Provocation and Intoxication Defences - Essay Example

Provocation and Intoxication Defences Introduction Provocation as a defence is deeply rooted in the common law and focuses more on the lack of self-control rather than the defendant’s “wrongful conduct”.1 However, provocation has been substantially modified by virtue of the Coroners and Justice Act 2009 which effectively changes provocation to loss of self-control.2 Self-induced intoxication can also be a defence to criminal liability if it is such that the defendant formed an intent during the state of intoxication that he/she would not have formed while sober.3 However there are limits to the extent to which Smith may rely on the defences of provocation and intoxication. In both cases the defence of intoxication and provocation will are only partial defences with the result that if they are successfully raised as defences to murder, that charge will be reduced to manslaughter. Each of these defences and Smith’s ability to use them are discussed below. I. Provocation Provocation has developed as a partial defence to murder and if successfully argued will reduce murder to manslaughter. Under the law as it stands, Smith will have to show that his victim John conducted himself is such a way as to cause Smith to lose his self-control or to act in “the heat of passion” so that the killing was not pre-meditated nor was it carried out “in cold blood”.4 Sections 54 and 55 of the Coroners and Justice Act 2009 replaces Section 3 of the Homicide Act 1957 as well as the common law relative to the defense of provocation.5 Section 54 defines “loss of control” which is now the new test for substantiating a partial defence of provocation.6 By virtue of Section 54 an individual will not be guilty of murder if his/her act or omission was a result of the defendant losing self-control.7 However, the “loss of self-control” must have a “qualifying trigger”.8 Section 54(1)(c) directs that the test to be applied in determining the loss of self-control is an objective one in that: A person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or a similar way to D.9 Section 54(1)(c) follows the ruling in R v James and Karimi [2006] where the court ruled that in assessing whether the defendant alleges to have suffered a loss of self-control, the jury is entitled to take into account factors other than the defendant’s age and gender.10 In applying the test delineated above to the facts of the case for discussion, Smith is a male with sufficient maturity to work as a traveling salesman. However, he has been away from home for at least three weeks and must have been eager to reunite with his young wife Mary. The question therefore is whether or not Smith’s mental state as a result of being away from home and his young wife might qualify for the standard applied to testing the loss of self-control. Certainly in R v Smith (Morgan) [2000] the House of Lords ruled that the mental traits of the defendant can be taken into consideration when assessing the seriousness of the provocation and the defendant’s reaction relative to a reasonable man.11 However, this case has been subsequently reversed by A-G for Jersey V Holley [2005].12 Although Holley was a Privy Council decision it gained currency among the judiciary in England and Wales.13 For example in R v Mohammed [2005], a Muslim who had been convicted of killing his daughter by stabbing her 19 times after he found her with a young man in her bedroom sought to use provocation as a defence based on his strong religious beliefs. The defendant was also depressed having losing his wife. It was held that the test law on provocation was set out in Holley and the mental characteristics of the defendants were not relevant to a defence of provocation.14 However, Section 54(3) appears to reinstate the ruling in Smith as Section 54(3) provides that: References to “the circumstances of D” is reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity or self-restraint.15 Guided Sections 54(1)(c) and Section 54(3) of the Coroners and Justice Act 2009, it would appear that there is only one relevant question. Would a man Smith’s age in the circumstances that he was in, have been expected to lose his self-control after finding his wife in bed with his neighbor? In order to answer that question it would appear that the fact that Smith had been away from home for a considerable time and had just arrived at home would be relevant. This is a question of fact for the tribunal of fact to determine and there is no way of predicting whether or not Smith’s claim of provocation would succeed. The fact that Smith maintained his composure and went to a pub may indicate that he was not provoked by his wife’s infidelity with the neighbour. However, Section 54(2) provides that for the purposes of substantiating a defence of the loss of self-control, “it does not matter whether or not the loss of control was sudden”.16 In other words the lapse of time between finding his wife and neighbour in bed and stabbing his neighbour are irrelevant for the purposes of substantiating a defence of provocation. The hurdle for Smith to overcome however is satisfying the jury that he did not act out of revenge. Section 54(4) specifically states that Section 54(1) is not applicable if “D acted in a considered desire for revenge”.17 However, the Act does not define what is meant by “considered desire for revenge” and this is therefore open to interpretation. The fact that Smith was intoxicated at the time might dispel any claim that he acted in what might be a considered desire for revenge if considered means he had thought about and considered taking revenge on his neighbour. Regardless of whether or not Smith can prove that the circumstances were such that he lost his self-control and that he did not act out of a considered desire for revenge, he has significant and insurmountable hurdle to overcome under Section 55 of the Coroners and Justice Act 2009. Section 55 helps Smith out by providing that a qualifying trigger is met if things that were said and/or done were of an “extremely grave character” and “cause D to have a justifiable sense of being seriously wronged”.18 Assuming that finding his wife in his own bedroom with the neighbour upon returning home from an extended trip is a qualifying trigger, Smith would have no problem thus far substantiating the defence of provocation. However, Section 55(c) provides that “the fact that a thing done or said constituted sexual infidelity is to be disregarded.”19 Therefore Smith will not be able to successfully use the defence of provocation since his wife and neighbour’s infidelity is not a qualifying trigger and will not meet the required standard set out in Section 54 of the 2009 Act. II. Intoxication It is generally accepted that intoxication can have consequences for criminal responsibility in a number of offences.20 The consequences for criminal responsibility arises out of the distinction between being drunk and being intoxicated. A man who is drunk may commit an offence that he would not commit while he is sober, but he will not be able to use intoxication as a defense if he has the capacity to form the requisite mens rea for the offence while drunk.21 The court held in Sheehan that, “a drunken intent is nevertheless an intent”.22Moreover: The jury should merely be instructed to have regard to all the evidence, including that relating to drink, to draw such inferences as they think proper from the evidence, and on that basis to ask themselves whether they feel sure that at the material time the defendant had the requisite intent.23 This ruling will have significant consequences for the success of failure of Smith’s defence of intoxication. The jury will be at liberty to take account of the circumstances preceding Smith’s foray to the pub where he becomes drink. There are possibly two interpretations of the surrounding circumstances and facts. First, it can be argued by the prosecution that Smith had been sufficiently angry and revengeful by finding his wife and neighbour in bed together and that he had already formed a murderous intent. It was the imbibing of alcohol that merely gave him the courage to act out his murderous intent.24 It was held in A-G for N. Ireland v Gallagher [1963] that where an individual purposely becomes intoxicated for the express purpose of obtaining Dutch Courage to enable him/her to commit an offence, that intoxication will not be regarded as a defence even with respect to crimes requiring proof of a specific defence. In such a case, the defendant will assume liability in the same manner as any other individual who purposefully and with intent commits an offence.25 On the other hand however, it might be possible to argue that no such murderous intent was formed as a sober Smith retreated and was totally in control of his temper. It was only after he became intoxicated that he took action and it was clearly action that he did not have the capacity to formulate and commit while sober. Much will depend on how intoxicated Smith was at the time of committing the offence. By definition, a person who is intoxicated is not capable of forming the requisite mens rea on account of the impact of alcohol. However, in order to meet the required standard of intoxication as a defence, the intoxication is required to be “very extreme”.26 On the facts of the case for discussion, Smith is described as having become “thoroughly intoxicated”. Whether this meets the level of very extreme intoxication is a matter of fact for the jury to decide. Much will depend on the time spent drinking, how much Smith ate before drinking and the quantity of alcohol imbibed.27 The fact that the intoxication was self-induced is of no consequence. It is firmly established that self-induced intoxication is not a defence to an offence requiring basic intent. However, it has been established that self-induced intoxication can be raised as a defence to offences requiring specific intent.28 Since charges of murder require a specific intent to kill or to while manslaughter does not, Smith’s self-induced intoxication will not be barred as a defence to murder but will be barred as a defence to manslaughter.29 Although the burden of proof in criminal trials is on the prosecution throughout, the onus will be on Smith to prove that he was intoxication. The burden then shifts back to the prosecution to prove that although there is evidence that the defendant was intoxicated at the time, he/she did form the requisite mens rea for murder. In R v Pordage [1975] it was held that the main issue when taking into consideration the fact that the defendant was intoxicated was whether or not he formed the requisite specific intent.30 Conclusion Smith will not be able to successfully raise the defence of provocation to a charge of murder in respect of his neighbour’s death. Although, the circumstances in which he returned home from an extended trip and found his young wife in bed with his neighbour may ordinarily be serious enough to amount to provocation, the Coroners and Justice Act 2009 requires a qualifying trigger and by doing so specifically bars the use of infidelity as a qualifying trigger in substantiating a defence of provocation.31 Although Smith may have more success with the defence of intoxication it is not altogether certain that he might succeed. In the final analysis it is up to a jury to interpret the facts of the case and it is entirely likely that the prosecution might be able to convince the jury that Smith had the necessary mens rea and that the intoxication merely provided him with the Dutch Courage to carry out his murderous intent. It is also just as likely that Smith might be able to convince the jury that he formed no such intent and that he was too intoxicated to form a murderous intent. Bibliography Textbooks Anleu, S. Law and Social Change. (SAGE Publications 2009). Great Britain, Law Commission. Intoxication and Criminal Liability. (TSO 2009). Great Britain, Law Commission. A New Homicide Act for England and Wales: A Consultation Paper. (TSO 2006). Reed, A.; Fitzpatrick, B. and Seago, P. Criminal Law. (Sweet and Maxwell 2006). Articles/Journals Dressler, J. ‘Provocation: Partial Justification or Partial Excuse?’ (Jul. 1988) 51(4) The Modern Law Review, 467-480. Haque, Q. and Cumming, I. ‘Intoxication and Legal Offences.’ (2003) 9 Advances In Psychiatric Treatment, 144-151. Table of Statutes Coroners and Justice Act 2009. Table of Cases A-G for N. Ireland v Gallagher [1963] AC 349. A-G for Jersey V Holley [2005] 3 WLR 29 DPP v. Majewski [1977] AC 142 R. v Hill [2008] EWCA Crim 76. R v James and Karimi [2006] 2 WLR 887 R v Mohammed [2005] EWCA Crim 1880 R. v. Sheehan and Moore [1975] 60 Cr App R 308. R v Smith (Morgan) [2000] 3 WLR 654 R. v.Stubbs [1989] 88 Cr. App. R. 53. Read More