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Justin Santiago, BAppSc (Hons), MBA, LLB (Hons) comes from a journalism, market research, intellectual property and strategic communications consulting background. Now based in Melbourne he spends his time advising businesses on how to communicate to their customers as well as writing on various subjects of interest in this blog.

Friday, January 30, 2009


How have the courts dealt with the issue of whether characteristics other than age and sex, attributable to the reasonable man, for the purpose of Section 3 of the Homicide Act 1957 should be relevant not only to the gravity of the provocation to him but also to the standard of self-control to be expected? - Justin Santiago

Section 3 of the Homicide Act 1957 deals with provocation, a defined mitigating circumstance which reduce the level of mens rea and reduce a charge of murder to voluntary manslaughter which carries a lesser sentence than murder. It would have to be proved whether the defendant was sufficiently provoked to temporarily lose his or her self control.

The relevance of characteristics other than age and sex to the gravity of the provocation as well as to the standard of self control to be expected was expounded in R v Smith (Morgan) which is said to have opened the floodgates to the defence too widely and in doing so had diluted the objective test in provocation as well as incorporating elements of diminished responsibility which is another defence altogether. This decision has not been followed by subsequent decisions of courts even of lower standing.

The bad treatment of provocation by the courts can be blamed solely on Section 3 of the Homicide Act 1957 which tries to use both an objective test and a subjective test in determining whether the defendant could avail himself of this defence which is one of the defined mitigating circumstances which reduces the crime of murder to voluntary manslaughter.

There are two elements to this defence which are identified as :-

a. whether the defendant was provoked to lost his self control (subjective test)
b. was the provocation enough to make a reasonable man do as he did (objective test)

The first element sets up the defence, the second sets the limit. It is the second element which determines the level of self control required which has vexed and often strained the learned judges and led to confusion. It is very difficult to equate the level of self control of the reasonable man i.e. someone with ordinary powers of self control with someone who is provoke as he has a sudden and temporary loss of self-control rendering him for the moment not master of his mind : R v Duffy.

The courts have tried to justify this bad law by coming out with their own reasoning and in the process providing all sorts of characteristics to the reasonable man to justify their judgements.

DPP v Camplin thought it was important that the D be judged against the reasonable man with the same age and sex. This was probably due to reasons no more than the fact that the defendant was a 15 year old boy. It was later held in R v Morhall that the characteristic of the D that affecting the gravity of the provocation is material. In the words of Lord Goff, “if an old lag, now trying to go straight, was taunted with being a jailbird, it would not make much sense to tell the jury to consider the effect of such provocation on a man of good character. This widened the characteristics of the reasonable man to include those characteristics that were directly related to the provocation. In Luc Thiet Thuan v R, this point was emphasized and that if the D’s characteristics was not relevant if it did not form the subject of the taunts.

The characteristics of the reasonable man were widened in R v Ahluwahlia where the courts said in obiter that battered woman syndrome which was a mental abnormality might be a relevant characteristic for the purpose of the objective test in provocation. This extension of the characteristics of the reasonable man to include mental abnormalities is clearly wrong since this unacceptably extends the application of the defence of diminished responsibility circumstances what should fall exclusively within the defence of provocation.

Section 2 of the Homicide Act specifically creates the defence of diminished responsibility, which provide an excuse for those whose mental responsibility is impaired as a result of an abnormality of mind. According to Mackay and Mitchell in their article "Provoking Diminished Responsibility : Two Pleas Merging into One" by allowing abnormal psychiatric conditions as such to be attributed to the reasonable man, this indirectly incorporates an element of dimininished responsibility into the law of provocation. This is clearly confusing since the burden of proof differs for both these defences. For provocation the burden is on the prosecution to disprove whereas for diminished responsibility the burden is on the defendant to prove - (S2(6) Homicide Act 1957). Thus by raising the defence of provocation and introducing medical evidence of an abnormal psychiatric condition impairing the defendant’s powers of self control, the defendant could evade the burden of proof imposed by S2(6).

The House of Lords case of went even further in R v Smith (Morgan) by having the reasonable man take into account all characteristics of the accused (excluding male possessiveness and jealousy which were deemed unacceptable reasons for loss of self control) when deciding on whether the provocation would have made the D do what he did. Thus ALL characteristics would be relevant to the gravity of the provocation AND D’s ability to exercise self control. This reasoning significantly enlarged the scope of the defence of provocation and broadened the earlier tests to such a degree that it diluted the objective test in S3.

In the Privy Council case of A-G for Jersey v Holley it was held that the defendant’s alcoholism was not a matter to be taken into account in determining whether a person with ordinary powers of self control would have done what the defendant did. This left the doors made wide open by Smith (Morgan) slightly ajar. But it could also be interpreted to mean the courts’ reluctance in allowing intoxication as a defence not only in murder but in other crimes as well.

In the Court of Appeal case of Faqir Mohammed the narrow and strict test of a man with ordinary powers of self control were applied to the defendant who had a violent temperament, had strong religious beliefs and had depression. All these factors were not taken into account which wrought further damage on the wider test of excusability espoused by Smith (Morgan). This was surprising considering the doctrine of stare decisis was not followed in this case. Later cases R v James did not consider psychiatric evidence demonstrating that the appelant’s ability to control his behaviour would be impaired and R v Karimi did not take the appelant’s ability to control his behaviour was impaired by post traumatic stress disorder followed Holley rather than Smith (Morgan) and is indicative that this case may be ruled by a later House of Lords case.

In light of these conflicting decisions and the fact that there is mandatory sentencing for murder, there is urgent need of reform so that the law is clear on the standard of self control to be expected. Some like Mackay and Mithcell have called for the defendant to be judged with due regard to all the circumstances including any disability physical or mental from which he suffered removing the difficulties associated with the objective test. Others have called for a scrapping of the defence in light of reforms to mandatory sentencing for murder. The Law Commission’s most recent proposals have called for the removal of the defence from the jury if no reasonable jury properly directed could conclude that the conduct was provocative.

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