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Provocation S.3 Homicide Act (1957) - Coggle Diagram
Provocation S.3 Homicide Act (1957)
The defence of provocation was drafted at a time when the death penalty was the mandatory sentence for murder, regardless of the circumstances.
It was thought that there are circumstances where people would lose self-control and, in these circumstances, mitigation should be allowed.
Provocation was both a special and partial defence giving judge's discretion in sentencing an offender.
The defence of provocation contained a two-part test;
1) Subjective Test
The subjective test asks whether the defendant was provoked to have a sudden and temporary loss of self-control.
Provocation conduct
Provocation may be ‘by things done or by things said or by both together’, so words alone did suffice.
The provocation act need not be illegal; in
Doughty (1986)
it was held that the persistent crying of a baby could amount to provocation. The provocation need not have been directed at the defendant.
A sudden and temporary loss of self- control
The loss of self-control must be due to a loss of temper.
The case of
R v Cocker (1989)
shows that this can produce harsh results where a ‘mercy killer’ was not afforded the defence as there was no loss of temper.
An important but controversial qualification was laid down in
R v Duffy (1949)
which was that the loss of self-control must be ‘sudden and temporary’.
This was unlikely to be the case if the murder was committed for revenge, since the desire for revenge means that a person has had time to think.
The existence of a ‘cooling off period’ is a piece of evidence which the jury may use to decide whether at the time of the killing the defendant was deprived of self-control.
This was emphasised in the case of Ahluwalia (1993)
2) Objective Test
This test asks whether a reasonable person can be given particular characteristics of the defendant in assessing whether they would have reacted in the way the defendant did.
In
DPP v Camplin (1978)
the House of Lords allowed the defendant's appeal on the basis that the reasonable man should have attributed to him the same characteristics as the defendant, and this clearly included age and sex.
However, the word ‘characteristic’ caused confusion, regarding if it is only restricted to age and sex?
In
Ahluwalia
, the court raised the possibility that ‘battered woman syndrome’ might constitute a characteristic. This was confirmed by the Court of Appeal in the case of
R v Thornton (1996).
However, Camplin suggested that some characteristics cannot be taken into account e.g., quick temper or being drunk.
There was a serious conflict on the interpretation of this area of law which contributed to it being abolished.
In
Jersey v Holley (2005)
the Privy Council stated that the defendant’s chronic alcoholism was not a matter to be taken into account.
The Privy Council decided that the reasonable person had to be an objective standard in all cases. Mental abnormality should not be taken into account. A reasonable person has the power of self-control to be expected of an ordinary person of like sex and age.
Criticism of the old defence of provocation
Difficulties for the jury
The questions put before a jury on the issue of provocation can be difficult to answer.
The Government decided this area of law was in need of reform. The defence of provocation was abolished and replaced with loss of self-control.
Women who kill are treated differently from men
The cases of Ahluwalia and Thornton highlighted the problems of the requirement for "a sudden and temporary loss of self-control", which is essentially a male response.