Provocation

1. Provocation • Defined in S3 of the Homicide Act 1957 as: • “Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked to lose his self control…..”

2. Provocation • There are three elements that must be established: • There must be some provocation • D must have lost their self control suddenly and temporarily on account of the provocation • The reasonable person must have done as D did

3. Some provocation • D can be provoked by words or conduct • The provocation may arise from the victim or any other person; • R v Doughty • the crying of a 17-day old baby was held to be capable of being provocation. • D may cause the provocation: • R v Johnson • D started an argument with V at a night-club and eventually stabbed him during the evening. D claimed that he was provoked by the fear of being “glassed” by V. Court stated he should be allowed to plead provocation despite the fact that he had been the one who had started the trouble.

4. Loss of self control • D must have a sudden and temporary loss of control • There is no rule that D must act immediately: • R v Baillie: • D went to the house of a drug dealer armed with a gun and a razor, after serious threats were made by the dealer to D’s three sons who were addicts. D, who was strongly opposed to the taking of drugs, was in a rage and inflicted serious injuries on V, who died, with the razor. Whilst D must lose self-control, he need not kill immediately, so long as there is sufficient evidence that he remained out of control for the entire period. • However, a time delay may be interpreted as evidence of intention: • R v Thornton (no 1): • V had a history of assaulting his wife. One evening, after a weekend of rows, D found V asleep and drunk on the sofa and stabbed him to death. Provocation was unsuccessful because it was felt that her actions of obtaining a knife and sharpening it did not indicate a loss of self-control

5. Who is the reasonable person? • Would a reasonable person have done what D did in the circumstances? • Test for the jury (question of fact) • Jury must think of the reasonable person as being in the same situation, and taking the entire factual situation into account.

6. What’s the entire factual situation? • DPP v Camplin (1979) • D (a 15-year old boy) was sexually attacked by a 50-year old man, who then laughed at him. This caused D to lose self-control and he hit V over the head with a heavy cooking pan, splitting V’s skull. V died. D pleaded provocation.Only “permanent” characteristics of D such as age are relevant. • R v Morehall (1995) • D was taunted about his addiction to glue sniffing several times by V. He was involved in a fight with V which was broken up. D then followed V and stabbed him to death. Provocation was successful. Characteristics which were directly related to the provocation eg addiction to gluesniffing were also relevant

7. What’s the entire factual situation? • R v Humphreys • D was raised by alcoholic parents and developed psychiatric problems as a result. At 16, she became a prostitute and moved in with V who was abusive towards her. One evening during which D feared V would rape her, D stabbed V to death. The court allowed juries to consider psychiatric conditions too and to take into account the cumulative history leading to the killing. • R v Smith (2000) • D was visited by V, an old friend. D & V were both alcoholics and got into an argument. D stabbed V to death with a kitchen knife. The court held when applying this test, the jury may assume any relevant characteristics of D as they see fit. • R v Weller (2004) • V told D that she wanted to break up. V spent the night with her friend, and went back to D’s flat next day to collect her stuff. .D&V had a row about V seeing other men D grabbed her by the throat & strangled her. CA said that obsessive jealousy can be taken into account by a jury which confirmed the test in R v Smith.