Introduction
The defence of provocation was, for many years, a significant partial defence to murder in England and Wales. When successfully pleaded, it did not lead to a full acquittal but reduced the conviction from murder to voluntary manslaughter, giving the judge discretion in sentencing. The defence was rooted in the idea that a person who kills in the heat of the moment, having been provoked, is less blameworthy than a person who kills with cold-blooded premeditation. However, the law surrounding provocation became complex and was subject to criticism, leading to its eventual abolition and replacement. This essay will outline the definition and elements of the old defence of provocation as it operated under the Homicide Act 1957.
Defining Provocation
The defence of provocation was given a statutory footing by section 3 of the Homicide Act 1957. This section stated:
"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…"
The classic judicial definition of provocation was provided by Devlin J in R v Duffy [1949] 1 All ER 932, who described it as something which causes a "sudden and temporary loss of self-control". This definition highlighted the two key components of the defence that a defendant would need to establish: first, that they had lost their self-control, and second, that this loss of control was sudden.
The Elements of the Defence
The law on provocation developed a two-part test for the jury to consider, combining subjective and objective elements.
The Subjective Test
The first question for the jury was subjective: did the defendant in fact lose their self-control as a result of the provocation? This was a question of fact based on the evidence. The "sudden and temporary" requirement from Duffy was a crucial part of this test. It meant the defendant's reaction had to be almost immediate. This created issues in cases involving a 'slow burn' reaction, where a victim of prolonged abuse eventually snaps. A key case illustrating this difficulty is R v Ahluwalia [1992] 4 All ER 889, where a wife who had suffered years of domestic violence killed her husband. Her actions were not immediate, and on appeal, her provocation defence failed partly on that basis (though her conviction was quashed on grounds of diminished responsibility). This highlighted a gender bias in the law, as it seemed to favour a male defendant’s typically sudden, angry response over a female defendant’s fear-based, delayed reaction.
The Objective Test
If the jury was satisfied that the defendant had lost self-control, they then had to consider the objective question: was the provocation enough to make a reasonable person do as the defendant did? This test required the jury to apply a standard of self-control expected of an ordinary person. The main difficulty here was defining the 'reasonable person'. The House of Lords in DPP v Camplin [1978] AC 705 held that the reasonable person would have the same age and sex as the defendant. Furthermore, the jury could consider any characteristic of the defendant that was relevant to the gravity of the provocation. For example, a taunt about a person's disability would be graver if the defendant was actually disabled.
However, the courts struggled with whether the defendant's personal characteristics could also be taken into account when judging the standard of self-control expected. After a period of uncertainty, the Privy Council clarified the position in Attorney General for Jersey v Holley [2005] UKPC 23. This case established that while characteristics could be considered for the gravity of the provocation, the standard of self-control to be expected was that of a person of ordinary tolerance and self-restraint, with reference only to the defendant's age and sex.
Conclusion
The defence of provocation, as defined by section 3 of the Homicide Act 1957 and a large body of case law, was a complex legal doctrine. It rested on a two-part test requiring a "sudden and temporary" loss of self-control (the subjective element) and a consideration of whether a reasonable person would have reacted in the same way (the objective element). The strictness of the 'sudden' loss of control requirement and the confusing nature of the 'reasonable person' test were significant sources of criticism. In response to these problems, Parliament abolished the defence of provocation through section 56 of the Coroners and Justice Act 2009. It was replaced by a new partial defence of "loss of control" under sections 54 and 55 of the same Act, which was specifically designed to address some of the shortcomings of the old law.
References
Cases
- Attorney General for Jersey v Holley [2005] UKPC 23
- DPP v Camplin [1978] AC 705
- R v Ahluwalia [1992] 4 All ER 889
- R v Duffy [1949] 1 All ER 932
Legislation
- Coroners and Justice Act 2009
- Homicide Act 1957
