Reform in the Current Principles on Provocation - Essay Example

REFORM IN THE CURRENT PRINCIPLES ON PROVOCATION ."The inevitable demise of provocation as a defence, which follows from the ruling in Holley [2005] 2 AC 580, is of particular concern as is the new framework for sentencing in convictions of murder which in removing judicial discretion from the sentencing decision prohibits judges from tempering the harshness of the mandatory sentence. This new murder sentencing regime will undoubtedly result in injustice, especially in those cases where battered women kill, which, although deserving of mitigation, nevertheless fail to satisfy the structures of provocation's requirements post-Holley, thereby resulting in an increase in convictions for murder. The Law Commission's report on Murder, Manslaughter and Infanticide recommends a new framework for murder and manslaughter, including a new definition of provocation and also a new direction in the murder sentencing framework This area of the law is still far from fixed." Discuss how far, if at all, are current principles on provocation in need of reform? i. Introduction During the last fifty years, the doctrine of provocation has been a constant source of controversy in English criminal law. Provocation as a partial defence to murder is about the effect of provoked anger on moral and hence on legal responsibility for ensuing retaliation. Under the law, defendants are entitled to a verdict of manslaughter even if they have intentionally killed the victim particularly when they did it because of ‘loss of self-control’ or if the jury finds that, a ‘reasonable person’ might well have done as the defendants did. However, the principle of provocation is surrounded by ambiguous interpretations regarding the ‘reasonableness’ of a person defending his life. For this reason, some people expressed their desire to abolish provocation as a defence and the mandatory life sentence, and some are asking for reforms. This paper will discuss the issues behind the principle of provocation and the extent of reform it requires. ii. Issues on the Principle of Provocation A successful provocation plea does include a compromise of ‘partial’ responsibility and ‘reasonable actions’. However, something of a deception is involved in suggesting that what people think of as suitable action in moments of unanticipated torment is compelling evidence of what ‘reasonable action’ in such moments would have been since this will obliterate the divergence between cruel actions and over-reactions. In the provocation framework, such an outlook would result to the assumption that the reality that the defendant thought precise retaliation suitable in anger is the most compelling substantiation that that action was a despicable retaliatory response, a suggestion whose dubiousness is great1. There are therefore suggestions that the law should earnestly admit a plea that in a moment of unanticipated torment, a rushed and mistaken judgment in terror or fear was made of what it was needed to take by way of fitting defensive action. This is because human imperfection, the inclination to jump before looking for instance, is less morally liable when terror or fear is being experienced that when it is not. In this view, by equality of reasoning, they should forgive over-reactions due to erroneous judgments in anger, because anger, like terror or fear, is just the sort of emotion that is likely to be based on or result to rushed judgement, and thus one which may well be mistaken2 (Horder 1992, p.178). Another issue is the ‘reasonable action’ of a ‘reasonable man’. In the provocation field according to Lee (2003), the law does not deal with an idealized human being as an 1 & 2 Jeremy Horder, 1992, Provocation and Responsibility, Published 1992 Oxford University Press, ISBN 0198256965, p.178 ideal ‘reasonable man’ by characterization would never become angry enough that he would lose his self-control and kill exclusively because of passion, rather than reason. Instead, the provocation defence is based on the principle that the defendant is, regrettably, similar to other normal human beings. However, she added, it is true that an ideal person would never become so angry as to kill, but then jurors in provocation cases normally are not required to find that a ‘reasonable man’ would have killed. In most jurisdictions, they are only required to find that a ‘reasonable person’ would have lost his self-control or become as emotional as the defendant becomes3. In contemporary jurisdiction, lawfully sufficient provocation exists if the imaginary ‘reasonable man’ in the defendant’s shoes would have been provoked into a heat of passion. For a defendant to be given the provocation mitigation, the jury must find the defendant was “provoked” in a heat of passion. Secondly, the reasonable ma in the defendant’s shoes would have been “so provoked”. Thirdly, the defendant “did not cool off”, and fourth, the reasonable man in the defendant’s shoes “would not have cooled off” between the provocative event and the act or acts that led to the victim’s death4. In women, the extent of reasonableness seems to create indirect discrimination. In Nicolson and Bibings (2000) feminist perspective on criminal law, women are said to be far more likely to be discriminate by allegedly gender-neutral criminal law rules that are based on male patterns of behaviour. This discrimination according to them can occur through the application of either general standards like ‘reasonableness’, sincerity as so forth or more specific rules reproving, mitigating, or tolerating a particular behaviour5 . 3 & 4 Cynthia Lee, 2003, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, Published 2003 NYU Press, ISBN 0814751156, p.243 & 25 5 Donald Nicolson and Lois Bibbings, 2000, Feminist Perspectives On Criminal Law, Published 2000 Routledge Cavendish, ISBN 1859415261, p.93 Critics of ‘reasonableness’ argue that if a woman applies for a ‘reasonable person’ test, the law will be likely to have male standards of behaviour in mind, making it hard for women to prove the ‘reasonableness’ of their behaviour. They added that even after the House of Lords approved a ‘reasonable woman’ test, men often have murder charges lowered to manslaughter for reacting to rather insignificant provocation, such as verbal taunts, a disagreement over a barking dog, nagging and, in what the courts actually see as the classic form of provocation, real or alleged betrayal. On the contrary, at least until recently, women who kill out of fear and desperation following months or even years of cruelty, degradation, and sexual exploitation have generally been denied access to the provocation defence6. Molan (2005) suggests that the boundary between normal and abnormal is very often “a matter of opinion”7. Some people he believed are completely normal in most respects and act strangely in others. For instance, there are people such as battered wives who would rebuff any idea that they were different from ordinary human beings but have undergone experiences, which without any fault or defect of character on their part, have affected their powers of self-control. In such cases he added, the law now recognizes that the emotions, which may caused lost of self-control, are not confined to anger but may include fear and despair8. However, in The Law Commission Report (2004)9, a judge direction on the objective element of provocation seems reasonably valid to some extent. In Weller [2004] 1 Cr App R 110, the judge said that if ‘loss of self-control’ would be the basis of defence to murder, then anybody who found it difficult to 6 Donald Nicolson and Lois Bibbings, 2000, Feminist Perspectives On Criminal Law, Published 2000 Routledge Cavendish, ISBN 1859415261, p.12 7 & 8 Molan Mike, 2005, Cases & Materials on Criminal Law, Published 2005 Routledge Cavendish, ISBN 1859419356, p.169 9 & 10 Law Commission, 2004, Partial Defences to Murder, Final Report, online, http://www.lawcom.gov.uk, p.57, Paragraph 3.119 control their emotions or their temper could kill and then say, “Well, I lost my self-control. I’m not guilty of murder”. The “law is not that stupid”, the judge added, since it expects people to “control” their emotions. The only problem with this argument is the realty that the jury may find it difficult to assess whether the defendant’s behaviour was a ‘reasonable action’ thus the issue of ‘reasonableness’ as we mentioned earlier, remains. iii. Demise of Provocation as a Defence The abolition of provocation of defence like the one Edwards (2007) stated in her remarks in the beginning of this paper, will certainly results in injustice. In the Law Commission Report (2004)11, Consultation Paper No. 173 put forward certain general questions regarding the abolition of the provocation as a defence. The commission asked the consultants on issues whether “the present law was flawed” and whether “it was beyond organic reform by the courts”. There was an overwhelming response that the law was flawed to extent that it was beyond reform by the courts and only a small number of consultants favoured the abolition. However, a large number of consultants expressed that they are for abolition only if the mandatory life sentence were also abolished12. A third group of consultants also equal in number did not favour abolition but favoured reform13. In view of these findings, The Law Commission (2004) recommendation is to reform the partial defence of provocation. The unlawful homicide that would 11 Law Commission, 2004, Partial Defences to Murder, Final Report, online, http://www.lawcom.gov.uk, p.11, Paragraph 2.9 1216 judges, 1 individual member of the legal profession, 9 academics, 4 professional bodies in the criminal justice system, 1 NGO, and 1 psychiatrist. 13 2 lay persons, 10 judges, 3 individual members of the legal profession, 10 academics, 5 professional bodies within the criminal justice system and 3 NGOs. otherwise be murder should instead be manslaughter if the defendant acted in response to gross provocation such as “words or conduct that could cause the defendant to have a justifiable sense of being seriously wronged”. The defendant’s fear of serious violence” or a combination of the two causes. The commission also recommended the consideration of the defendant’s age as a measure of ordinary tolerance and self-restraint. However, the recommended partial defence is not applicable to a defendant who incited provocation for providing an “excuse to use violence, acted in considered desire for revenge, and use of excessive force in self-defence”14. The demise or abolition of provocation as a defence is definitely not the solution as doing so would apparently result in an enormous number of misjudged cases. Undoubtedly, the law’s interpretation or expectation of a ‘reasonable man’ is quite ‘unreasonable’ in the sense that men do made serious mistakes particularly in times of severe suffering. The law should not always expect a normal human being to ‘control’ himself/herself because the law does not require people to weigh to a nicety the “exact measure of defensive action necessary in the face of an uplifted knife”15. Therefore, it should not suppose a specifically calculated judgement of misconduct or of suitable retaliation in the face of a severe provocation16. It is only enough to reform the provocation as a defence in such a way that the ‘reasonableness of a man’ is clearly defined and justifiable according to the true nature of man. 14 Law Commission, 2004, Partial Defences to Murder, Final Report, online, http://www.lawcom.gov.uk, p.5, Paragraph 1.13 15 & 16 Jeremy Horder, 1992, Provocation and Responsibility, Published 1992 Oxford University Press, ISBN 0198256965, p.179 Fundamentally, according to Saks and Saxe (1986) the provocation doctrine has been interpreted in a way that has practically idealized the “ordinary man”. That the defendant is considered as fundamentally a “rational” being who can manage his activities and resolve by an act of the mind whether he will react to antagonistic or confrontational acts, and who, if he does react, can restrain the length of his anger and the degree of his response17. This interpretation appears contradicting the social psychology of impulsive aggression as a means of confronting most provocative events such as “insults, verbal challenges, status threats, unjust treatment, and other inciting actions”18. Furthermore, “behaviour”, in much psychological literature concerned with social learning, is “extensively regulated by consequences”19 and this pertains similarly to impulsive aggression. The behaviour of a ‘real’ person responding to a threat or a behaviour that depends on gravity of the situation is what our law should consider instead of just relying to a theoretical model of a very idealistic ‘reasonable man’. The current principles on provocation should be reform in a manner in which a ‘man’ or a ‘woman’ who committed a crime to depend themselves in fear of their lives is considered not only of his/her age and emotional capacity but also on the gravity of sufferings (particularly battered women) and the seriousness of the threat to the defendant. 17, 18, & 19 Saks Michael and Saxe Leonard. 1986, Advances in Applied Social Psychology, Published 1986 Lawrence Erlbaum Associates, ISBN 0898596696, p.90 & 91 iv. Conclusion Appropriate retaliation based on the assumption that the defendant should have acted as a theoretical ‘reasonable man’ is not enough to justify a murder. The law should consider an appeal that in a moment of unexpected torment, a hasty and mistaken judgment in panic or fear was made of what it was needed to take by way of appropriate defensive action. This is because anger, like panic or fear is just the kind of emotion that is likely to result in misjudgement. It is true that ‘reasonable man’ particularly in anguish will not kill solely based on passion and he will weigh his anger in detail. However, in matters of cruelty, fear and despair, and unexpected life threatening circumstances, the ‘reasonableness’ of a man is maybe not that perfect and he will react precisely according the severity of threat contrary to the law’s ideal perception. The demise of provocation as a defence is not the solution but a reform on the current principle of provocation as they are a number of issues surrounding the interpretation of the court about ‘reasonable actions’ and ‘loss of control’. This is exactly what The Law Commission recommendation is all about, “the defendant’s fear of serious violence” as a premise for defence. v. Bibliography HORDER Jeremy, 1992, Provocation and Responsibility, Published 1992 Oxford University Press, ISBN 0198256965 LAW Commission, 2004, Partial Defences to Murder, Final Report, online, http://www.lawcom.gov.uk LEE Cynthia, 2003, Murder and the Reasonable Man: Passion and Fear in the Criminal Courtroom, Published 2003 NYU Press, ISBN 0814751156 MOLAN Mike, 2005, Cases & Materials on Criminal Law, Published 2005 Routledge Cavendish, ISBN 1859419356 NICOLSON Donald and BIBBINGS Lois, 2000, Feminist Perspectives On Criminal Law, Published 2000 Routledge Cavendish, ISBN 1859415261 SAKS Michael and SAXE Leonard. 1986, Advances in Applied Social Psychology, Published 1986 Lawrence Erlbaum Associates, ISBN 0898596696           Read More