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Yasmin Daswani (Former Writer)
Yasmin is currently a third year law student at Durham University. Yasmin aspires to be a solicitor and is currently interested in criminal and family law. Outside of her studies, Yasmin is a passionate sportswoman; she is part of her university waterpolo team.
The common law defence of provocation was one of the most controversial elements of the criminal law of England and Wales before it was reformed by the Coroners and Justice Act 2009. There were many criticisms of the old rule that led toits alteration, but many of these problems have not been fully addressed.
Imagine afather is put in charge of his very young child because the mother needs intensive care. One night, the baby is inconsolable and will not stop crying. The husband tries to keep the baby quiet, but to no avail. Due to his excessive tiredness and the incessant noise, he loses his temper and tries to silence the 17-day-old baby by putting cushions over his head and kneeling on them. The baby dies. Under the common law defence of provocation, the father has a partial defence to a charge of murder, and his sentence is reduced from mandatory life to five years. (R v Doughty (1986) 83 Cr App 319)
The Law Commission sought to reform this defence so that decisions like the one in Doughty would no longer be followed.
The old defence of provocation contained in s3 of the Homicide Act 1957 was based on Devlin J’s dicta in R v Duffy  1 All E.R. 932:
Provocation is some act, done by the dead man to the accused, which would cause in any reasonable man a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him not master of his mind.
The Law Commission identified several other issues with this law in its report:
The objective requirement
The first issue was implicit in the case of R v Doughty: that the objective ‘reasonable person’ test under the 1957 Act had become too subjective, enabling a defendant to rely on personal characteristics which made him more short-tempered than other people.
The gender bias
The classic example of provocation in the nineteenth century was where a man found his wife committing adultery, and this was later expanded to include cases where men were able to use the defence to claim that their wife’s constant ‘nagging’ caused them to lose their self-control. (R v Welsh (1869) 11 Cox CC 336) In such cases the resulting sentence was often remarkably low.
Domestic violence and ‘slow burn’ provocation
There is clear evidence showing that the majority of women who kill their partners have been abused by them. Statistics indicate that one woman in four will experience domestic violence at some stage in her life and that domestic violence accounts for one-quarter of all violent crime. Women who have killed their abusive partners after months of abuse have found it difficult to find a defence in the criminal law: self-defence is not available if the defendant is not facing an imminent threat so many defendants have sought to rely on provocation.
Yet one of the difficulties that battered women have faced is that the law has been slow to recognise a defence in cases of a ‘slow-burn’ reaction. Rather than lashing out in anger in response to a specific incident, some battered women will accumulate pain and torment and will only exhibit violence some time after the provocative incident as their domestic life becomes unbearable. The law sympathised with men ‘snapping’ upon discovering their wife having an affair, but not with women who were driven to kill after years of torment.
A classic example is the case of Ahluwalia  4 All ER 889 (CA) The defendant suffered many years of violence and abuse from her husband, including an attempt to kill her. One evening her husband threatened to attack her. That night, while he was asleep, Ahluwalia poured petrol over him and set him alight. The husband died from the burns he received. The old law on provocation took a narrow view of loss of self-control, requiring the defendant to thrash around in anger; Ahluwalia’s acts on the other hand were thought to show a well thought-out plan.
The objective requirement
The Coroners and Justice Act 2009 stipulates that a defendant is not to be convicted of murder if:
a person of D’s sex and age, with a normal degree of tolerance and self-restraint and in the circumstances of D, might have reacted in the same or in a similar way to D
The circumstances to be taken into account are defined in section 54(3)(c):
all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance and self-restraint
The new defence therefore provides concessions for age. Yet Norrie argues that capacity for self-control is more an aspect of maturity, and age is only a rough way of determining maturity. (A Norrie, ‘The Coroners and Justice Act 2009- partial defences to murder (1) Loss of control’) Thus the law provides a defence for ‘the child with normal development, but not for the child with significant development problems.’ The Law Commission acknowledges that ‘mental age is a complex subject’ and many who kill are emotionally immature, but argues that extending the defence beyond age is not supported “for policy reasons”.
The more limited and objective test means that defendants with cognitive problemswould thus have to try to qualify under the defence of diminished responsibility. This is also a partial defence to murder, reducing the charge to manslaughter, but the defendant must show that they have a recognised medical condition to rely on this defence. Yet surely this is a situation in which the defence of provocationshould still be available? It is manifestly unfair to suggest that a defendant who is emotionally immature should be held to an objective standard and given mandatory life sentence if found guilty.
In addition, the objective approach narrows the scope of the defence, as it requires that where the provocation relies on a characteristic of the defendant, the provocation must be directed at the characteristic. Whilst the old law was subjective and cast the defence too wide, the new law swings too far the other way and does not sufficiently protect defendants with real mitigating factors.
The gender bias
Under the Coroners Justice Act 2009, to be afforded the defence of loss of control, the defendant must show, under s54 of the Act, there is a ‘qualifying trigger.’ There are two qualifying triggers that are available to the defendant, found in s55(3) and (4), which are the‘fear trigger’ and the ‘anger trigger.’ In addition, the government reformed the law so that “the fact that a thing said or done [i.e. the trigger] constitutes sexual infidelity has to be disregarded.”
Although the attempt to remove sexual infidelity as a qualifying trigger is commendable, the operation of thisexclusion is extremely difficult in practice. This was shown in the case of R v Clinton  3 WLR 515 where a man killed his partner after he found that she had slept with another man, laughed at the fact that he was suicidal and threatened to leave him. Lord Chief Justice Judge concluded that a narrow reading of the defence would lead to injustice, and therefore held that, although sexual infidelity could not be considered a qualifying trigger, it could be considered as a ‘circumstance’ that led to the killing. Baker and Zhao argue that this is a way of allowing sexual infidelity in through the ‘back door’ and the ‘impact of sexual infidelity on the defendant’s conduct should not be considered under any circumstances.’
The argument in favour of the decision in Clinton is that an outright exclusion could lead to injustice and instead it is proper to consider it as a relevant circumstance, especially in cases of ‘slow burn’ cases.As Lord Chief Justice Judge puts it:
…in the real world the husband's conduct over the years, and the impact of what he said on the particular occasion when he was killed, should surely be considered as a whole.
In such cases, the whole picture cannot be seen without considering the infidelity factor. Clearly, therefore, the sexual infidelity will only be disregarded where it is stands alone as a qualifying trigger, as it is impracticable to compartmentalise it and exclude it from the jury’s consideration. Situations where there is a sole confession that leads to killing in anger will be excluded from the defence, however these situations are extremely rare. Thus it appears that the outright exclusion of sexual infidelitywill only cover a small number of cases. (A Clough, Sexual infidelity: the exclusion that never was?) But this arguably strikes the right balance between restricting the availability of the defence and ensuring that the court can take into account all relevant circumstances.
Domestic Violence and ‘slow burn’ provocation
As stated above, under the common law defence of provocation it had to be shown that the loss of control was ‘sudden and temporary’ but this requirement has been removed by the 2009 Act.Section 54(2) explicitly states that ‘it does not matter whether or not the loss of control was sudden.’ Hence this section provides a defence to battered women who are able to commit the crime some time after the provocation.
In addition, the new defence introduces a fear trigger, whereby ‘D’s loss of control can be attributable to D’s fear of serious violence from V against D or another named person.’ This defence would apply to defendants such as Ahluwalia who genuinely fear for their life and believe that there is no other option for them.
The argument for abandoning loss of control as a defence
Although the new law provides a defence for victims of domestic violence, there are continuing issues with the objective test and the implicit gender bias. Consequently some commentators take the view that the loss of control defence should be abolished completely. Jeremy Horder, for example, has consistently criticised the loss of control defence. He argues that killing in anger is no more worthy of a defence that killing as a result of greed or envy. (Jeremy Horder Provocation and Responsibility (1992, OUP) Celia Wells supports this argument, stating that the loss of control defence invites defendant’s to defame the deceased. It encourages the defendant to put forward evidence insulting the deceased, for example a husband who has killed his wife may state that she continuously brought men home and insulted him. Since the deceased is clearly unable to provide a defence to these allegations, this is unjust. (Celia Wells, ‘Provocation: The Case for Abolition’)
The gender bias implicit in the operation of the defence also provides a strong basis for an argument that the loss of control defence should be abolished. Horder points out that 52.5% of women who kill their male partners are able to rely on the defence, whilst 30% of men who kill their female partners are able to do the same. At first sight these statistics may appear to be in favour of women. However the vast majority of women who have killed their partners have been subjected to abuse, whilst the number of men who have been subject to violence is minute. In light of this, the figures for women look relatively low whilst the figures for men look surprisingly high.
It is suggested that instead of trying to formulate a moral standpoint that helps determine acceptable murders resulting from angry reaction, the law should clearly make a stand and state that it is never appropriate to kill in anger. The defence of diminished responsibility can be extended to cover defendant’s who are mentally immature, however there should be no pardon for defendant’s who have no mental health disorders. In addition, the fear trigger should be allowed as it provides necessary protection to victims of domestic violence.
The new objective test is unhelpful as it excludes defendant’s who are worthy of the defence, whilst failing to address the issues with the old provocation law. Similarly, the exclusion of sexual infidelity is difficult in practice, and only applies to very few cases. The only reform that has addressed the problems that were initially identified is the fear trigger. It is therefore submitted that the anger trigger should be abolished completely, as in modern society killing in anger is no longer pardoned.
A Clough, Sexual infidelity: the exclusion that never was? (2012) 76 JCL 382
A Norrie, ‘The Coroners and Justice Act 2009- partial defences to murder (1) Loss of control’ (2010) Crim LR 275
Celia Wells, ‘Provocation: The Case for Abolition’ in A Ashworth and B Mitchell Rethinking English Homicide Law
J Herring Criminal Law (5th edn, OUP)
Jeremy Horder Provocation and Responsibility (1992, OUP)
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