Provocation As A Defence - Essay Example

Under the English common law Provocation as a defence has been considered as a valid defence since last many centuries especially in cases of murder and wherever it has been proved to be a valid defence worth consideration then in that case the murder charge has been converted to man-slaughter.The killings done by the accused has been condoned because according to the judge and the jury it was done in a state of anger aroused by some or the other kind of provocation. According to Horder,Provocation and Responsibility(1992)Chap1 the taking of Provocation as a defence has been going on since the medeival times. The Royal Commission on Capital Punishment, which reported in 1953, concluded that the defence was, in some respects, too rigid and exclusionary.(Cmndt.8932,para.141) Its recommendations lead to the enactment of section 3 of the Homicide Act 1957 : Where on a charge of murder there is evidence on which a jury can find that the person charged was provoked (whether 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; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man. The early lawyers had a difficulty in arriving at a clear distinction between homicide committed in self-defence(se defendendo) and homicide committed by misfortune (per infortunium). It was accompanied by a confusion between cases of killing in self-defence and killing when under the influence of some physical provocation. Browns case in 1776 is a perfect example of the dilemma faced by Lawyers. In several of the early cases in which a death was caused by a person who was resisiting an unlawful arrest it will be seen that the two ideas of self-defence and provocation are interwined.(1) An example of this mixture of the two is also found in Lord Holts remarks in the case of R v. Mawgridge(2) in 1706 on the question "what is in law such a provocation to a man to commit an act of violence upon another whereby he shall deprieve him of his life, so as to extentutae the fact, and make it to be a manslaughter only." Apart from the right of self-defence, it came to be considered that the term malice aforethought, regarded as a manifestation of a "wicked,depraved,malignant spirit"(3) was hardly appropriate to describe the mental state of a man who had lost control of himself under the sting of such attack as would inflame any ordinary person. In old times there were no clear and consistent principles governing the decisions of the courts in such cases, many of which were reached on the objective facts of the case(4) According to Foster the defence of provocation rested upon the fact that the killing was done on a sudden impulse, as it were, an instinctive, animal-like reaction to an unforeseen attack, which had caused the killer momentarily to lose his self-control. In his view such was human fraility that it must be accepted that in a situation of sudden strain any man might give way to ungovernable passion, and the law. Whatever confusion this subject of law had in the earlier times but one point emerged very clearly that the case in which provocation fell to be taken into account was one in which the offender had intentionally struck a deadly blow, but had done so in the heat of blood and sudden passion aroused by the attack previously made upon himself, or upon someone with whom he was associated. In such a situation the slayer had been temporarily deprived of his self control and could not fairly be regarded as acting under malice aforethought, as that expression was then understood, because he acted under an instinctive reaction of ungovernable anger, whereas malice aforethought at that time implied some wicked and calculated plan. In the case of Mawgridge(5) Holt C.J. discussed the law of Homicide committed under provocation. He observes that malice after thought can exist although the act be sudden, so long as there is no provocation, but in the cases which he gives as examples of provocation reducing murder to manslaughter there is clearly an intention to kill. In Rv. Hall(6) the Court of Criminal Appeal referred with approval to the words of Tindal C.J. in the case of R v. Hayward(7) : It would be for them” (the jury) “to say, whether the prisoner had shown thought, contrivance, and design, in the mode of possessing himself of this weapon and again replacing it immediately after the blow was struck; for the exercise of contrivance and design denoted rather the presence of judgement and reason, than of violent and ungovernable passion.” It thus appears that in 1833 the law as to provocation was comprehensible and settled. From that time onward it will be found that the judgments of the courts have created doubts and inconsistencies, with the result that at the present day( notwithstanding some simplification effected by section 3 of the Homicide Act, 1957), the exact law on this matter is a subject for controversy and, it is submitted, no one can state definitely what it is. An examination of this course of development reveals the same defect of confusing a point of evidence with a point of law, such as we have seen has obscured the law of murder in general. The decline it is believed that began from the year 1869 after the judgment of Keating J. in R v. Welsh(8). Up to this point the law was clear. Provocation as a defence only arose in a case where there had been intentional killing. Intention springs from desire and while self –control can repress desire and thus enable reason to check the formation of a harmful intention it would seem obvious that loss of self control may leave desire unbridled so that a harmful intention is the more easily created. It would accordingly be a non sequitur to maintain that since malice aforethought means an intention to kill, therefore a provocation which deprives a man of his self-control negatives malice afterthought. The impact of section 3 of the Homicide Act on the common law has been the subject of many appeals. The most fundamental, of these changes is that, if there is evidence that Mr. D has lost self control as a consequence of provocation, the issue of provocation must be put before the jury.(9) Prior to the enactment of section 3, there were two ways in which a trial judge could remove the issue from jury despite evidence that D had killed in a state of anger induced by provocation First, what might constitute adequate provocation fit to go to the jury was constrained by judicial discretion. In general terms, only violence or an act of adultery witnessed by D were allowed to count. Other forms of conduct and, in particular, “mere words” were ruled to be inadequate.(10) Secondly, even if D had responded to conduct which was recognized a form of provocation, his plea could nonetheless be dismissed by the judge’s ruling that D’s response to the provocation was disproportionate: “the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter.”(11) These two restrictions on the availability of the defence are expressly removed by the terms of section 3. Provocation may now take the form of “anything said or done”, thereby opening up in the broadest terms the kinds of conduct, physical or verbal, which are admissible provocation. Once there is credible evidence of provocation, it is for the jury and not the judge to resolve the issue of proportionality: it is for them to decide “whether the provocation was enough to make a reasonable man do as he did.” Indeed, the latter change has been widely construed. Ordinarily, on general principles, a judge is entitled to withdraw a question of fact from the consideration of the jury if he considers that the factual issue to be resolved does not arise on the evidence before him. On that approach, were a judge to take the view that D’s response was grossly disproportionate to the provocation he endured, he would be entitled to withdraw the issue on the basis that no reasonable jury would find that a reasonable man would have done as D did. As interpreted, however, section 3 requires that he jury must resolve this issue, although they may receive guidance on the issue from the judge.(12) Further interpretations of section 3 remove other restrictions. At common law, provocation as typically formulated is something done by the deceased to the accused. D could not raise the plea of provocation if he killed V in a response to something done by W.(13) It was less clear what the position was if he killed V on account of something V did to W rather than to D. However in Davies,(14) the Court of Appeal ruled that the phrase “ everything both done and said” in section 3 implies that all sources of provocation, whether or not they emanated from the deceased, must now be considered. Likewise, there are no restrictions on a jury’s assessment of the question whether the reasonable man would have done as the accused had done; the jury had to consider D’s conduct, whatever it was, and then evaluate it in terms of section 3. Whenever a provocation plea is raised, relevant issues fall within two spheres, commonly referred to as the subjective element and the objective element. The subjective element of the defence concerns whether D actually lost self-control because of something that counts as provocation. If that condition is satisfied, the jury must go on to consider the objective element, the issue of how a reasonable person would have responded to the provocation. Two questions arise from this ground of defence: would the reasonable person have lost control on account of provocation of the same kind that was endured by D? And if a reasonable person would have lost her/his self control, would he/she have acted as did? The nature of Provocation (a) By physical attack on the person The old view has been that that the only provocation which would extentuate an intentional homicide was one which took the form of a physical attack. On this principle in R v. Taylor(15) Lord Mansfield said “ It is settled that words are not sufficient provocation, but blows are a sufficient provocation to lessen the crime into manslaughter.” (b) By discovery in adultery The exceptional instance, where a man finds another in the act of adultery with his wife. This was from very early times accepted as an affront “ of so grievous a nature as the law reasonably concludes cannot be borne in the first transport of passion.”(16). The older authorities and the decided cases in modern times all dealt with the situation in which the husband killed the wife or her paramour whom he discovered in the act of adultery, but it seems to have been laid down by the House of Lords in 1946.(17) that the rule must nowadays be applied to either spouse alike. Differing views have been expressed in the courts from time to time as to the effect in law of a confession, a suspicion, or an expectation of adultery, but the difficulties which these varying judicial dicta have raised, seem now, so far as concerns the criminal law to be administered in England and Wales, to have been disposed of by the Homicide Act,1957. (c) By Words The difficulties that the cases created in deciding to what extent if at all words alone, or words or gestures combined with blows, could in law constitute sufficient provocation are now disposed of by section 3 of the Homicide Act that has declared that the provocation may be “ whether by things done, or by things said, or by both together.” But if the ancient authorities and the old cases are studied it can be seen that references to the mode or weapon adopted in response to the provocation are all concerned with the evidential value of such facts; they are mentioned for the assistance which they can give for reaching the critical decision on the fundamental question as to the impulse which prompted the particular response; was it(a) a sudden surge of ungovernable fury that the fraility of human naturecould not be expected to withstand, or was it (b) a voluntary satisfaction of a wicked desire? There is no enunciation of a doctrine that has developed since the case of Mancini v. D.P.P. in 1942, that it is a rule of law that “the mode of resentment must bear a reasonable relationship to the provocation” The Subjective Element of Provocation The subjective requirements of provocation should be that : (a) There must be something said or done; (b) In consequence of which the accused lost self – control. There should be clear cut case that something that has been said or done to the accused categorically and not indirectly. Further clear cut evidence is needed to show that as a consequence the accused has lost self – control. The classic direction on the matter given by Devlin J. in Duffy(18) speaks of a : “sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her not master of his mind.” The Objective Element of Provocation When dealing with the objective element of provocation as a defence, the jury must consider the impact that the provocation would have had on a reasonable person. Essentially, they must ask whether a reasonable person might have lost control in the given situation. The reasonable person standard should be taken very seriously by the jury and in the light of facts and circumstances of each case it must judge that how if a reasonable person without any prejudices and biases placed in similar set of circumstances be expected to react. Reasonable conduct should not be punished. If a reasonableness standard were truly applied in provocation cases, we should anticipate absolute discharges as the typical sentencing outcome of a successful plea. Yet considerable terms of imprisonment are imposed on persons found guilty of manslaughter on this ground. Although, a number of judgments have been given on the reasonable person standard test to judge the magnitude of provocation in a given case and whether it was sufficient in the set of given circumstances so as to incite the accused to commit the crime. Despite that there has been a number of conflicting views from the very beginning between the Court of Appeal, The Privy Council and the House of Lords. It can be said that there is no set and clear cut formula to define the defence of provocation and whether in a given case a accused person can be let of the hook of the crime of murder and instead be convicted of man slaughter because of the plea of provocation raised by him. Over the years the defence of provocation and the decision based on the facts in view of the subjective , objective tests and the tests of reasonableness and also after the legislation of Section 3 of the Homicide Act the majority view has been that it all boils down to the view of the jury members and cannot be confined within the four corners of law. It can be positive in a given case and can be negative in another although in broader terms the facts of both the cases may be same. It all comes down to the discretion of a few individuals. In addition to that it can also be said that Accused persons have been misusing the defence of provocation by raising it in cases when it is not warranted. In a number of cases where malice is clearly visible on the face of it and that explains the intention for committing the murder but the jury negates the facts and sometimes takes the defence of provocation and as a result ignores the malice present in the conduct as an offshoot of the grave and sudden provocation. Sometimes it is often ignored that the whether the crime committed has been the natural corollary of the provocation taken by the accused. Whether the accused had sufficient time to regain his self control and composure or not. In a number of cases these vital facts are missed and that results in injustice to the victims. Some of the eminent legal commentators advocate for the abolition of the defence of provocation. It is a proposal that merits serious consideration as the force and rationale of this ground of extenuation are not easy to state. A condition of angry loss of self-control is at the core of provocation. Yet anger is a criminal emotion and one of the key deterrent tasks of the criminal law is to provide incentives for citoizens to curb violent responses induced by their angry states. A person disposed to respond to frustrations and setbacks with an angry loss of self control culminating in serious violence would thereby demonstrate a dangerous and deficient character and should not be accorded any form of condonation. Moreover, the partial condonation of angry violence through a provocation defense comes with an inbuilt gender bias because it clearly privileges persons with an effective capacity and disposition spontaneously to kill others. The English Law Commission has recently published its final proposals for a reformed law of provocation. The recommendations come in two parts : situations where (i) accused acts in response to a fear of serious violence; and (ii) accused acts in response to words or conduct that constitute “ gross provocation.” In cases of fear of serious violence, accused will be convicted of second degree murder rather than first degree murder, provided a person of the accused’s age and of ordinary temperament, in the given circumstances might have reacted in the similar way. This development is welcome and seems entirely suitable to cover without strain domestic violence cases such as Thorton(19) and Ahluwalia(20) It also caters to the demands of the long drawn of several activists who had been crying hoarse over the years over the defence of provocation as being flawed and bloated. End Notes : 1. See Stephen, 3 H.C.L., pp.62-68,71,commenting upon the confusion of ideas in Hales treatise 2. (1706)17St.Tr.57. 3. Foster,C.C. & C.L.256 4. See Hale 1 P.C.,pp. 455-457. 5. (1706) Kel.119 6. (1928) 21Cr.App.R. 48 at p.54 7. (1833) 6 C.& P.157 at p.159 8. (1869) 11 Cox.336 9. Doughty (1986) 83 Cr App R 319 10. Holmes(1946)AC588,600. 11.Mancini(1942)AC1,9 12. Phillips (1968) 58 Cr App R 133(PC) 13. Simpson (1915) 84 LJKB 1893 (CCA) 14. (1975) QB 691(CA) 15. (1771) 5 Burr.2793,2796 16. East 1 P.C.234 17. Holmes v. D.P.P. (1946)A.C.588 at p.600 18. (1949) 1 All ER 932n (CCA) 19.(1992) 1 All ER 306 20 (1992) 4 All ER 889 Bibliography Russell on Crime(12th Ed). J.W. Cecil Turner. Sweet & Maxwell Ltd,UK. Simester & Sullivan, Criminal Law Theory and Doctrine, 3rd Edition (Hart Publishing: 2007) Draft & Notes : I will be making my research and will base my essay upon the broader point’s enumerated below. The list of text that I will be referencing has been mentioned in the Bibliography of my Essay. What’s Provocation ? Defence of Provocation defined as per Section 3 of the Homicide Act. What has been the old view regarding the defence of provocation. By old view I mean till the new interpretation emerged. What’s the current view in light of the newer judgments and the understanding developed according to new interpretations? What’s the difference between Self Defence and Provocation ? I will be elaborating on the concept of Malice involved in the intention to commit a crime and the lack of it that justifies the sufficient provocation a person gets to commit a crime without malice. What has been the impact of Section 3 of the Homicide Act. I will try to explain the nature of Provocation and the impact it has on the crime committed. By nature of Provocation I mean that the various ways that the judiciary and the legislature recognize that can give a person sufficient provocation to commit a crime of the gravest nature. After that I will try to explain the subjective and the objective element involved in the defence of provocation. How a reasonable person will think and act in similarly placed circumstances is a important point to be explored while writing this Essay. There has been difference of opinion between the Court of appeal, the privy council and the House of Lords over the defence of Provocation in some cases. It has to be discussed that how it can be said that the Defence of Provocation in some cases if taken is in fact flawed and bloated out of context. The role of Law Commission of England regarding this has to be discussed. The recommendations and proposals of the English Law Commission have to be discussed. Read More