Provocation used to be a common law defence before it was incorporated into s.3 Homicide Act 1957.
Essentially the defence operated in two stage:
o Subjective: Did D lose self-control? Was he provoked to have a sudden and temporary loss of self-control? (This sets up the defence.)
o Objective: Would a reasonable man have lost his self-control also? (Limits the defence.)
Unlike diminished responsibility, D bears only an evidential burden.This means that D must provide evidence in support of the defence in order to raise it, but it is for the prosecution to prove beyond reasonable doubt that the defendant was not provoked. This defence was therefore Woolmington  and Article 6 compliant.
Provocative conduct (subjective)
The Homicide Act 1957 stated that provocation could be things said or done (or both) however the Act provided no further explanation and so case law provided the actual examples. In the end it covered a very wide range of behaviour, including words alone and conduct that did not need to be illegal or even wrongful.
Physical assaults on D or relative:
R v Pearson 
Two brothers killed their violent, oppressive father with a sledgehammer. It was held that the violent treatment of the younger brother was sufficient for a successful plea of provocation. The older brother (who had been away from home but had returned to protect his younger brother) was however convicted of murder. On appeal he successfully pleaded provocation to reduce the conviction as the threats to the younger brother were relevant to his reaction of killing.
Continual crying of a young baby
R v Doughty 
D killed his son (less than 3 weeks old). He had looked after his wife and baby since the caesarean operation and one day, attempting to stop the baby crying, D placed a cushion on its head and knelt on it. The trial judge refused to allow the baby’s crying immediately prior to the killing to go to the jury as evidence of provocation. D appealed against conviction. The CA held that the issue of provocation should have been left to the jury to decide, however unreasonable it appeared to the judge. Manslaughter was substituted and sentence reduced to 5 years due to the misdirection.
Supplying drugs to Ds son: R v Baillie  D discovered that a drug dealer had supplied his teenage sons with drugs and was now threatening them. D took a sawn off shotgun and cut throat razor and drove to drug dealers house and shot him. It was held that provocation should have been left to the jury for their consideration.
Infidelity: R v Davies  D killed his wife after seeing her lover walk towards her place of work. It was held that the act of the lover walking to her work place could amount to a provocative act and the issue of provocation should have been put before the jury. The provocative act need not be deliberately aimed at provoking the victim, nor must the provocation come from the victim.
Tearing down illegally built bungalow: R v Dryden  D was convicted of murder after he had shot and killed a planning officer who arrived at Mr Dryden’s home to tell him it was to be bulldozed after a long-running planning dispute. Dryden opened fire and shot the officer twice in the chest at point-blank range and then blasted him through the head as he lay on the ground, in front of TV reporters, council workers, and police officers. He then shot a police officer in the lower back and a television reporter in the arm, before he was finally arrested by armed officers. Provocation was not left to the jury, and this was correct!
Loss of self control (subjective)
Case law confirmed that Ds loss of self-control had to be from a loss of temper. This was capable of producing a harsh outcome.
R v Cocker 
Ds wife was suffering from a terminal illness. She had repeatedly begged him to end her life and D eventually suffocated her with a pillow. The judge withdrew provocation from jury as D had not lost control; he had succumbed to his wife’s request and so did not leave provocation to the jury. They convicted D of murder, but wrote a letter of protest about the decision they felt were forced to come to.
Mr Compassionate – cannot be provoked. Murder. Mandatory life.
Mr Angry – can be provoked. Manslaughter. Discretionary life.
Sudden and temporary loss of control (subjective)
Additionally, D must have a sudden and temporary loss of self-control, due to a loss of temper.
R v Duffy 
D was an abused wife who after quarrelling with her husband one night, changed her clothes and when her husband was sleeping in bed she attacked him with a small axe.
CA: Murder conviction upheld as the CA said that there must be “...a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not the master of his mind.” This act was (apparently) committed for revenge; therefore D suffered no loss of control, since “...the conscious formation of a desire for revenge means that a person has had time to think.”
In requiring a sudden and temporary loss, the courts had to look at the issue of ‘how sudden’? Could there be any time lapse between the provocation and the killing and the defence still be available? The general rule that developed was that the longer the time lapse, the less likely provocation will succeed.
Sudden and temporary loss of control (subjective)
R v Ibrams & Gregory 
James Ibrams and his girlfriend Laura had been severely bullied by a man (V) (Laura’s abusive ex-boyfriend). V had been visiting their flat often and terrorising them. On the 7th October, Ibrams called the Police but they did nothing. On the 10th October, Ibrams and Ian Gregory made a plan to attack the ex-boyfriend by getting him drunk and breaking his arms and legs. They carried out their plan on the 12th October, but ended up killing V. Murder convictions were upheld by CA as there was no evidence of any provocation after the 7th October and the gap of 5 days between this and the attack negated (cancelled) their claims that they had lost self-control.
As the boundaries of the defence developed, it appeared that the ‘sudden and temporary’ requirement made the defence more available to men than women as men (stereotypically) respond quicker with violence to provocation. Women on the other hand (often) take longer before they lose control; they experience a ‘slow burn’, slowly getting angrier. This slow burn principle was often (wrongly) viewed as a cooling off period where a woman would plan an attack and thus the defence would be unavailable.
Slow burn (women)
R v Thornton 
D was an abused wife whose husband had been beating her for years. One night, after drinking heavily, V told D he would kill her in her sleep. Sara went to the kitchen, sharpened a knife, returned to the lounge and stabbed V in the stomach. She then phoned for an ambulance and said what she had done. Despite the time lapse, the defence was left to jury, but they nonetheless convicted D of murder. CA upheld the conviction, however at her second appeal; CA held there could be a sudden loss of control triggered by a relatively minor incident (which could seem out of proportion to killing in response.) Conviction reduced to voluntary manslaughter and she was released on time already served.
Slow burn (women)
R v Ahluwalia 
D suffered physical, sexual and emotional abuse for over a decade from her husband. One night, he threatened her with violence unless she paid a bill the next day. She waited for him to fall asleep, poured petrol on him and set him alight. He died 6 days later. D was convicted of murder and the CA did not allow her appeal based on provocation. They stated that while ‘sudden’ did not mean immediate, the longer the delay, the more it looks like revenge. D had a temporary loss of control, but it was not sudden. D eventually succeeded with a plea of DR under the newly recognised battered women’s syndrome.
Courts began to realise that relevant provocative conduct should not be confined to the last word or act immediately before the killing. Instead, they began to consider provocative acts that have taken place over a long period of time as they there may be many previous words or acts that when added together cause D to lose control, even if the last act seems relatively non provocative in isolation.
R v Humphreys  CA
At 16 she became a prostitute, moved in with her boyfriend/pimp who mentally, physically and sexually assaulted her. One night, fearing ****, she cut her wrists. He came home and taunted her that she couldn’t even commit suicide so she stabbed him. The judge directed the jury to only consider the single provocative taunt about wrist-slashing in deciding if she had been provoked and whether this reaction was reasonable (i.e. proportionate). D was convicted of murder.
10 years later however, the CA allowed an appeal due to misdirection on provocation at her original trial. They criticised the trial judge as the whole relationship was relevant (cumulative provocation), not just the immediate preceding provocative conduct. CA substituted manslaughter conviction which allowed for her immediate release on time already served.
Reasonable man test (objective)
Section 3 Homicide Act 1957 required juries to take into account the effect the provocative conduct would have on a reasonable man. D needed to prove that the conduct would have provoked a reasonable man, AND made him react in the same way by killing. (Obviously realising however that the ‘truly’ reasonable person would never kill.)
Under the common law, the reasonable man was “normal” mentally and physically. None of Ds own characteristics were relevant.
Bedder v DPP  HL
D was taunted by a prostitute after he had attempted to have sex with her but failed. She taunted him about this failure and tried to get away from his grasp. In the course of her attempts to do so she slapped him in the face, punched him in the stomach and kicked him in the groin; whereupon he took a knife out of his pocket and stabbed her twice and caused her death. HL: Held that the reasonable man is not impotent, and therefore would not have been provoked by such a taunt. D was convicted of murder.
DPP v Camplin  HL
D (15 year old boy) was sexually abused by an older man who then laughed at him. D hit V on head with chapatti pan, killing him. The jury were directed to ignore the boys’ age and consider the effect this would have on a reasonable man. They were told to consider whether the provocation was sufficient to make a reasonable man in like circumstances act as the defendant did. Not a reasonable boy, as Mr. Baker would have it, or a reasonable lad; it is an objective test – “a reasonable man." D was convicted of murder, but the CA and HL allowed appeals. In overruling Bedder and substituting a manslaughter conviction.
Lord Diplock created a two part test:
- 1. For the purposes of self-control, the level is the power of self-control to be expected from a person of the age and sex of D.
- 2. For the gravity of provocation, the reasonable man shares Ds characteristics the jury think affect the gravity of the provocation.
Lord Diplock made it very clear:
- o Power of self-control = AGE and SEX.
- o Gravity of provocation = OTHER CHARACTERISTICS.
R v Smith (Morgan James) 
D and V spent the evening drinking but after an argument about whether V had stolen some tools belonging to D and sold them to buy drink, D picked up a kitchen knife and stabbed V. There was evidence that D was suffering from a depressive illness which might have reduced his threshold for reacting to provocation (power of self-control) but the trial judge ruled that this characteristic was not relevant to the reasonable man’s loss of self-control (in line with Camplin) and D was convicted of murder.
CA allowed the appeal saying the depressive illness was relevant and reduced Ds conviction to manslaughter (7 years).
The prosecution, having now lost, appealed to HL where on a 3:2 majority they also agreed that other characteristics were relevant to the power of self-control – in direct conflict with Camplin.
Therefore, the HL in R v Smith (Morgan James)  completely abolished the Camplin  two part test and said that the distinction was no longer relevant. They said that ANY CHARACTERISTIC WAS RELEVANT. Therefore, the question for the jury then became: Would the provocation have made the D act as the D did?! YES!!!
Attorney General for Jersey v Holley 
Both D and V were alcoholics and he had a history of violence towards her for which he had spent time in prison. On his release from prison she indicated that she did not want to continue the relationship. However, they continued to live together having constant rows. On the day in question they had both been to the pub in the afternoon. He returned early because of an argument. She returned in the evening and announced that she had had sex with another man. He picked up the axe, intending to leave the flat and chop wood, when the deceased said, "You haven't got the guts" he hit her with the axe 7 or 8 times. At his trial he raised provocation, and wished to rely on his alcoholism, depression and other personality traits. Following failed re-trials and appeals, D was eventually convicted of manslaughter but the Attorney General appealed to the Privy Council arguing the decision in Smith (Morgan) was wrong and should not apply in Jersey. On a 6:3 majority, it was decided that ONLY AGE AND SEX WERE RELEVANT TO THE POWER OF SELF CONTROL. OTHER CHARACTERISTICS WERE NOT RELEVANT.
R v James; R v Karimi 
As Holley  was in the PC, it is only persuasive precedent, however, a 5 panel CA in R v James; R v Karimi  broke the strict rules of precedent and followed Holley  rather than the HL in R v Smith  as they should have done. CA stated that, although it would normally follow HL, in exceptional circumstances it would follow PC.
Circumstances surrounding Holley were exceptional, and even the three in the minority accepted the majority decision settled the matter for England as well as for Jersey. “Is Holley binding on English courts?
There may be a purist strain of argument to the effect that it is not, since it concerns another legal system (that of Jersey). However, the reality is that nine Lords of Appeal in Ordinary sat in this case, and that for practical purposes it was intended to be equivalent of a sitting in the House of Lords.”
Problems with provocation
1. THE REASONABLE MAN: Judges have seriously struggled with this term. Cases on this point reached the HL 4 times in 20 years.
2. NO LIMIT TO PROVOCATIVE CONDUCT: Completely innocent conduct would be provocative.
3. DEFENCE OF ANGER, BUT NOT COMPASSION OR FEAR: A range of emotions can affect ability to lose control, no moral reason why ‘anger’ should be singled out for preferential treatment.
4. BLAME THE VICTIM: Defence also encourages a culture of blaming the V for their behaviour, which can obviously be very distressing for Vs family.
5. DISCRIMINATES AGAINST WOMEN: Lashing out is typically seen as a male response. Women often do not respond in this way because they cannot (lack of physical strength for example) yet women can lose self-control just the same. “The slow burn."While few would argue that men who beat up their wives deserve to be killed, the law should accept that women who react after considerable violent abuse are probably doing so out of desperation rather than a planned killing.