sheer bad temper or circumstances (e.g. a slow
down of traffic due to snow) would not be enough.

The provocation need not be directed to the defendant, nor come


from the victim

Provocation is available even if the provocative act is not done by the victim. That said, it
will be hard to show that a reasonable person would have killed X in the face of provocation
from Y. Further, the defense is available even if the provocation is aimed at someone else
and the defendant loses his self-control. So if Jack shouted a racial insult at George, as a
result of which Georges wife, Nina, lose her self control and killed Jack, Nina could rely on
provocation.
Pearson (1992)
An older brother discovered that his younger brother had been abused by their father and
so helped his brother to kill the father. He was able to rely on provocation.
R v Davies [1975]
The provocation does not have to come from the victim themselves.

Blameworthiness

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There is no requirement that the provocative conduct has to be blameworthy. Although,


frequently in practice the provoking conduct is blameworthy.
R v Doughty (1986)
A baby was born, but 17 days later the father killed it. He claimed he was provoked because he
cried all night the previous night. This can be considered as provocative conduct, as the conduct does
NOT have to be blameworthy, therefore it should be left to the jury. Section 3 does not say that the
conduct has to be blameworthy, therefore even though the baby acted in an expected way, the
defence of whether this amounted to provocation was up to the jury.

Self-induced provocation

There is some dispute over whether the defense is available if the provocation is selfinduced. What would be the laws response if the defendant had racially insulted the victim
and in reply the victim had insulted the defendant, who lost his self-control and killed? In
other words would it be relevant that the defendants own acts had caused the provocative
words or acts? At one time the Privy Council argued that a defendant could not rely on
provocative conduct which was a foreseeable consequence of the defendants actions.
However this was rejected in Johnson.
R v Johnson [1989]
Even if the provocative acts were self-induced the defendant could still seek to use
provocation. But it would be up to the jury to decide whether a reasonable person would
react to that provocation in the way the defendant did. In fact, it would be rare that a jury
would decide that a reasonable person would respond to a self-induced provocation by
killing.
... we find it impossible to accept that the mere fact that a defendant caused a reaction in
others, which in turn led him to lose his self-control, should result in the issue of
provocation being kept outside the jury's consideration. Per Watkins L.J.

History and Provocation


The defendant must suffer a sudden and temporary loss of selfcontrol
The courts have insisted that provocation should not provide a defence to a defendant who
The controlling test, however remains in Duffy.
R v Duffy [1949]
Devlin J: Provocation is some act, or series of acts, ... 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 mind.Indeed, circumstances which induce a desire for revenge are
inconsistent with provocation, since the conscious formation of a desire for revenge means
that a person has had time to think, to reflect, and that would negative a sudden, temporary
loss of self-control which is of the essence of provocation....
The basis of the requirement that the defendant has suffered a sudden and temporary loss
of self-control is that if there is a gap in time between the provocation and the killing then
the law will assume that the defendant killed in anger, not in the heat of passion having lost
self-control.

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Slow Burn anger

The basis of the requirement that the defendant has suffered a sudden and temporary loss
of self-control has in recent years come under challenge, particularly in cases involving
battered women, where the courts have heard evidence that battered women may suffer a
slow burn reaction. This means that they may be provoked, but the anger builds up slowly
until suddenly there is an outburst, maybe some time after the provoking incident. The
psychological evidence on this point is that broadly speaking mens anger reactions are snap
whereas women are slow burn reactions. This led to a reconsideration of the requirement of a
sudden and temporary loss of self-control in the Ahluwahlia case.
R v Thornton [1992]
A woman was married to an alcoholic. Whilst he was drunk they had an argument. She sharpened a
knife and stabbed him. At the first trial they were very clear that the Duffy test still applied.
in cases of domestic violence which culminates in the death of a partner there is
frequently evidence given of provocative acts committed by the deceased in the past, for it is
in that context that the jury have to consider the accused's reaction. In every such case the
question for the jury is whether at the moment the fatal blow was struck the accused had
been deprived for that moment of the self-control which previously he she had been able to
exercise. The epithet "sudden and temporary" is one a jury are well able to understand...
Per Lord Taylor
R v Thornton (No. 2) [1996]
The CA put something of a gloss on this. The evidence of pre existing acts of abuse was relevant. A
relatively minor trigger incident may cause a loss of self control.
A jury may more readily find there was a sudden loss of control triggered by even a minor
incident, if the defendant has endured abuse over a period, on the last straw basis. Per
Lord Taylor C.J.
Ahluwahlia case [1992]
Details of Case -> Ahluwahlia was an Asian woman who had entered an arranged marriage
with her husband. She had suffered many years of violence and abuse from him. This
included an attempt to kill her. One evening the husband threatened to attack her. That
night, while he was asleep Ahluwahlia poured petrol over him and set it alight. The husband
died from the burns he received. At her trial the judge directed the jury that it had to be
shown that Ahluwalia had suffered a sudden and temporary loss of self-control. She
appealed, inter alia, on the ground that such a direction was incorrect.
Held -> Appeal allowed. Conviction quashed. Retrial ordered.
We accept that the subjective element in the defence of provocation would not as a matter
of law be negatived simply because of the delayed reaction in such cases, provided there was
at the time of the killing a sudden and temporary loss of self control caused by the alleged
provocation. However, the longer the delay and the stronger the evidence of deliberation on
the part of the defendant, the more likely it will be that the prosecution will negative
provocation
As the CA in Ahluwahlia made clear, the present law is that while it is still necessary to
show that the defendant suffered a loss of self-control as a result of a provocation, the fact
that there is a gap between the provocative incident and the killing the harder it will be to
show that there was a sudden and temporary loss of self-control and that this was caused
by the provocative incident.
This was reiterated in the Privy council in the case of

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Homicide II Voluntary Manslaughter

Luc Thiet Thuan v R [1996]


The person had a mental disease which caused him to get very angry on the slightest of provocation.
Therefore there had to be something said or done that leads the defendant to have a temporary loss of
control.
... it may be open to a defendant to establish provocation in circumstances in which the act
of the deceased, though relatively unprovocative if taken in isolation, was the last of a series
of acts which finally provoked the loss of self-control by the defendant and so precipitated
his extreme reaction which led to the death of the deceased. Per Lord Goff at 1047.

Retaining Control
The provocation must lead someone to actually lose control. In understanding the meaning of
loss of self-control it is important to recall that to be guilty of murder the defendant must
have intended to kill or cause GBH. This means that loss of self-control cannot require the
defendant has completely lost control of his or her actions or was so angry that he or she
was not aware of what they were doing, because if either of these were true then the
defendant would not have the mens rea or actus reus of murder.
Richens (1993)
The CA stressed that it is not necessary to show that there was a complete loss of selfcontrol, in the sense that the defendant did not know what he was doing, or was not able to
stop himself acting in the way he did. It was sufficient that the defendant was unable to
restrain himself.
R v Cocker [1989]
The defendant had been looking after his incurably ill wife for over a decade. She had asked him to
kill her. One night she continually woke him up and said he was a bad husband for not killing her so
he did. He admitted he did not actually lose control, therefore he couldnt rely on provocation.

The Objective Condition


There are two further tests that need to be looked into:
1. Would the reasonable person have lost control? And
2. Would the reasonable person have reacted as the defendant did?
The objective part of the test requires a level of control; it is an external standard so people cant rely
on their personal differences that they are particularly angry.
Why would a reasonable man kill? It is very difficult to determine what is actually the reasonable
person, what characteristics do they have. Prior to the 1967 act, the law was very strict.
Purpose of the reasonable man test
The public policy that underlay the adoption of the 'reasonable man' test in the common
law doctrine of provocation was to reduce the incidence of fatal violence by preventing a
person relying on his own exceptional pugnacity or excitability as an excuse for loss of selfcontrol. The rationale of the test may not be easy to reconcile in logic with more universal
propositions as to the mental element in crime. Nevertheless it has been preserved by the
1957 Act but falls to be applied now in the context of a law of provocation that is
significantly different from what it was before the Act was passed. Per Lord Diplock in
DPP v Camplin [1978]

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Would a reasonable person have acted as the defendant did?


In order to rely successfully on the defense of provocation it is not enough for the defendant
just to show that she lost her self-control. It must also be shown that a reasonable person
would have reacted to the provocation in the same way as the defendant. This objective
question is entirely one for the jury. The judge cannot withdraw the case from the jury on
the basis that no jury would sensibly decide that a reasonable person would have killed;
although the judge can withdraw the case from the jury on the basis that there was no
provocative act. For example, Doughty (1986), where a father killed his baby having been
provoked by crying, although the judge may have felt that no jury could decide that a
reasonable man would react in this way, he should not have withdrawn the issue from the
jury. It is for the jury, not the judge, to decide how the reasonable man would have reacted.
Clarke (1991)
The jury have to decide whether the reasonable person would have done as the defendant
did. This was interpreted rather literally in this case, where the CA had to deal with a
defendant who strangled the victim and then electrocuted her. The CA took the view that it
must be shown not just that the reasonable person would have killed, but that he would
have killed the victim in the way in which the defendant did and indeed would have
disposed of the corpse in the same way.
Van Dongen (2005)
The Court held that even if a reasonable person might have reacted violently he would not
have given the victim 15 head wounds, most of them while the victim was defenseless on the
ground.
This objective limb of the test has proved problematic for the law and a number of issues
have to be addressed:
Misperceived provocation
The jury should consider how the reasonable person would react to the provocation as it
was understood by the defendant. If a defendant mishears what was said or misinterprets
what was done and believes he has been insulted, he is to be judged on the insult he
believed was made, not the words actually used or deeds actually done. There is little case
law on this, but the little there is suggests that even if a defendant is unreasonable in his
misinterpretation he is still to be judged on the facts as he believed them to be.
History
Another important point in assessing the nature of the provocative act is that the jury must
consider the provocation in the light of the defendants history. This means that what might
appear to be a minor act of provocation, when seen in the light of the history of the event, is
deeply insulting. Sometimes the courts have referred to the concept of cumulative
provocation, where a long series of incidents, each minor in itself, causes the defendant to
lose her self-control after being provoked by the last straw.

The Reasonable Man and the Characteristics of the Accused

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A particularly troublesome issue for the courts has been whether the reasonable person
should be endowed with any characteristics of the defendant. Before looking at the present
law it is useful to consider why the law does not take the easy approach of just considering
how a straightforward normal person would have reacted to the provocation.
Bedder v DPP [1954]
An impotent man visited a prostitute. The prostitute taunted him about his impotence. He
lost his self-control and killed her. The HL explained the jury should consider how a
reasonable man would react to the taunts, and explained that the jury should consider how
a reasonable man would react to the taunts, and that the reasonable man would not be
regarded as impotent. Subsequently it has been accepted that this makes little sense, and
that the decision is therefore wrong. The jury can make sense of the provocation only if a
reasonable person is endowed with the characteristics which made the provocation
provocative. So in Bedder it makes no sense to consider how a potent man would react to
being called impotent; rather the jury must consider how an impotent man would react to
being taunted about his condition. Similarly if a racial insult is uttered it is only sensible to
consider how a person of the defendants race would react to that insult.
DPP v Camplin [1978]
A 15 year old boy was raped by the victim, who then taunted the boy. The HL accepted the
argument that a 15 year old could not be expected to possess the same level of self-control
as an adult.
Per Lord Diplock: ... for the purposes of the law of provocation the "reasonable man" has
never been confined to the adult male. It means an ordinary person of either sex, not
exceptionally excitable or pugnacious, but possessed of such powers of self-control as
everyone is entitled to expect that his fellow citizens will exercise in society as it is today ...
the reasonable man referred to in the question is a person having the power of self-control
to be expected of an ordinary person of the sex and age of the accused, but in other respects
sharing such of the accused's characteristics as they think would affect the gravity of the
provocation to him....
To taunt a person because of his race, his physical infirmities or some shameful incident
in his past may well be considered by the jury to be more offensive to the person addressed,
however equable his temperament, if the facts on which the taunt is founded are true than it
would be if they were not. It would stultify much of the mitigation of the previous
harshness of the common law in ruling out verbal provocation as capable of reducing
murder to manslaughter if the jury could not take into consideration all those factors which
in their opinion would affect the gravity of taunts and insults when applied to the person to
whom they are addressed.
These two cases reveal why the courts have found they cannot take the simple approach
and ask simply how would the reasonable person react: we need to give the characteristics
of the accused to the reasonable person, in order:
1) To make a realistic assessment of what would be a reasonable reacted to the
provocation; and
2) To take account of some characteristics of the accused which provide a good
explanation of why he could not live up to the standard of the reasonable person.
The court have been deeply divided as to which characteristics of the defendant, if any, can
be taken into account in deciding whether the reasonable person would have acted as the
defendant did. Two main views have been developed in case law:

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1) The Camplin view


Lord Diplock in DPP v Camplin held: a proper direction to a jury should state that the
reasonable man referred to in the question is a person having the power of self-control to be
expected of an ordinary person of the sex and age of the accused, but in other respects
sharing such of the accuseds characteristics as they think would affect the gravity of the
provocation to him; and that the question is not merely whether such a person would in like
circumstances to be provoked to lose his self-control but also whether he would react to the
provocation as the accused did.
This test drew a distinction between characteristics of the accused which were relevant
when considering the gravity of the provocation (any characteristic which makes the
provocation graver for the defendant) and those characteristics which affect the level of selfcontrol (only age and sex). The defendant was permitted to claim that because of his or her
characteristics the provocation was more provocative than it would have been otherwise.
But the defendant is not permitted to claim that because of his or her characteristics he was
expected to exercise only a lower degree of self-control than an ordinary person. This may
be made clearly by considering the facts of Roberts.
Roberts (1990)
Roberts was a pre-lingually deaf man who was taunted by others who insulted his
intelligence. He was permitted to introduce evidence that deaf people find assumptions that
because they are deaf they are stupid particularly provocative, but he was not permitted to
introduce evidence that purported to show that pre-lingually dead people have lower levels
of self-control than non-deaf people.
The distinction between allowing characteristics that affect the degree of provocation and
characteristics that affect the level of self-control proved problematic, most notably in
Dryden (1995) where the defendant was obsessive and eccentric. The CA following Camplin,
directed the jury should consider how a reasonable person who was obsessive and eccentric
but with ordinary powers of self-control would react to the provocation. You can imagine
the confusion a jury would feel having to apply such a direction. Although in 1995 the HL
had confirmed the Camplin approach in Morhall, the CA had been increasingly reluctant to
follow it.
R v Morhall [1995]
M was a glue sniffer. The deceased along with Ms girlfriend had criticised him for this. The
deceased left to get some food and came back and criticised him again and head butted him. M hit
him on the head with a hammer. Deceased criticised him again. As a result M stabbed him. HL asked
whether the fact that M was a glue sniffer could be relevant to question of provocation. If his friends
had called him a glue sniffer, but he wasnt one, it wouldnt have affected him. Therefore the fact
that he was a glue sniffer did matter.
Per Lord Goff: The Court of Appeal felt that the appellants addiction to glue sniffing
should be excluded because it was a characteristic which was repugnant to the concept of a
reasonable man. It seems to me, with all respect, that this conclusion follows from a
misunderstanding of the function of the so-called reasonable person test in this context. In
truth the expression reasonable man or reasonable person in this context can lead to
misunderstandingThis is because the reasonable person test is concerned not with
ratiocination, nor with the reasonable man whom we know so well in the law of
negligencenor with reasonable conduct generally. The function of the test is only to

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introduce, as a matter of policy, a standard of self-control which has to be complied with if


provocation is to be established at law.in truth, the mere fact that a characteristic of the
defendant is discreditable does not exclude it from consideration Of course glue-sniffing
(or solvent abuse), like indulgence in alcohol or the taking of drugs, can give rise to a special
problem in this context, because it may arise in more than one way.a distinction may have
to be drawn between two different situations. The first occurs where the defendant is
taunted with his addiction (for example, he is an alcoholic of a drug addict, or a gluesniffer), or even with having been intoxicated (from any cause) on a previous occasion. In
such a case, however discreditable such a condition may be, it may where relevant be taken
into account as going to the gravity of the provocation. The second is the simple fact of the
defendant being intoxicated-being drunk or high with drugs or glue-at the relevant time,
which may not be so taken into account because that, like displaying a lack of ordinary selfcontrol, is excluded as a matter of policy.
2) The Smith view
R v Morgan Smith [2000]
The issue went to the HL again in Smith and a major reconsideration of the issue was
undertaken.
The HL, by a majority of 3 to 2, decided that it was for the jury to decide which
characteristics of the defendant could be attached to the reasonable person.
HL said factors concerning the ability to maintain self control can at times be relevant, therefore
depression could be relevant. Battered women syndrome could also be relevant. If it meant that
the person had a lower standard of self control, then the jury ought to be able to take this into
account into whether the defendant acted reasonably. HL is trying to be helpful to those who
have a lower standard of self control, so they would be judged against standards they could fulfil.
Where someone has some sort of mental problem that affects their responsibility there is also the
defence of diminished responsibility. MS had raised a defence of diminished responsibility
which had been rejected, as he cant get his depression and alcoholism in through the back door.
So, in that case, where a defendant suffered from a depressive illness the jury could ask
how a reasonable person suffering from the mental illness would react.
Their Lordships therefore rejected the distinction between characteristics which would
affect the gravity of the provocation and characteristics which could affect the level of
self-control expected.
Indeed Lord Steyn suggested that it might be easiest for the jury to forget about the
reasonable person altogether and ask whether the defendant had exercised the degree
of self-control to be expected of someone in his situation?
The approach of the HL in Smith, then, was much more subjective than that in the
Camplin test.
But notice it was not totally subjective. It was still open for a jury to decide that some
characteristics of the defendant would not be relevant.
No doubt a jury would be reluctant to consider the defendants extreme possessiveness
towards his girlfriend or his intoxication as relevant factors. Further, even considering
all of his characteristics, a jury may still conclude that the defendant could have been
expected to control himself.
Difficulties with the majority approach. Although it looks like a sensible decision it is
questionable whether in fact the legislation intended this and whether it would work well. How
are the jury meant to apply this test? How are they meant to determine how the reasonable
alcoholic depressive would have reacted? Although in later cases the Privy Council have said

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these problems are exaggerated, how do they know this? They said this decision wasnt
consistent with Marhall, it was. Marhall won with a majority.
Per Lord Hoffmann (for the majority):
It follows, in my opinion, that it would not be consistent with section 3 for the judge to tell
the jury as a matter of law that they should ignore any factor or characteristic of the accused
in deciding whether the objective element of provocation had been satisfied. That would be
to trespass upon their province. In a case in which the jury might consider that only by
virtue of that characteristic was the act in question sufficiently provocative, the effect of
such a direction would be to withdraw the issue of provocation altogether and this would be
contrary to the terms of section 3.

In my opinion, therefore, judges should not be required to describe the objective element in
the provocation defence by reference to a reasonable man, with or without attribution of
personal characteristics. They may instead find it more helpful to explain in simple
language the principles of the doctrine of provocation... The jury must think 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. This is entirely a question for the
jury. In deciding what should count as a sufficient excuse, they have to apply what they
consider to be appropriate standards of behaviour; on the one hand making allowance for
human nature and the power of the emotions but, on the other hand, not allowing someone
to rely upon his own violent disposition.

The general principle is that the same standards of behaviour are expected of everyone,
regardless of their individual psychological make-up. In most cases, nothing more will need
to be said. But the jury should in an appropriate case be told, in whatever language will best
convey the distinction, that this is a principle and not a rigid rule. It may sometimes have to
yield to a more important principle, which is to do justice in the particular case. So the jury
may think that there was some characteristic of the accused, whether temporary or
permanent, which affected the degree of control which society could reasonably have
expected of him and which it would be unjust not to take into account. If the jury take this
view, they are at liberty to give effect to it.
Attorney General for Jersey v Holley [2005]
The Privy Council is made up of the same people as Lords. However, the Privy Council law is
persuasive rather than binding on the lower courts. The Privy Council sat in a special expanded panel
of 9. They expressly said this appeal was to resolve the conflict of Marhall.
The objective standard of self control is the standard set by common law to a reasonable man. There
were problems with the majority judgement in Morgan v Smith. In MS they tried to create a looser
test. But the Privy Council said that is not what the statute said. Marhall was reasserted. Although the
HL decision is binding, do we listen to the Privy Council or HL? They are able to take the Privy
Council view over HL because of the expanded panel.
The case rejected the approach taken by the HL in Smith and preferred the Camplin
approach. The CA in Mohammed (2005) and James (2006) has accepted that Holley
represents the current law.
Details of Case -> Dennis Holley was a chronic alcoholic. While under the influence
of drink he killed his girlfriend and was subsequently charged with her murder. At

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his trial he sought to rely on the law of provocation. His case was heard under the
law of Jersey where the law on provocation was identical to that in England. The
judge, in directing the jury, told them that drunkenness that rendered a defendant
more susceptible to being provoked was not a factor they could take into account in
deciding how a reasonable person would have reacted to a provocation of that
gravity.
Lord Nicholls said that this appealis concerned to resolve [the conflict between
Moorhall and Smith] and clarify definitively the present state of English law, and
hence Jersey law, on this important subject.
... The objective standard of self-control is the standard set by the common law and, since
1957, by the statutory reference to a reasonable man. It is of general application. Inherent
in the use of this prescribed standard as a uniform standard applicable to all defendants is
the possibility that an individual defendant may be temperamentally unable to achieve this
standard.
Taking into account the age and sex of a defendant, as mentioned in Camplin, is not an
exception to this uniform approach. The powers of self-control possessed by ordinary
people vary according to their age and, more doubtfully, their sex. These features are to be
contrasted with abnormalities, that is, features not found in a person having ordinary
powers of self-control. The former are relevant when identifying and applying the objective
standard of self-control, the latter are not.
For their Lordships in the majority, there was one particular obstacle to the majority
judgment in Morgan Smith:
... the majority view [in Morgan Smith] does represent a departure from the law as
declared in section 3 of the Homicide Act 1957. It involves a significant relaxation of the
uniform, objective standard adopted by Parliament. Under the statute the sufficiency of the
provocation (whether the provocation was enough to make a reasonable man do as [the
defendant] did) is to be judged by one standard, not a standard which varies from
defendant to defendant. Whether the provocative act or words and the defendants response
met the ordinary person standard prescribed by the statute is the question the jury must
consider, not the altogether looser question of whether, having regard to all the
circumstances, the jury consider the loss of self-control was sufficiently excusable. The
statute does not leave each jury free to set whatever standard they consider appropriate in
the circumstances by which to judge whether the defendants conduct is excusable. On
this short ground their Lordships, respectfully but firmly, consider the majority view
expressed in the Morgan Smith case is erroneous.
Hence the distinction drawn in Moorhall was reasserted.
The Privy Council in Holley have, therefore returned to the view in Camplin. A defendants
characteristics can be relevant in assessing the gravity of the provocation, but not as
affecting the level of self-control.

The future of provocation


R v James; R v Karimi [2006] and R v Faqir Mohammed [2005]
All cases that took into consideration Holley

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Mohammed (2005)
A father killed his daughter. The father was described as a strict, angry, devout Muslim,
who lost his self-control and discovering that his daughter was seeing a man. The CA
explained that the defendants temperament was relevant in assessing the gravity of the
provocation: it was more provocative for a strict, devout Muslim father to discover his
daughter was dating, than for a placid non-religious father. But his temperament could not
be taken into account in assessing the level of self-control expected of someone facing a
provocation of that gravity. His age and sex were the only factors that could be considered
as affecting the degree of self-control expected.
Holley:
25. Lord Steyn instanced cases of women who are more prone to lose their self-control
because they are suffering from postnatal depression, or battered woman syndrome,
or a personality disorder. Lord Steyn suggested that, on the majority view of the law
expressed in that case, in those three instances the judge would have to direct the jury
that on the defence of provocation the evidence of the womans condition was
admissible on the first and subjective inquiry but not on the second and objective
inquiry. Their Lordships respectfully differ. This is not wholly correct. As explained
above, the evidence of the womans condition may be relevant on two issues: whether
she lost her self-control, and the gravity of the provocation for her. The jury will then
decide whether in their opinion, having regard to the actual provocation and their view
of its gravity for the defendant, a woman of her age having ordinary power of selfcontrol might have done what the defendant did. More importantly, in each of these
three cases the defendant will in principle have available to her the defence of
diminished responsibility. The potential availability of this defence in these cases
underlines the importance of not viewing the defence of provocation in isolation from
the defence of diminished responsibility. These two defences must be read together to
obtain an overall, balanced view of the law in this field.

Reform
Partial Defences to Murder (2004)
1.13 that the principles which should govern a reformed partial defence of provocation are:
1) unlawful homicide that would otherwise be murder should instead be manslaughter if:
(a) the defendant acted in response to
i. gross provocation (meaning words or conduct or a combination of words and conduct
which caused the defendant to have a justifiable sense of being seriously wronged); or
ii. fear of serious violence towards the defendant or another; or
iii. a combination of (a) and (b);
and
(b) a person of the defendants age and of ordinary temperament, i.e. ordinary tolerance
and self-restraint, in the circumstances of the defendant might have reacted in the same or
a similar way.

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2) In deciding whether a person of ordinary temperament in the circumstances of the


defendant might have acted in the same or a similar way, the court should take into account
the defendants age and all the circumstances of the defendant other than matters whose
only relevance to the defendants conduct is that they bear simply on his or her general
capacity for self-control.
3) The partial defence should not apply where
(a) the provocation was incited by the defendant for the purpose of providing an excuse to
use violence, or
(b) the defendant acted in considered desire for revenge.
4) A person should not be treated as having acted in considered desire for revenge if he or
she acted in fear of serious violence merely because he or she was also angry towards the
deceased for the conduct which engendered that fear.
5) The partial defence should not apply to a defendant who kills or takes part in the killing
of another person under duress of threats by a third person.12
6) A judge should not be required to leave the defence to the jury unless there is evidence on
which a reasonable jury, properly directed, could conclude that it might apply.

Diminished Responsibility
Definition
Diminished responsibility is a defence only to murder and, if successful, reduces the charge
to manslaughter.
Diminished responsibility: the defendant must show that he or she suffered from:
(i)
an abnormality of mind
(ii)
arising from
a) an arrested or retarded development of the mind; or
b) an inherent cause: or
c) an injury or disease;
(iii) which substantially impaired the defendants responsibility for his actions
Diminished responsibility is a defence only to murder. Even then it is only a partial defence.
If successfully raised the accused will be acquitted of murder, but convicted of
manslaughter. The significance of this is that on sentencing for manslaughter the judge has
a discretion as to the appropriate sentence, while for murder only the life sentence can be
imposed.
Diminished responsibility is defined in the Homicide Act 1957, section 2(1):
Where a person kills or is a party to the killing of another, he shall not be convicted of
murder if he was suffering from such abnormality of mind (whether arising from a
condition of arrested or retarded development of mind or any inherent causes or induced
by disease or injury) as substantially impaired his mental responsibility for his acts and
omissions in doing or being a party to the killing.

Burden of proof

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It should be stressed that if the defendant wishes to raise the defence of diminished
responsibility the burden of proof of establishing the defence is on him, but only on a
balance of probabilities. This has been held to be consistent with Article 6(2) of the
European Convention on Human Rights because the prosecution is required to prove the
elements of murder and the burden on the defendant of raising the defence of diminished
responsibility rests on him only if he wishes to raise it. Indeed the judge should not instruct
the jury about diminished responsibility unless the defendant has consented to it being
raised.
In practice if the defendant pleads guilty to manslaughter on the grounds of diminished
responsibility the prosecution will often accept such a plea and not seek to disprove it.
However, the CA in Vinagre (1979) has stated that the prosecution should do this only
where there is clear evidence of the defendants mental abnormality. If there is not the jury
should be presented with the evidence and be left to decide whether there is evidence of
diminished responsibility or whether the defendant must be convicted of murder.

Abnormality of mind

R v Byrne [1960]
Details of Case -> The appellant had strangled a girl in a youth hostel and horrifically
mutilated her dead body. Medical evidence showed that the appellant was a sexual
psychopath, which meant that he suffered from violent perverted sexual desires which he
found it difficult or impossible to control. This mental abnormality was said by expert
evidence not to amount to insanity, but was caused by an arrested or retarded development
of the mind or inherent causes. The issue for the CA was whether this amounted to
diminished responsibility.
Held -> Appeal allowed. Sentence confirmed.
Byrne makes clear, the notion of an abnormality of the mind involves considering whether
the defendants mind is sufficiently different from a normal mind to be classified as
abnormal. This appears to give the jury a wide discretion, although the defendants
abnormality must be established on the basis of medical evidence. What made Brynes mind
abnormal was not his lack of awareness of what he was doing, but that it was impossible or
very difficult for him to control his behaviour. The concept of diminished responsibility is
therefore quite different from insanity, which involves defendants who do not know what
they are doing or do not know that what they are doing is wrong. Although in Bryne Lord
Parker CJ used the term partial insanity, subsequently the CA has warned that in some
cases such a term may confuse the jury and should be avoided.

The cause of the abnormality of mind


It must be shown that the abnormality arose in one of three ways:
1) Arrested or retarded development of mind. To fall into this category the condition
must be permanent.
2) Any inherent causes. This covers all mental disorders which do not have an external
cause, and includes functional disorders. This category can be interpreted broadly.
In Vinagre (1979) the defendant was found to have killed his wife while suffering
from Othello syndrome, defined as morbid jealousy for which there was no cause.
3) Induced by disease or injury. This includes organic mental disorder and diseases of
the brain. A mental impairment caused by taking medically prescribed pills does not
constitute an injury. However the following have been regarded as falling within

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this category: battered womens syndrome; pre-menstrual syndrome; post-natal


depression; and stress produced by caring for a terminally ill relative.
The reason the mental abnormality must result from one of the listed causes is that
otherwise a defendant who was intoxicated or acting under a strong emotion (e.g. anger)
might be able to argue that he was suffering from an abnormality of the mind.

Substantial Impairment of Responsibility


It must be shown that the abnormality of mind substantially impaired the defendants
mental responsibility. When considering this question the jury should be bear in mind that
diminished responsibility is a partial defence; in other words that a defendant relying on it
is not claiming that he was blameless, because even if successful the defendant will still be
guilty of manslaughter. What needs to be shown is not necessarily that the defendant was
incapable of controlling his behaviour, but rather that it was substantially more difficult for
him to control his behaviour than it would have been for other people. In practice the jury
probably ask themselves whether, in the light of the defendants mental state, he does not
deserve the stigma of murder but rather of manslaughter. With this in mind it is
understandable that the jury were willing to convict the Yorkshire Ripper of murder,
despite strong evidence that he was a paranoid schizophrenic; but that juries are willing to
allow mercy killers, who appear to suffer from no particular mental abnormality, to use the
defence. This has led to criticism of diminished responsibility that it is too unpredictable,
and blurs medical and moral issues.

Diminished Responsibility and Intoxication


How should a jury deal with a case when at the time of the killing the defendant was both
suffering from an abnormality of mind and intoxicated?
R v Dietschmann (2003)
Details of Case -> Dietschmann was charged with the murder of Davies. At the time of the
killing he was drunk, but also suffered from an adjustment disorder caused by grief. At trial
he sought to rely on the defence of diminished responsibility. The trial judge directed the
jury that diminished responsibility could be relied upon as a defence only if the defendant
had satisfied them that if he had not taken drink he would have killed as he did, while
suffering from diminished responsibility. The jury convicted Dietschmann. The CA
dismissed the appellants appeal.
The HL took a simple approach to cases of drunken defendants who suffer from an
abnormality of mind and seek to rely on the defence of diminished responsibility: the jury
must simply ask whether, despite the drink, the mental abnormality of mind substantially
impaired the defendants mental responsibility.
As Lord Hutton noted, there are only two circumstances in which the effects of alcohol can
themselves be regarded as an abnormality of the mind:
1) Where the taking of alcohol has actually damaged the brain;
2) The defendants taking of alcohol was involuntary. So if the defendant is an alcoholic
and suffers irresistible cravings such that every drink of the drinking session was
involuntarily taken then it may be possible to claim that the effects of the drink are
an abnormality of the mind.

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Suicide Pacts
Homicide Act 1957, Section 4:
(1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a
suicide pact between him and another to kill the other or be a party to the other being
killed by a third person.
(2) Where it is shown that a person charged with the murder of another killed the other or
was a party to his being killed, it shall be for the defence to prove that the person charged
was acting in pursuance of a suicide pact between him and the other.
(3) For the purposes of this section suicide pact means a common agreement between two
or more persons having for its object the death of all of them, whether or not each is to take
his own life, but nothing done by a person who enters into a suicide pact shall be treated as
done by him in pursuance of the pact unless it is done while he has the settled intention of
dying in pursuance of the pact.
Section 4 of the Homicide Act 1957 provides that if the defendant kills another in pursuance
of a suicide pact he or she is guilty of manslaughter, not murder. The definition of a suicide
pact is found in section 4(3).
An example of a suicide pact is where a husband and wife agree that they will due together.
The plan is that the husband will shoot his wife and then turn the gun on himself. He kills
his wife, but a passer-by-stops the husband killing himself, or he loses his nerve and cannot
do it. In such a case the husband could face a charge of murdering his wife. If he could show
that he shot his wife in pursuance of a suicide pact, as defined above, then his charge would
be reduced to manslaughter. It should be noted that under section 2(1) of the Suicide Act
1961 there is an offence of aiding, abetting, counseling, or procuring the suicide of another,
and this carries a maximum penalty of fourteen years. So a person who helps another
commit a suicide as part of a suicide pact will simply be convicted of this offence, suicide
pact being a defense only to a charge of murder. The Law Comission has recommended the
abolition of the defense of suicide pact as part of their reform of the law of homicide.