Provocation in English Criminal Law
A Partial Defence Based on Sudden Loss of Self-control
Oct 16, 2009
Against a charge of murder in an English court, a defendant may raise a partial defence of provocation. The Oxford Dictionary of Law (fifth edition) summarises this defence as: “Conduct or words causing someone to lose his self-control”. The loss of self-control must be at the time the defendant goes on to kill, and the provocation itself must be of such a nature than a “reasonable person” would likely have acted in the same manner.
If successful, provocation will reduce the crime for which the defendant is liable to manslaughter; which carries a far lower sentence. It cannot, however, ever fully discharge liability to the extent that a defendant will walk free.
Who Can Provoke?
Although in general, provocation will have come from the victim and it will be aimed at the defendant, this need not always be the case. In R v. Davies [1975], the court held that it is possible for a third party to cause the provocation, while R v. Pearson [1992] states that provocation can be aimed at a third party. The vital point is therefore that provocation is words or conduct that cause a loss of self-control in the defendant, regardless of their origin or who, if anyone, they were directed at.
Can a Defendant Provoke a Provocation?
Although some argue that it leaves room for a defendant to manipulate circumstances to his or her advantage, R v. Edwards [1973] states that a defendant's actions prior to the provocation occurring are irrelevant so far as provocation is concerned. It is therefore entirely possible that a defendant could provoke a provocation and still rely on the defence.
What Constitutes a Reasonable Person?
However, for provocation to be found, a jury must decide that a “reasonable person” would be likely to have acted in a similar fashion to the defendant. Under normal circumstances, this subjective test is one where the conduct of the defendant is held to a basic set of standards but for provocation, the issue is slightly more complex.
The House of Lords' decision in R v. Camplin [1978] states that when determining the effects of any given words or conduct on provocation, the “reasonable person” must be not only one who is the same age and sex as the defendant but also one possessing any “characteristics” that may be relevant in making them more prone to loss of self-control under the specific circumstances of the case.
What Characteristics May Not be Attributed to a Reasonable Person?
The characteristics that can be taken into account will be determined on a case-by-case basis as required, but all reasonable persons must have self-control as a common factor. Since R v. Lesbini [1914], it has been the case that a reasonable person must be regarded as having “reasonable self-control”, regardless of the level of self-control the defendant may possess. Those prone to aggressive outbursts are therefore at a significant disadvantage when pleading provocation compared to their calmer neighbours.
Does Provocation Have to Have an Immediate Effect?
If a person loses self-control, the law requires that it happen immediately. A person who is incensed by the words or actions of another must respond immediately, or they cannot rely on provocation. The decision in R v. Duffy [1949] laid the foundations for this caveat by requiring that any loss of control must be “sudden and temporary”, causing the defendant to act in a manner that they may not otherwise have done if they had had time to think about their actions.
R v. Ibrams [1981] later clarified the definition of “sudden” by requiring that the defendant must have lost control “at the time of the killing”, with the Jury being allowed some freedom to determine what “at the time” will mean in any given circumstances.
In short, the law on provocation reflects the fact that sometimes a person can be pushed beyond breaking point. If they can convince a Jury that a reasonable person would have probably also lost self-control in the same way, a defendant may rely on provocation as a defence to murder. Such a defence will of course not absolve them entirely, it merely reduces liability to that of manslaughter; absolving the defendant of some but not all of the blame for their actions.
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