Provocation was previously controlled under S2 of the homicide act 1957, the act stated where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. The new defence S54-56 Coroners and Justice Act 2009 replaced defence of Provocation S3 Homicide Act 1957; it came into force October 2010.
There are three stages to proving loss of self control. Stage one is the defendant’s actions (in doing or being a party to a killing) must be down to the result of a loss of self control. There is no need for loss of self control to be ‘sudden’ however in court a jury can still take into account the delay between the incident and the killing, this is now available to a defendant if they acted in a ‘considered desire for revenge.’ A case related to this is Duffy 1949, the defendant killed her husband after mistreatment, she removed their child from the home and when her husband was asleep she killed him with a hatchet and hammer, she was found to be guilty. Previously any cooling off period might have counted against the defendant. This was problematic for women who were in violent relationships; they were unable to plead the defence due to the perceived element of pre-meditation. In Ahluwalia a woman had been in an arranged marriage, her husband was very violent towards her over a period of 10 years. She poured white spirit over her husband and set it alight causing his death. The courts accepted the possibility of a slow burn reaction; however it is very difficult to prove. Court of appeal concluded diminished responsibility.
Stage two is that loss of control must have a qualifying trigger; s53 (3) says the individual must have fear of serious violence to either the defendant or another identified person. There are cases where a defendant has lost self-control because of his or hers fear of serious violence from the victim. This is a subjective test, and the defendant needs to show that they lost control because of the genuine fear, whether or not the fear was in fact reasonable. The fear of serious violence needs to be in respect of violence against the defendant or against another identified person, for example the fear of serious violence could be in respect of a child. Fear only needs to be genuine and does not have to be reasonable. The defendant must not have provoked the victim in anyway; this alters the previous law on provocation. In addition things said or done that were of an extremely grave character causing the defendant to experience a justifiable sense of feeling seriously wronged .This overrules previous case of law were anything said or done could qualify. In Doughty the defendant killed his 17 day old son, raising the defence that the baby’s persistent crying and recklessness constituted provocation. The trial judge did not allow the jury to consider the defence of provocation stating that provocation cannot be founded on the perfectly natural episodes of a baby’s crying, the defendant appealed. It was held the baby’s crying could amount to a provocative act with the meaning of section 3 of the Homicide Act 1957. The murder conviction was substituted for manslaughter.
In addition there must be a justifiable sense of feeling seriously wronged. Section 53 again is not available if the defendant has incited the victim. This is a objective test. Sexual infidelity is not a qualifying trigger; this is another change from the previous law. In Davies, the defendant killed his wife after seeing her lover walk towards her place of work. It was held that the act of the lover walking to her work place could amount to a provocative act and the issue of provocation should have been put before the jury. The provocative act need not be deliberately aimed at provoking the victim, nor must the provocation come from the...
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