Criminal Defence of Provocation - Term Paper Example

Criminal Defence of Provocation The present partial defence of provocation in the English law has its origin in the common law system but has been, since 1957, intruded into by the statute with the introduction of the Homicide Act. The doctrine of provocation has evolved into a broad law brought about by the law’s rather unspecific language and the variety of case law that has helped add all sorts of nuances to it through the years. The present law has been assailed as ambiguous, incoherent and unjust because whilst it allows defendants with mediocre excuses for availing it, it precludes those with more serious reasons on the ground of mere technicalities. A proposed bill however is pending in Parliament which seeks to remedy the ills of the law. Called the Coroner and Justice Bill, the proposed law is set to abolish provocation as a partial defence and introduce the ‘loss of control’ law in its lieu, using more stringent and specific language that will hopefully narrow down the application of the law and remove the hindrance to a more just application of the partial defence. The Doctrine of Provocation The doctrine of provocation is a common law doctrine, which has been altered by the statutory law. As embodied in the Homicide Act of 1957, the doctrine works to serve as a mitigating factor in the crime of murder. Section 3 of the said Act specifically delegates the task of determining its existence to the jury in murder cases. Thus: 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 to the jury; and in determining the 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. There are, therefore, two things that a jury must do relative to the above provision: determine whether the defendant acted out of loss of self-control, and; whether a reasonable man would have similarly acted as the offender. The case of R v Camplin [1978] 2 All ER defined a reasonable man as “a person having the power of self-control, to be expected of an ordinary person of the same age and sex as the accused, but in other aspects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him” (qtd Slapper & Kelly pp 108-109). The doctrine of provocation acts as a partial defence, which if successful results in partial responsibility or in simple terms, reduces murder to manslaughter. The doctrine is not applicable to any other kind of offense (Ashworth & Mitchell pp 72-73). Provocation is raised by the defence and the judge himself directs the jury to consider the element. The judge has to determine first the acts done or words uttered that directly affected the defendant’s self-control and provoked him/ her to kill (Stone 68). In the case of R v Cocker [1989] Crim LR 740, for example, a wife with terminal illness persistently begged her husband to end her pain by ending her life, which he eventually did by suffocating her. The judge directed the jury to eliminate provocations as a defence and the jury reluctantly gave a return of murder. The Court of Appeal agreed with the judge’s withdrawal of the provocation defence because there was no actual loss of control but only acquiescence by the husband of the wife’s request. The failure of the judge to refer the issue of provocation to the jury may be a ground for appeal. This is notwithstanding the unreasonableness of the actions of the defendant. In the case, for example, of R v Doughty [1986] 83 Cr App R 319, a man killed his baby who was just 17-day old. He was purportedly provoked by the baby’s incessant crying. The CA held that the judge misdirected the jury in not considering provocation on the ground that the baby’s crying could not have constituted a provocation. In R v Johnson [1989] 2 All ER 1989, two friends were having a drinking spree, in the course of which the defendant made remarks offensive to his companion’s girlfriend. The defendant threatened to harm him, a scuffle ensued and the defendant stabbed his companion. The court refused to direct the jury to consider provocation on the ground that the defendant himself initially made the provocation. The decision was quashed on appeal and a conviction of manslaughter was supplanted. Unlike the Cocker case, the R v Acott [1997] 1 All ER 706 found no evidence of provocative conduct although there was evidence of loss of self-control. In the said case, a man was charged with the murder of his intoxicated mother who was found dead with multiple injuries. The defendant’s initial claim was that the death was caused by an accidental fall and the injuries by his unsuccessful attempts to revive her. On cross-examination, he admitted being provoked to kill her because she humiliated him. The court did not direct the jury on provocation. The CA agreed on the ground that although there was evidence offered of loss of self-control, there was none that evinced acts of provocation. Although the defence may not have raised the issue of provocation, the judge may, nevertheless, direct the jury to consider it. This was the holding in the case of Cf Rossiter [1942] 2 All ER 752, where the defence did not rely on the doctrine of provocation but rather on self-defence. This is subject, however, to the condition that there is evidence of it already before the court as was held in the case of Mancini v DPP [1941] 3All ER 272. Once the judge has directed the jury to consider provocation, the jury must conduct two tests: the subjective test, and; the objective test. The subjective test simply requires the jury to find a connection between the acts or words alleged to be provocative and the loss of control of the defendant. Once the connection is found, the jury proceeds to the second test which is the Reasonable Man Test. At this stage, the defendant’s mental state at the time of the commission of the offense becomes irrelevant. The HL emphasized that in conducting this test the jury must not only consider how the reasonable man will react under the same circumstances but also if he will react in the same manner as the defendant did. This was the Court’s holding in the case of DPP v Camplin [1979] AC 705 where a 15-year old boy killed the man who sodomized and taunted him thereafter. The judge directed the jury to use the reasonable adult model. He was convicted of murder which was reversed by the CA and the HL as the judge should have instructed the jury to use the reasonable 15-year old model. The Controversy The present law on provocation is controversial for being “confused and incoherent.” This stemmed from, among others, the fact that the Reasonable Man Test does not seem to have a fixed standard but seems to change and alter with every decision of the court. Initially, the Test referred to the perfect man, with no idiosyncrasies or imperfections. Thus, in the case of R v Bedder [1957] 1 WLR 1119, a man was convicted of murder for killing a prostitute after the latter ridiculed him for his impotence. She also kicked him in the groin and slapped him. Nevertheless, the court held that although the taunts and physical abuse could be considered as provocative acts, his impotence was not because the reasonable man model has no imperfections. This decision was, in effect, overridden in the Camplin case when the HL allowed the age of the boy to be taken into consideration (Clarkson 127). In the subsequent cases of R v Newell [1980] 71 Cr App 331 and R v Morhall [1995] 3 All ER 659, the court began to take into consideration other characteristics of defendants that would impact provocation and his self-control. This, in effect, not only broadened but also confused the law. In the Newell case, the defendant was a chronic alcoholic who succumbed to depression after his girlfriend left him. While he was drinking with a friend, the latter taunt him about it and insinuated engaging in homosexual act. The defendant beat him to death. In the Morhall case, the defendant was a glue sniffer and was ridiculed for it. He stabbed the ridiculer to death. In the first case, the court ruled that alcoholism could have been taken into consideration had it been the subject of the provocation. In the second case, the court ruled that the jury could take the glue-sniffing habit of the defendant into consideration as a characteristic of the reasonable man because it was the subject of the taunt (Clarkson 125). In addition, the Reasonable Man Test has also been diluted by two opposing doctrines. These opposing doctrines are clearly illustrated in the cases of Luc Thiet Thuan v The Queen [1997] AC 131 and R v Dryden [1995] 4 All ER 987. In the first case, the court held that the brain damage of the defendant could not be taken into account because it was not the subject of the taunt that provoked him to kill his girlfriend. Only his age and sex could be used to vary the reasonable man test with respect to his ability to exercise self-control and not his mental deficiency. In the second case, however, the court ruled that the obsessive nature and eccentricities of the defendant should have been taken into account in considering his ability to exercise self-control as a part of the reasonable test (Clarkson 126). The various nuances introduced into the law and their contradictory nature made provocation difficult to grasp by the jury and to remedy this, the HL tried to resolve these contentious issues in the case of R v Smith [2000] 4 AER 289. The case involves a man suffering from clinical depression who murdered his friend over an argument involving stolen tools. In this case, the HL blurred the distinctions between characteristics going into provocation and those relevant to the determination of self-control. More importantly, it declared the reasonable test as a mere ‘opaque formula’ which need not be used by the jury in all cases. Whilst the HL declared this clinical condition relevant to provocation, it specifically precluded certain characteristics like “male possessiveness and jealousy; obsession; a tendency to violent rages or childish tantrums; violent dispositions, and; choleric temperament, drunkenness, or other self-induced lack of control, exceptional pugnacity and excitability” (Clarkson 128). The idea is to prevent the law from being made an excuse for murders committed as a result of hot temper. Instead, however, of resolving matters, the Smith case in obliterating the objective or reasonable man test open the floodgates of open-ended characteristics that would influence the defendant’s capacity to exercise self-control. The Smith case has to a certain extent, modified and widened the scope of the Morhall case in eliminating the requirement that a defendant’s condition must be relevant to his provocation. In addition, it has muddied the distinction between provocation and diminished responsibility under Art 2 of the Homicide Act. According to Ashworth and Mitchell, the objective test of the provocation has been diluted by allowing the incursion of a defendant’s characteristics into the reasonable man model. This has led to the entanglement of the former with the latter, adding to the confusing nature and lack of clarity of the provocations defence. In a study conducted on first instance cases, for example, it was revealed that they all shared both the elements of provocation and diminished responsibility. Not only did the cases have diminished responsibility psychiatric undertones, they also referred to provocation. As a result, psychiatric testimonies became admissible to help jury deliberation where they would not have normally been admitted under diminished responsibility (pp 74-75). The provocation law has also proved to be unjust in certain cases. In R v Alhuwalia [1992] 4 All ER, a woman suffering from battered-wife syndrome was precluded from availing of the provocation defence on the ground that the loss of control was not sudden. The case illustrates a failing of the law because while the provocation doctrine had opened itself to the glue-sniffing defendant in the Morhall case, it cannot, by its terms, be of help to a woman who had endured ten years of oppression. Although the CA ordered the retrial of the case for diminished responsibility on the basis of newly submitted evidence of battered wife syndrome, it did not, however, find any error on the judge’s direction to the jury to consider provocation only if the loss of control by the wife was sudden. The CA contended that the lower court did not have the power to change the law because that is the sole prerogative of the Parliament The Proposed Law Under s 43 of the proposed Coroners and Justice Bill, the partial defence of provocation under s 3 of the Homicide Act of 1957 is abolished and substituted by the partial defence of loss of self-control. Instead of provocative acts and words, the proposed law uses the term “qualifying trigger” referring to and resulting in the defendant’s ‘fear of serious violence’ and a ‘justifiable sense of being wronged’ owing to acts or words that amount to ‘extremely grave character.’ In addition, the proposed law explicitly precludes the use of sexual infidelity as a triggering factor. The impact assessment issued by the Ministry of Justice, revealed the government’s concern that the law on provocation as laid down in s3 of the Homicide Act has been used as an easy escape of those who killed after mere loss of temper but has not been helpful to those who were forced to kill out of fear of serious violence (Summary: Inventions and Options). This shortcoming has been illustrated in the Alhuwalia case as opposed to the Morhall case. This failing is being remedied by the proposed law which explicitly provides in §2 of s41 thereof that “it does not matter whether the loss of control was sudden.” The same impact assessment likewise noted that the proposed law has a narrower application than the present law on provocation. The implication is that the ‘raising of the bar’ will result in fewer cases being successful on the basis of the partial defence of loss of control under the proposed law. The so called raising of the bar is engendered by specific requirements of the law relative to the triggering circumstances of the loss of self-control. Subsection 3 of s41, for example, cite “fear of serious violence,” §4 “circumstances of extremely grave character” and “justifiable sense of being seriously wronged.” The emphasis on the severity of the requirements would be enough, according to the said assessment, to lead to a fewer number of murder charges being mitigated to manslaughter. Although the assessment foresees, as a result of the new law, “greater clarity, improved justice and increased public confidence,” it also estimates an increase of costs of about £4-8 million annually which will go to the construction of more prison places, additional legal representation costs and court time. The present provocation law, which serves as a partial defence to murder, has proved to have become a rather ambiguous, incoherent and unjust law brought about by its broad and non-specific language, the contradictory case law behind it and the limitations inherent in the law itself. Hopefully the proposed Coroner and Justice Bill which will abolish the provocation law and introduce the loss-of-control provisions will remedy this. The more specific wording of the law, the inclusion of specific statements guaranteeing inclusion of extraordinary conditions not found in the present law will hopefully, make the proposed law a potentially clearer and more just law than its predecessor. Works Cited Ashworth, Andrew & Mitchell, Barry. Rethinking English Homicide Law. Oxford Monographs on Criminal Law and Criminal Justice. Oxford University Press, 2000 Cf Rossiter [1942] 2 All ER 752 Clarkson, Christopher. Understanding Criminal Law. Sweet & Maxwell, 2005. Coroners and Justice Bill. House of Commons. http://www.publications.parliament.uk/pa/cm200809/cmbills/009/09009.25-31.html DPP v Camplin [1979] AC 705. Homicide Act 1957. Opsi. http://www.opsi.gov.uk/RevisedStatutes/Acts/ukpga/1957/cukpga_19570011_en_1 Luc Thiet Thuan v The Queen [1997] AC 131. Mancini v DPP [1941] 3All ER 272 R v Acott [1997] 1 All ER 706. R v Alhuwalia [1992] 4 All ER R v Bedder [1957] 1 WLR 1119. R v Camplin [1978] 2 All ER. R v Cocker [1989] Crim LR 740. R v Doughty [1986] 83 Cr App R 319. R v Dryden [1995] 4 All ER 987. R v Johnson [1989] 2 All ER 1989. R v Morhall [1995] 3 All ER 659. R v Newell [1980] 71 Cr App 331. R v Smith [2000] 4 AER 289. Slapper, Gary & Kelly, David. The English Legal System: 2009-2010. Taylor & Francis, 2009. Stone, Richard. Offences against the Person. Routledge, 1999. Summary: Inventions and Options. Ministry of Justice. http://www.justice.gov.uk/publications/docs/coroners-justice-bill-ia-homicide.pdf. Read More