The defence to this case is voluntary manslaughter. All set out in s3 Homicide Act 1957 - “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”. However Act doesnt explain what amounts to provocation. Thus the we need to impose a two-stage test for the jury to apply:
1. A subjective test – did the defendant lose his self-control?
2. An objective test – would a reasonable man have lost his self-control?
What can be provocation?
- Can be things done or said, or both.
- Includes physical assaults, homosexual advances, crying of a baby etc.
- Victim does not need to deliberately aim the provocation at the defendant. Acts which provoke the defendant can also be aimed at another person.
Jury must be satisfied that the defendant lost his self-control as a result of the provocation.
Test: in Duffy: the defendent had an argument with husband, she left room and changed clothes. When husband was in bed she attacked him with a hammer. Conviction for murder was upheld because the court said 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 master of his mind’. Therefore it cannot be a revenge killing, it has to be an immediate response – the killing must be in ‘hot blood’. Concept of a sudden and temporary loss of self control has been approved in the Court of Appeal in several cases following.
Provocation only available where Defedent suffers a sudden loss of self-control.
- Time Lapse – the killing must be in ‘hot blood’
- Time lapse between the provocation and the killing.
- Longer the time lapse between provocation and killing, the less likely the defence will succeed. In Ibrams: ex-boyfriend of Ibram’s current girlfriend had been visiting the flat of Ibrams and his girlfriend, and had been terrorising them. Ibrams called police, but they done nothing. Ibrams and girlfriend decided to kill him when he was sleep. Convicted of murder. Upheld as no evidence of any provocation; had been a time lapse, all he said was in the past.
In Baillie the Victim supplied sons with drugs and was threatening with violence, Defendent drove to Victim and shot him. A lapse of time tends to equate a desire for revenge, it is still possible for a sudden and temporary loss of self-control. Argued describes psychological characteristics of only 50% of population – males – gender specific defence, as a reaction a male would have – more likely that men would respond quickly with violence. Women take longer to lose self-control – known as ‘slow burn’.
In Domestic violence victims – would they need to prove a sudden and temporary loss of self control? Psychology suggest women do not have sudden and temporary losses of self-control, and often take other means to deal with it. In Ahluwalia: D had been physically abused over many years by the husband. Her husband, before bed threatened her with violence unless she paid a bill. When he fell asleep, she poured petrol on him and set him alight. Died 6days later. Convicted of murder, but appealed. Court of Appeal did not allow appeal on basis of provocation. Said defendant’s reaction to provocation had to be sudden rather the immediate – longer the delay, more likely it was a deliberate act. Did allow appeal on basis of diminished responsibility. Court of Appeal suggested only Parliament could reverse effect of Duffy – time lapse is critical, had a few hours to think of actions. Defence available if can be proved the defendant suffered the ‘slow burn’. Cannot have a time lapse, apart from a ‘slow burn’. In Thornton: Held there could be a sudden loss of self-control triggered by a minor incident – the last straw which sparks the killings. ‘Battered Woman Syndrome’ could be relevant in explaining the slow-burn reaction. Quashed conviction.
The Objective limb
In S3 Homicide Act 1957 the jury must take into account effect the provocation would have on a reasonable man. Its a matter for jury – “in determining the 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”
In Bedder v DPP, Originally courts ruled reasonable man was an adult who was normal mentally and physically, which seems unfair. Defendent was impotent – prostitute taunted him about this, and stabbed her to death. Conviction upheld as under reasonable man test the jury had to ignore fact of impotence and effect on provocation. However there is now a new reasonable man standards, In Camplin it was held that age, sex and other relevant characteristics should be taken into account when considering how the reasonable man would respond to the provocation. 15year old boy sexually abused by an older man who laughed at him. Camplin reacted by hitting man with a pan. Judge directed jury to ignore boy’s age and see effect of provocation on reasonable man – convicted of murder. Appealed, where House of Lords overruled Bedder substituted manslaughter.
Lord Diplock:
"referred to... Is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other aspects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him."[/b]
For purposes of self-control the level is power of self-control expected from a person of the age and sex of the defendant. Courts won’t take certain personal characteristics that affect his self-control, such as how a reasonable drunk man would react. For gravity of provocation, the reasonable man shares such of the defendant’s characteristics as the jury think would affect the gravity to the defendant.
We also need to look at gravity of the provocation, in Camplin – examples of characteristics which would affect the gravity of the provocation, where provocation was aimed at one of those characteristics – included age, sex, race, colour, ethnicity, deformity, impotence, shameful incidents etc. For females, pregnancy or menstruation may also be relevant characteristics. Camplin stated age and sex in account when considering power of self-control expected from reasonable man. The Courts uncertain however whether any other characteristics could be taken into account on this point. In Thornton the Battered Woman Syndrome may be relevant to the level of self-control. In Privy Council case of Luc Thiet, it was held mental abnormality could not be taken into account when considering level of self-control to be expected from the defendant.
from the facts of the case, it could be construced that the defedent will not be convicted for murder but will be convicted of voluntary manslaughter. the conviction of murder will be negated by the defence of provocation.
Hope that helps.
God Bless 
