The latest Law Commission proposals on provocation The Law Commission issued its Report Law Com. 290 Partial Defences to Murder in 2004. Its remit was restricted to provocation and diminished responsibility and to the question whether or not excessive force should be a defence to murder in the same way that provocation and diminished responsibility are; that is, by reducing murder to manslaughter. The issues of diminished responsibility and excessive self-defence are dealt with elsewhere. In respect of provocation the Home Secretary invited the Commission to review the defence particularly in light of its impact on domestic violence cases and whether it should be merged with diminished responsibility or selfdefence or both. The Commission has for several years wished to examine the law of murder as a whole but its reports are restricted by the terms of reference given to it by the Home Secretary. The Report is a vastly different document in respect of provocation from its precursor Consultation Paper (no 173) of the same name in 2003. That Paper expressed the opinion that provocation existed solely to prevent some killers being adjudged to be murderers and therefore subject to mandatory life imprisonment, and the Commission was strongly of the view that no reformulation of the defence would enhance current law. For these reasons and unlike other Consultation Papers in criminal law the Commission‟s Paper did not contain proposals for reform; instead it asked readers whether provocation should be abolished (whether or not the mandatory sentence for murder was retained). As the Commission states in para 1.8 of its Report, the response to its Paper took it „somewhat by surprise‟. There was a groundswell in favour of retention even if the mandatory sentence were abolished. In light of this groundswell the Commission decided not to abolish the defence but to retain it with (substantial) amendments. It is worth setting out the summary of the recommendations in full. „ … the principles which should govern a reformed partial defence of provocation are: 1. unlawful homicide that would otherwise be murder should be manslaughter if: a. the defendant acted in response to i. gross provocation (meaning words or conduct or a combination of words and conduct which caused the defendant to have a justifiable sense of being seriously wronged); or ii. fear of serious violence towards the defendant or another; or iii. a combination of i and ii [The Commission wrote a. and b. but it meant i and ii]; and b. a person of the defendant‟s age and of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way. 2. In deciding whether a person of ordinary temperament in the circumstances of the defendant might have acted in the same or a similar way, the court should take into account the defendant‟s age and all the circumstances of the defendant other than matters whose only relevance to the defendant‟s conduct is that they bear simply on his or her general capacity for self-control. 3. The partial defence shall not apply where
a. the provocation was incited by the defendant for the purpose of providing an excuse to use violence, or b. the defendant acted in considered desire for revenge. 4. A person should not be treated as having acted in considered desire for revenge if he or she acted in fear of serious violence merely because he or she was also angry towards the deceased for the conduct which engendered that fear.‟ The Commission proposed that any overlap between provocation and duress (by threats) should be resolved thus. 5. „The partial defence should not apply to a defendant who kills or takes part in the killing of another person under duress of threats by a third person.‟ This recommendation was made pending review of the law of murder. The Commission also proposed to change the law relating to the functions of judge and jury. 6. „A judge should not be required to leave the defence to the jury unless there is evidence on which a reasonable jury, properly directed, could conclude that it might apply.‟ The actual drafting of the revised defence was for Parliamentary counsel. In sum the proposals at the same time widen and reduce the width of the current defence, and the final proposal would give the court the power to withdraw he issue from the jury unlike at present, thereby bringing provocation into line with other defences. The Commission expressed dissatisfaction with provocation as it exists at present. It identified the following defects: the difficulty of fitting „slow burn‟ and delayed reaction into the first subjective limb of the defence, for example, a battered woman who kills her abuser while he or she is asleep or drunk; the effect of Smith on the second objective limb; the difficulty in finding a „truly coherent, logical or consistent‟ rationale for the defence (para 3.21). The arguments in favour of abolishing provocation are summarised in para 3.36. „… a person who is sane and who kills another person unlawfully, with the intent required for murder, ought to be guilty of murder however great the provocation may have been. … Not only is it inappropriate that provocation should be singled out among other possible mitigating circumstances as providing a special partial defence, but there are great difficulties in trying to define what may amount to provocation and how serious it has to be in order to amount to a partial defence.‟ The arguments in favour of retaining it are aptly summarised in the following paragraph of the Report. „Where the defendant‟s conduct was precipitated by really serious provocation, it is morally right that this should be reflected in the way society labels and sentences the defendant … The existence of such a partial defence is justifiable in the law of murder, although there is no similar partial defence to non-fatal offences of violence, not only because the sentence for murder is fixed by law but also because of the unique gravity and stigma attached to murder. The real problem with provocation is not the underlying concept, but the way it has developed. It needs to be reshaped.‟ The Commission itself opines (para 3.63): „… the moral blameworthiness of homicide may be significantly lessened when the defendant acts in response to gross provocation in the sense of words or conduct (or a combination) giving the defendant a justified sense of being severely wronged. … We do not suggest that these are the only circumstances which could significantly extenuate moral responsibility for homicide, but we do think that they fall into a distinct category. … An example is the genuine case of mercy killing, but that falls outside the terms of our present review.‟
Accordingly, the Law Commission proposed in line with the consultees‟ responses that the defence should be reformed by statute, and its preferred reformulation has been stated above. One concept in that reformulation requires elucidation. „Gross provocation‟ denotes that the defendant must have a „justifiable sense of being seriously wronged‟ (para 3.68). By „justifiable‟ the Commission means that the test is objective but the jury is to take into account the accused‟s circumstances and characteristics; therefore, the jury could reject traits as not being consonant with society in the twenty-first century. Gross provocation was not to be restricted to threats of or actual physical violence but would extend for example to words such as racial taunting. The Commission was strongly of the view that the proposals should not differentiate between domestic and other killings and that they should be „genderneutral unless it is absolutely necessary to depart from that principle‟ (para 3.78). The objective limb is preserved and reformulated as stated above. To repeat, and this is para 3.109, „The defence should only be available if a person of ordinary temperament, i.e. ordinary tolerance and self-restraint, in the circumstances of the defendant might have reacted in the same or a similar way.‟ Age would be relevant to the capacity for self-control. Overall, this is a significant change from Smith and to a large degree restates the reasoning of the minority of their Lordships. Since the Commission proposes to abolish the subjective test as it presently exists, the stress that the reformulated objective limb will bear will be great. Some comments are necessary. First, because the Commission proposes to give the judge the ordinary power to withdraw issues from the jury in provocation cases, a member of a criminal gang will not be able to rely on the defence to kill members of rival gangs without being in imminent peril because no reasonable jury would so find. Secondly, the need for the objective limb is supported by Lord Hoffmann in Smith, where he said: „A person who flies into a murderous rage when he is crossed, thwarted or disappointed in the vicissitudes of life should not be able to rely upon his anti-social propensity as even a partial excuse for killing.‟ Thirdly, people must exercise reasonable restraint and for this reason the excitable still would not fall within the revised defence. Fourthly, the test is not one whether or not the accused‟s reaction was reasonable but whether a person of ordinary temperament might have been driven to kill. Fifthly, the test is „might‟, not „would‟, just as in current law. Sixthly, while physical age is to be taken into consideration, mental age is not because to include mental age would complicate the law and would undermine the objective test. To quote the Law Commission (para 3.130), „A person who is a psychopath or suffers from retarded development of mind may be eligible for a defence of diminished responsibility. We do not think that factors of that nature should be taken into account in adjusting the objective test for the purposes of provocation.‟ As may be obvious, the defence will not be open to those who act out of „considered revenge‟. This concept is to replace the current subjective limb of provocation, that of the sudden and temporary loss of self-control. Furthermore, the defence would not be available when the accused himself or herself incited the gross provocation in order to have an excuse for using violence. In other words this form of self-induced provocation would not fall within the amended defence. The Law Commission agrees with Lord Hoffmann in Smith that: Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted upon the woman herself or her new lover. In Australia the judge [in Stingel (1990) 171 CLR
312] was able to give effect to this policy by withdrawing the issue from the jury. But section 3 prevents an English judge from doing so. The Commission said (para 3.144): „ … provocation should not be left to the jury in such a case because we do not see how any reasonable jury, properly directed, could conclude there had been gross provocation or that a person of ordinary tolerance and self-restraint might have acted in the same way as the defendant.‟ The adjustment to the functions of judge and jury would permit the judge to do so if the proposals were enacted. Facts which in previous cases gave rise to the defence will no longer do so. The Commission instances Baillie („considered revenge‟), Doughty (the crying baby: no provocative conduct), and Dryden (similarly). The Commission proposed neither to merge provocation and self-defence nor provocation and diminished responsibility. The burden of proof is to remain on the prosecution. In conclusion, the Commission stated in para 3.152: „Nobody pretends that this is an easy area of the law but we believe that this scheme would be workable and it would be a real improvement on the present law.‟
Excessive force in self-defence: the Law Commission’s 2004 Report The Law Commission in its Report no 290, Partial Defences to Murder, 2004, considered whether excessive force should reduce murder to manslaughter in the same way as diminished responsibility and provocation do. Currently self-defence operates as an „all-or-nothing‟ defence; this is, either the accused succeeds in his defence, in which case he is acquitted, or he fails, in which case he is convicted of murder. Excessive force when some force would be reasonable in the context of the Report means that the accused is convicted of murder. This conclusion is to some degree mitigated by trial judges directing juries that they are to take all circumstances into account, including for example the size of the accused and victim, that they are not to use hindsight, and that where there is evidence of provocation, they should consider whether or not that defence succeeds with the effect that a verdict of voluntary manslaughter is reached. The Commission rejected the provision of a defence of excessive force. In respect of householders who kill intruders, it considered that they could have a defence of provocation under the revised formula if these conditions were satisfied: if a person of ordinary tolerance and self-restraint acting in fear of serious physical violence to himself or another might have killed and the accused does kill, he will have a defence. In respect of battered adults or children who kill, fearing further abuse and not perceiving any route of escape and being aware of the mismatch in physique so that „to respond directly and proportionately to an attack or an imminent attack will be futile and dangerous‟ (para. 4.18), should they have a defence of self-defence if they use excessive force when for example their abuser is drunk or asleep? Again the Law Commission thought that such facts could fall within the revised definition of self-defence: was the accused genuinely in fear of serious violence and might a person of ordinary tolerance and self-restraint have acted in the same or a similar way? In para 4.29 the Commission said that the revised definition of provocation will work
„through the acknowledgement that even a person of ordinary tolerance and selfrestraint might, on occasion, respond in fear by using an excessive amount of force.‟ In conclusion the Law Commission was strongly of the view that there should not be a defence of excessive self-defence because in situations where that defence might arise, householders and the abused, the reformulated defence of provocation would be available. Reform of diminished responsibility: the Law Commission’s proposals As well as reviewing provocation and excessive force in self-defence the Law Commission in its Report no. 290, Partial Defences to Murder, 2004, considered whether the current boundaries of the defence of diminished responsibility should be amended. The Commission agreed with the consultees to their Consultation Paper of the same name, no. 173, 2003, that the defence should continue to exist as long as the mandatory sentence for murder remained. If the definition of murder was to be changed and the mandatory sentence abolished, then how diminished responsibility would be formulated would be for discussion. As things presently are, there was a division between those consultees who wished to keep the current defence and those who wished it to be abolished. Those who wished to retain it, and did so even of the mandatory sentence were abolished, thought that the defence was a matter of fair labelling: people with diminished responsibility should not be convicted of murder. Moreover, an unreformed insanity plea was no help to those who currently have the defence of diminished responsibility because of the narrowness of the M’Naghten rules; jurors should not be obliged to choose acquittal (perversely) when their sole other choice was murder; culpability was an issue for the jury, not one for the judge at the sentencing stage; diminished responsibility is sometimes the sole defence open to battered women who kill on current law; and „the defence may enable a merciful but just disposition of certain types of cases where all parties consider it meets the justice of the case‟ (para 5.22). Even those who supported the retention of the plea argued that the defence had defects, in particular that it pathologised or stigmatised some of those who fell within its terms, especially battered women who kill. Nevertheless, those groups did not attempt to reformulate the defence, at least in part because they did not want a medically approved definition, which would have led to the stigma of being labelled as „suffering‟ from diminished responsibility. There were those who argued in favour of abolition and their arguments may be summarised thus. First, it was illogical to treat diminished responsibility as a defence; since responsibility is diminished, the defence should not be a defence but a mitigating factor. Secondly, the definition is irredeemably unreformable in its use of concepts. Thirdly, the application of the defence is highly contentious, covering for instance mercy killings which do not fit the definition in s2 of the Homicide Act 1957. In light of the differences of opinion about the desirability of retaining the defence and if it were retained, its reformulation, the Law Commission did not propose any changes to the defence, including the burden of proof, in advance of the comprehensive review of the law of murder. Nevertheless and with some trepidation the Commission did advance a formula which it at present preferred if diminished responsibility was to remain a defence to murder. That redefinition was stated in para. 5.97. It is worth stating in full. „A person, who would otherwise be guilty of murder, is not guilty of murder, but of manslaughter if, at the time of the act or omission causing death, (1) that person‟s capacity to:
(a) understand events; or (b) judge whether his actions were right or wrong; or (c) control himself; was substantially impaired by an abnormality of mind arising from an underlying condition and (2) the abnormality was a significant cause of the defendant‟s conduct in carrying out or taking part in the killing. “Underlying condition” means a pre-existing mental or psychological condition other than of a transitory kind.‟ The Law Commission was strongly of the opinion that contrary to the view of some academics provocation and diminished responsibility should not be amalgamated. Their decision was succinctly and clearly expressed thus: „ … the two partial defences rest on entirely different moral bases and the fact that they may be run together on occasions is not a reason for merging them. The jury can understand the difference and apply them separately.‟