A2 LAW MURDER DEFENCES - PROVOCATION NOTES

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Provocation ­ First defence
If the accused had the mens rea for murder, the charge may nevertheless be reduced to one of
manslaughter if one of three special defences can be established. They are set out in the Homicide
Act 1957 ­ Provocation, diminished responsibility and suicide pact (Complete defence ­ self
defence)
Homicide Act 1957 ­ where on charge of murder there is evidence on which the jury can find that the
person charged was provoked 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.
PROVOCATION
There are three distinct stages in assessing whether the accused can succeed with this defence.
a) Evidence of provocation
b) The subjective test ­ did the defendant lose his self ­ control?
c) The objective test.
Provocation was described by Lord Devlin in the case of Duffy: provocation is a "sudden and
temporary loss of self ­ control rendering the accused to subject to passion as to make him or
her, for the moment not master of his mind". (Memorise that)
Evidence of provocation
It can be provided by the defendant himself or by any witness. Almost anything can amount to
provocation; as long as it falls within the description of things said or things done in Homicide
Act 1957.
a) R v Doughty ­ a man killed his baby and wanted to argue that he had been provoked by the
child's crying. Judge refused his appeal.
b) R v Davies ­ the defendant was provoked by his wife's lover.
The subjective test ­ did the defendant lose his self control? (Cooling off
period)
It must be shown that provocation affected him so strongly that he then lost his self ­ control ­
subjective test. It also must be proven that the defendant lost his self control, and that he did
not have the time to "cool off".
a) Duffy ­ an abused wife, after a quarrel with her husband left the room, changed her clothes
and then returned with a hammer and killed her husband. There was cooling off period ­ her
conviction was upheld.
b) R v Ahluwalia ­ the defendant waited until her husband fell asleep and then poured petrol
over him and set him alight, as a result of which he died ­ convicted of murder. Cooling of
period was present. It wasn't sudden loss of self control.
Paul C ­ LAW A2Page 1

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The objective test ­ would a reasonable man have acted in the same way?
After satisfying all of the above points, the jury must then go on and determine whether a
reasonable man would have reacted as the accused did. This involves an assessment of all the
accused's behaviour, including the extent of the reaction to the provocation.
The characteristics that need to be taken under consideration are: sex, age and ethnicity (R v Holley)
The definite case for the objective test is Bedder 1954.…read more

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