Voluntary Manslaughter Provocation
Difference between voluntary and involuntary Voluntary requires the same level of intention as murder, involuntary does not. When there is voluntary manslaughter, the defendant would otherwise be guilty of murder, but can plead one of 2 specific defences defined in the Homicide Act 1957: Provocation Diminished responsibility
Provocation This partial defence has been abolished by the Coroners and Justice Act 2009, and has been replaced by the partial defence of ‘loss of control’. They are partial because they do not result in a complete acquittal. Partial because it leads to a manslaughter, not murder charge.
Voluntary manslaughter Introduction Voluntary manslaughter was introduced by Parliament via the Homicide Act 1957. It was designed to cover the situation where the defendant has both the actus reus and mens rea of murder but the surrounding circumstances of the offence mean that the defendant’s liability is reduced from murder to manslaughter. These relevant circumstances amount to partial defences specific to a murder charge and are defined by the Homicide Act as diminished responsibility, provocation and suicide pacts.
Voluntary manslaughter: provocation Definition Provocation is defined in s.3 of the 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; 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.’
Voluntary manslaughter: provocation Elements • Provocation may be caused by things said or things done, or both together. There is no requirement that such things are illegal. • The provocation may come from or be directed at a third party. • There is a subjective and an objective element to the defence.
Voluntary manslaughter: provocation Subjective test The first question that the jury must ask is whether, as a matter of fact, the defendant was provoked to lose his or her self-control. It was held in Duffy (1949) that the loss of self-control must be ‘sudden and temporary’. This requirement is issued in order to avoid bringing killings carried out in revenge under the scope of the defence. Pre-planned attacks are not the same as provocation.
Voluntary manslaughter: provocation Objective test • If the jury is satisfied that the defendant did suffer a sudden and temporary loss of self-control, it must then ask whether a reasonable person would have acted in the same way. • The reasonable person is the same age and sex as the defendant and various cases have discussed what other characteristics the reasonable person shares with the defendant. • In Holley (2005), the Privy Council held that any other characteristics are only relevant to the gravity of the provocation. • The powers of self-control to be expected of a defendant are those of the reasonable person.
Voluntary manslaughter: provocation Burden and standard of proof Once there is some evidence of provocation, the judge must leave the matter to the jury. It is up to the jury to decide whether the defendant was provoked by things said or done or both together, whether the defendant lost his or her self-control as a result, and finally, whether a reasonable person of the same age and sex as the defendant but with ordinary powers of self-control would have acted as the defendant did.
Voluntary manslaughter: provocation Effect Like diminished responsibility, provocation is a partial defence that applies only to murder. If the jury finds that the defendant was provoked, the defendant’s liability will be for manslaughter rather than murder, and he or she will thus avoid the mandatory life sentence.
Voluntary manslaughter: provocation Cumulative provocation The requirement that the loss of self-control must be sudden and temporary has caused some to complain that the provocation defence operates in a way that discriminates against women. They claim that provocation is based on male reactions to violence. In order to combat this apparent sexism, the courts have accepted the idea of ‘cumulative provocation’, under which previous acts or words may be taken into account when considering whether the defendant was provoked.
Voluntary manslaughter: provocation Evaluation (1) Excuses murder Some critics argue that it is never justified to kill as a result of any provocation, and a sane defendant who kills another unlawfully should always be convicted of murder. Scope is too broad The Law Commission argues that the definition of provocation is too broad in that it includes behaviour that most people would not describe as provocative, such as a baby crying.
Voluntary manslaughter: provocation Evaluation (2) Scope is too narrow In some respects, the scope of provocation is viewed as too narrow. The requirement that the loss of control be ‘sudden and temporary’ has worked against defendants – particularly those in abusive relationships.
Voluntary manslaughter: provocation Evaluation (3) Holds the victim responsible for his or her own death Reliance on the defence of provocation necessitates examination of the victim’s actions. Where the victim is the one who has provoked the defendant, focus is placed on the victim’s conduct. Many view this as unfair, since deceased victims are unable to respond to any allegations made against them.
Voluntary manslaughter: provocation Evaluation (4) Sexual discrimination The defence of provocation is criticised for its seemingly discriminatory effect. Since it reflects the traditional male response to violence, women have found it difficult to meet the necessary criteria for a successful plea.
Voluntary manslaughter: provocation Reform (1) Redefine the defence The Law Commission detailed proposals for a reformed defence in ‘Partial Defences to Murder’, recommending that it should be available to those defendants who acted in response to: (a) gross provocation (meaning words or conduct or a combination of words and conduct that caused the defendant to have a justifiable sense of being seriouslywronged), or (b) fear of serious violence towards the defendant or another, or (c) a combination of (a) and (b) Furthermore, it is important that a person of the defendant’s age and of ordinary temperament in the circumstances of the defendant might have reacted in the same or a similar way.
Voluntary manslaughter: provocation Reform (2) The Law Commission stated that provocation should not apply where it was incited by the defendant for the purpose of providing an excuse to use violence, or the defendant acted in premeditated desire for revenge. Merge diminished responsibility and provocation into one defence The Law Commission considered doing this, but it did not believe that such a move would solve the current problems.
Voluntary manslaughter: provocation Reform (3) Abolish provocation It has been suggested that the defence of provocation should be abolished, but the Law Commission concluded that this should not be done as long as the mandatory life sentence remains for murder. Currently, there is no indication by the government that the mandatory nature of the sentence in murder cases is to be changed, so it appears that provocation will remain for the foreseeable future.
Coroners and Justice Act 2009 LOSS OF CONTROL S.56 abolished s.3 of Homicide Act s.54 and 55 introduced new defence of ‘loss of control’ 54 sets out the circumstances 55 defines more fully the ‘qualifying triggers’
In what circumstances does the new defence apply The defendant must at the time of the offence have lost self-control resulting in his killing of a person in one of 3 types of situations. These are the qualifying triggers from the Act: • The defendant fears serious violence • Certain things have been said or done which amount to circumstances of an extremely grave character, and cause the defendant to have a justifiable sense of being seriously wronged • when a combination of the first 2 situations apply
Fear of Serious Violence Subjective test The defendant does not have to prove that their fear was reasonable, just that it was genuine. The fear must be in respect of the defendant himself, or some other identifiable person. Not towards someone that they do not know.
Things said or done (or both) Must amount to circumstances of an extremely grave character Objective test – jury decide Sexual infidelity does not apply
Factors to be considered for the defence to succeed Characteristics Jury must acknowledge that a person with the same characteristics may have acted in the same or similar way • Same age and sex (Camplin 1978) • Ordinary level of tolerance and self-restraint* • Same circumstances as the defendant *any circumstances are to be taken into account except those which affect tolerance and self-restraint e.g. known short temper
Delay The defendant’s loss of control need not now be sudden, however a delay may be taken into account: By the judge when deciding to leave the defence to the jury. By the jury when deciding if the killing resulted from a loss of self-control This is different from the previous law which stated it had to be ‘sudden and temporary’.
What happened in the cases: Ahluwahlia (1992) Thornton (1996)
Revenge is not available as a defence – still the case even when as a result of one of the qualifying triggers. Incitement – defence is not available if the defendant deliberately incites one of the qualifying triggers to provide an excuse for violence. Where the jury feel that there is enough evidence to raise ‘loss of control’, it is up to the prosecution to disprove the defence beyond reasonable doubt.
Conclusion • Is there a qualifying trigger present? Does it justify a loss of control? • Would a person of the same age and sex as the defendant with an ordinary level of tolerance and self-restraint, and in the same circumstances as the defendant have acted in the same way? • Was there a delay? How far is it relevant? • Was there an element of revenge, incitement or sexual jealously?
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Things done or said • Provocation can be caused by both actions and words. What was provocative in these cases? • Doughty • Pearson • Baillie
Provocation aimed at another • Provocation aimed at another person can suffice if the effect was that D lost control because of it • In Pearson,the boy killed his father because of the father’s abuse of the boy’s younger brother • In Bailliethe threat was to D’s son
Loss of self-control • The loss of control must be ‘sudden and temporary’ • This comes from Duffy, which was before the Act but has been confirmed in later cases • If there is a ‘cooling-off’ period between the provocative conduct and the killing the defence may fail - Ibrams & Gregory • This has led to problems in ‘slow-burn’ cases • Thornton and Ahluwalia are two examples
Exam tip • Cases such as Thornton and Ahluwalia show the overlap with diminished responsibility • Be prepared to discuss both defences in cases where factors such as ‘battered woman syndrome’ are apparent • Abuse over a long period could lead to an ‘abnormality of mind’ from an ‘inherent’ cause • Diminished responsibility may succeed where provocation could fail due to the time lapse
The reasonable person test • Case law has developed what characteristics can be attributed to the reasonable person • Camplinis the starting point, overruling Bedder • Age and sex are taken into account to decide whether a reasonable person (of the same age and sex) would have lost control • The jury can take into account ‘other relevant characteristics’ which could affect the gravity of the provocation
Characteristics and self-control • Age and sex can be taken into account – Camplin • Other characteristics have included • Glue-sniffing • Battered woman syndrome • However, the current law is that the jury should not take into account D’s mental state when looking at the objective test, the standard of self-control expected of the reasonable person - A-G v Holley
Characteristics and gravity • The other relevant characteristics would have to be related to the provocation • Being fat would be a ‘relevant characteristic’ if D was provoked about being fat but not otherwise • Can you think of other examples?
To sum up • Holley was confirmed in James;Karimi • When looking at what self-control is expected only age and sex are taken into account • When looking at the gravity of the provocation (the effect on D) other relevant characteristics can be taken into account • Compare Smith (Morgan James)and Holley • Which decision do you think is preferable?
Finally • Once there is evidence of provocation, the burden of proof is then on the prosecution to show beyond reasonable doubt that D was not provoked • So look for: • Evidence of provocation • Loss of self-control • Whether a reasonable person would have done as D did
Problems & developments • Too many characteristics of D are attributed to the reasonable man, who isn’t then reasonable at all • Since Holley this may no longer be the case • The need for loss of control to be ‘sudden’ discriminates against woman who have a ‘slow-burning fuse’ • The new proposals may have solved this one too, see reforms