Particularly Troublesome Issue for the Courts - Essay Example

Provocation The defence of provocation is applied only in a case of murder, where it reduces the charge from murder to manslaughter In the case ofmurder, the sentence is life imprisonment, however with a verdict of manslaughter, an accused may be sentenced to five to seven years of imprisonment rather than mandatory life imprisonment, which is a considerable reduction on the sentence for homicide. The test for provocation by the jury involves making a determination as to whether the accused killed while under a state of reduced self control. In arriving at a determination of the gravity of the provocation that caused the criminal act, the jury is required to make reference to the personal characteristics and situation of the accused, which includes age, sex, race, ethnicity, personal attributes and relationships, physical features and past history2. In making a determination as to whether or not provocation may be allowed as a defense in a case of homicide, the Court is required to consider a two limb test, that consists of an objective and a subjective element. Endowing a reasonable person with the characteristics of the accused is the objective aspect of the provocation test; while the subjective test is to determine whether a reasonable person3 would also act in the same way that the accused did when subjected to sudden trauma and threat, thereby eliminating the motive of pre-meditated murder4. During the application of the subjective test, there is no mandate to endow the reasonable person with the attributes of the accused, rather the jury is required to make a general determination of whether an ordinary person would have reacted in the same way. In applying this two phase test, the jury must first decide whether a reasonable person endowed with all the characteristics of the accused would have been similarly provoked (the objective test)5. The guideline established in the case of R v Howe was that the reasonable person would be a sober individual of reasonable firmness6. For the second limb, individual differences are eliminated from consideration and the jury must determine whether an ordinary person minus the characteristics of the accused, could have lost self control and formed the intent to kill. Hence a jury is required to construct two different people in arriving at a determination of intent to kill, one with the characteristics of the accused and the other without. This has been a source of considerate difficulty in delivering verdicts, since the definition of relevant provocation being of an extent where the accused is “so subject to passion as to make him or her not master of his mind”7 does not provide meaningful guidance as to what levels of loss of control would be necessary in order to invoke the defense of provocation, since human nature is so diverse that applying such standards on a uniform basis becomes inordinately difficult. In the case of R v Kumar, in Australia, Eames J noted that the “difficulty usually arises with respect to the requirements of the objective test…….ultimately the Courts draw an intuitive conclusion as to whether a given set of facts and circumstances is capable of causing the ordinary person to lose self control….”8 to an extent that it results in homicide. The question of whether an ordinary person should be endowed with the characteristics of the accused has been debated by several experts. For example, Leader Elliot points out that endowing the reasonable person with the characteristics of the accused is prejudicial to certain cultures and introduced a racist standard into the law.9 According to McHugh, J, such endowment of the accused leads to discrimination since “real equality before the law cannot exist when ethnic or cultural minorities are convicted or acquitted of murder according to a standard that reflects the values of the dominant class, but does not reflect the values of those minorities.”10 Rather, universal truths are such that they will transcend the perceived limitations of individual cultures. This is also a valid issue that must be raised in the UK, in the context of endowing the reasonable person with the characteristics of the accused, since under current law, a harsher standard is perhaps being applied to Anglo Saxons in a case of murder of a wife and/or her lover as opposed to for example, some from the Islamic races where women are traditionally viewed as the property of men and such violence and aggression against them is deemed justified to some extent. Endowing the reasonable person with such characteristics would inevitably produce a distorted result. Therefore the question that arises is whether the reasonable person should be endowed with the characteristics of the accused at all? If they should, to what extent should they be applied? UK Courts in general have adopted stricter standards in terms of traits of the accused that a reasonable person may be endowed with. For instance, in the case of R v Newell11the Court held that a characteristic of the accused that a reasonable person may be endowed with is one that is not transient but has the element of permanence and gravity. Therefore such traits as are likely to be permanent attributes would be the only ones that could be considered valid to apply. The Court of Appeal also rejected the argument that a reasonable person should be endowed with the characteristics of the accused, as per the objective test, in the cases of R v Hegarty12 and R v Horne13where the defendant sought to attribute a special vulnerability to threat in a reasonable person in order to introduce psychiatric evidence. While the Court held that a psychiatric condition could in some instances provide grounds for provocation in a case of homicide, this could not extend to endowing a reasonable person with such an attribute. The grounds for the Court of Appeal’s refusal to consider such endowment was on the basis that a reasonable person is assumed to be one of average strength and firmness of mind and this could not be converted to make him one of weak firmness induced by a psychiatric condition. Similarly in R v Bowen14 an attempt to endow the reasonable person with the characteristic of low IQ was rejected by the Court of Appeal. However Stuart Smith LJ stated that while health, sex and physical health could be relevant characteristics, mental impairment could not be held to be a relevant trait because it would not necessarily render a person less able to deal with threats than an ordinary person. In considering all of the above factors, it may therefore be concluded that the Courts have experienced a considerable amount of difficulty in applying the two limbed test for provocation. In particular, the objective test has been a source of problems because it has required the Courts to develop a profile of a reasonable person with all the traits of the accused and this of itself, could be a source of discrimination, wherein different standards are applied to different sexes and races, etc, especially in a matter as gruesome as homicide which by uniform application of law would require that unless strong mitigating circumstances exist, severe punishment needs to be accorded. The Courts have acknowledged the difficulties inherent in endowing a reasonable person with the characteristics of the accused, as per the requirements of the accused. This is partly due to the vast diversity of human nature. The Courts have not however rejected the application of the objective test altogether. Rather there are certain attributes that they have deemed to be acceptable, in the context of endowment on a reasonable person. Some of these traits are age, sex and the level of physical strength possessed by an individual. The profile of the reasonable person as established by the Courts is that of an individual possessing an average level of firmness and of determination, as well as an average degree of self control under provocative situations. Moreover, the reasonable individual is also assumed to possess these traits as a permanent and constant feature, rather than their being induced through temporary situations, which would make those attributes temporary or transient. Therefore, the Courts by developing this profile, have eliminated the application of the defense in the case of uncharacteristic individuals, where the determination by the Courts tends to rely more on an intuitive assessment of the level of provocation in the circumstances of the individual case. However, it appears that the question of endowment of the reasonable person will require further refinement if it is to prove to be a true tool of justice that does not allow those who are culpable to escape the punishment for their crime. Bibliography * Leader-Elliot, Ian, 1996. “Sex, race and provocation: In defence of Stingel” 20 Criminal Law Journal, 72 * Simester, A and Sullivan G, 2000. “Criminal Law Theory and Doctrine” Hart Publishing Cases cited: * Edwards v The Queen [1973] AC 648 * Masciantonio v The Queen (1995) 183 CLR 58 at 74 * R v Bowen (1996) Criminal Law Review, 577 * R v Duffy (1949) 1 All ER 932 * R v Hegarty (1994) Criminal Law Review, 353 * R v Horne (1994) Criminal Law Review, 584 * R v Howe (1947) AC 417. * R v Kumar (2002) VSCA 139 * R v Morhall (1996) AC 588 * R v Newell (1980) 71 CR App Review, 331 Read More