Homicide Act 1957: Provocation

Old Law: Provocation (Homicide Act 1957, s.3)

• Partial defense that reduces murder to voluntary manslaughter.
• The defense requires evidence of things said or done that caused provocation.
• The defendant must have lost self-control due to the provocation.
• Provocation must be such that a reasonable person would have acted in a similar way.
• The law may be unfair to domestic abuse victims.
• Legal source is Homicide Act 1957, s.3

Key Concepts

• The loss of control had to be sudden and temporary, R v Duffy [1949].
• Limitations of the "sudden" requirement were demonstrated, particularly for abused women, R v Ahluwalia [1992].
• Delay in reaction negated the defense, R v Thornton [1996].
• Age and sex are relevant to reasonable person test, R v Camplin [1978].
• Depression can be considered in reasonable person test, R v Morgan Smith [2000].
• Only age and sex are relevant, Attorney General for Jersey v Holley [2005].
• Combines subjective (actual loss of control) and objective (reasonable person) elements.
• Defined provocation causing a "sudden and temporary" loss of self-control, R v Duffy [1949].
• Age and sex are relevant in assessing the reasonable person, R v Camplin [1978].
• Demonstrated the limitations of the "sudden" requirement, particularly for abused women, R v Ahluwalia [1992].
• Delay in reaction negated the defense, R v Thornton [1996].
• Considered the defendant's characteristics in the objective test, R v Smith (Morgan) [2000].
• Reasserted that only age and sex are relevant in the objective test, Attorney General for Jersey v Holley [2005].

Criticisms

• The sudden loss of control disadvantaged women, particularly those in abusive relationships.
• Courts varied applying the reasonable person test, leading to unpredictability.
• Almost any conduct was considered provocation, making the defence too expansive.
• "Sudden" excludes abuse victims.
• There are inconsistent tests for reasonable "person".

New Law: Loss of Control (Coroners and Justice Act 2009, ss.54-55)

• The partial defense reduces murder to manslaughter.
• The legal source is Coroners and Justice Act 2009, ss.54-55.

Structure

• The defendant's actions resulted from a loss of self-control (subjective test, removed the sudden requirement).
• Need not be sudden (s.54(2)) key change from old law.
• Cannot be a "considered desire for revenge" (s.54(4)).
• High threshold (difficult to establish) Dawes [2013].
• Cumulative impact of events acceptable (addressing Ahluwalia/Thornton problems).
• Defence to raise issue; prosecution must then disprove beyond reasonable doubt.
• Must have causative link to qualifying trigger (s.54(1)(b)).
• Evidence of planning/premeditation defeats the defense, Jewell [2014].
• The loss of control had a qualifying trigger (fear trigger and anger trigger).
• Fear of Serious Violence (s.55(3)): The defendant feared serious violence from the victim.
• Aimed at abuse survivors.
• Doesn't require imminent threat unlike self defence.
• Fear doesn't usually cause loss of control because it is rational or controlled response.
• Conflicts with self-defence; fear = rational, LoC = irrational.
• Things said/done must be extremely grave and cause justifiable sense of being seriously wronged.

Cases

• Minor acts do not qualify; the fear must be of serious violence, R v Dawes [2013].
• Infidelity is not enough.
• Defence intended to be narrow.
• Emphasised high threshold for loss of control.
• Minor altercation = fails test- its not extremely grave of character - mental health issues cannot lower threshold, R v Bowyer.
• Mental conditions are only relevant if they affect the defendant's perception of events, R v Rejmanski [2017].
• With depression, defendant killed wife after discovering affair.
• Mental conditions cannot affect general capacity for tolerance/self restraint.
• May be relevant into other aspects - gravity of perceived wrong.
• Courts apply very strict standard where extreme grave act is extremely overwhelming, Parsons.
• Vague terms and tough to apply because statutory terms lack precise definitions such as 'being seriously wronged' and 'extremely grave' is not defined, Reed & Wake.

Objective Test

• A person of the defendant's sex and age, with normal tolerance and self-restraint, and in the defendant's circumstances, might have reacted similarly.
• Voluntary intoxication is not considered in the objective test, R v Asmelash [2013].
• "In the circumstances of D" allows consideration of relevant context (more generous than Holley).
• Mental conditions are only relevant if they affect the defendant's perception of events, R v Rejmanski [2017].
• With depression, defendant killed wife after discovering affair.
• Mental conditions cannot affect general capacity for tolerance/self restraint.
• May be relevant into other aspects - gravity of perceived wrong.
• Judges must assess each element independently before allowing the defence to proceed, R v Goodwin [2018].
• Confirmed much more rigorous judicial evaluation.
• Clarification of procedural approach for judges when evidence is marginal.

Criticisms

• Conceptual Confusion: Combining fear and anger triggers leads to inconsistencies.
• These emotional states operate differently: anger leads to irrational, impulsive behavior; fear produces rational, calculated responses.
• Test still doesn't consider developmental immaturity in adults and children.

Exclusions (s.55(6))

• Sexual infidelity alone is excluded, but context may be considered, R v Clinton [2012].
• Old provocation law irrelevant to interpreting new provisions.
• Limited Parliament's intention to exclude sexual infidelity.
• Clarified the boundaries of sexual infidelity exclusion enforcing that it cannot constitute a qualifying trigger, R v Hatter [2018].
• The law's a "dog's breakfast" because the sexual infidelity exclusion creates artificial separation of motives in real life, Miles.
• Creates confusion when infidelity is part of larger abuse pattern, Norrie.
• Significant confusion about whether "effects" of sexual infidelity are also excluded, Parsons.
• Creates problematic line-drawing exercises for juries which requires artificial compartmentalization of defendant's motives.
• If the defendant incited the trigger, the defense is unavailable.
• Acts motivated by a desire for revenge are excluded (s.54(4)).

Key Cases

• Sexual infidelity alone is excluded, but context may be considered, R v Clinton [2012].
• Minor acts do not qualify; the fear must be of serious violence, R v Dawes [2013].
• Evidence of planning indicates no loss of control, R v Jewell [2014].
• Voluntary intoxication is not considered in the objective test, R v Asmelash [2013].
• Mental conditions are only relevant if they affect the defendant's perception of events, R v Rejmanski [2017].
• Confirmed much more rigorous judicial evaluation, R v Goodwin [2018].
• High evidential threshold for the defense, R v Gurpinar [2015].

Criticisms

• Combining fear and anger triggers leads to inconsistencies and the defence overlaps with self-defence and diminished responsibility, causing confusion.
• Despite reforms, challenges remain for abused women seeking to use the defence.
• Critics argue sexual infidelity exclusion does not reflect the complexities of human relationships and emotions.

Gender Issues and Domestic Abuse

• Removal of "sudden" requirement helped domestic abuse victims.
• Fear trigger (s.55(3)) explicitly introduced to accommodate women who kill abusers.
• Problems from Ahluwalia [1992] and Thornton [1992] addressed.
• Loss of control requirement still conceptually problematic.
• Women's experiences remain underrepresented and misunderstood.
• Limited practical impact for abused women who kill.
• Fear-based reactions may still be planned/controlled.
• Still primarily benefits male defendants despite reform.
• Women's typical reactions to abuse may not manifest as observable "loss of control".

Relationship with self-defense

• Unclear boundaries between defenses creates practical difficulties.
• Sequencing (addressing self-defense before LOC) risks confusion.
• Different burdens of proof create further complications.

Conceptual and Theoretical Criticisms

• Illogical to require both loss of control (irrational behavior) and justifiable sense of being wronged (rational judgment).
• Foundational issues with assessing "control" when degree of conscious control remains philosophically contentious.
• Attempting to address both anger and fear in same defense is conceptually confused.
• Emotionally driven killings are based on mischaracterization of psychological processes.
• Creates difficulties for defendants and juries.

Reform Evaluation

• It removed the unfair "sudden" rule of the old law.
• Recognizes fear as a trigger.
• Screening occurs in weak cases through judges.
• It attempts to address abuse victims.
• The concept of loss of control is still unclear.
• The sexual infidelity exception is inconsistent.