Does the Defence of Provocation Go Far Enough?

ProvocationIf you have never studied criminal law, you may well be under the impression that provocation could be used as a defence to mitigate a number of different charges. For example, if someone is charged with an assault, surely they may have been provoked into committing that offence? However, with the defence of provocation, this could not be further from the truth. This is because this specific defence is only available for a person who has been charged with murder; it is not possible to rely on this defence in the case of manslaughter.

As it has recently been announced that a possible review of assault laws may be in the cards (we will investigate this more thoroughly at a later date), the defence of provocation is rearing its head again. There are a number of people who work in criminal law who believe that this defence should not be restricted to the most severe charge of them all. After all, it really does go without saying that if an individual can be provoked into taking another person’s life, surely then he or she could be provoked into an assault on another person.

To date, however, the law has disagreed with this common-sense view. It has stubbornly refused to extend this defence beyond its current limitation. When you investigate the defence in more detail, you soon ascertain that there is nothing in either part of the test used that could prevent it from being utilised in other areas of criminal law. To make this more clear, it is prudent to evaluate this two-part test:

The defence of provocation falls under a subjective and then objective test, and is covered under s.3 of the Homicide Act 1957. The subjective test must be satisfied first of all, in order to show that the defendant was provoked by things said or done (or both) to lose his or her self-control. This test is not concerned with whether or not the defendant ought to have lost self-control, merely with whether or not he or she actually had done so. It is a just a question of fact.

The objective test relies on that old legal chestnut — reasonability. The test here is would the provocation make a reasonable man or woman lose his or her self-control and do what the defendant did? Case law is also very important here, especially from R. v. Duffy [1949] 1 All ER 932, as it was held that the loss of self-control must be sudden and temporary in order to satisfy the defence.

In effect, the law is accepting that a reasonable person may well be driven to cause the murder of another individual and if the defence of provocation can be proven the offence of murder would then be downgraded to the lesser charge of voluntary manslaughter, which provides the judge with far more sentencing discretion.

So… as you can see, the law is accepting that individuals can be provoked into the most heinous of crimes, so why does it not accept that people can be provoked into lashing out and injuring somebody in a non-fatal manner? 

As this defence currently stands, it is not unheard of for a criminal defence lawyer to actually feel relieved when their client has been charged with the most serious of homicide offences: the defence of provocation is often a strong argument. Take a homeowner whose family is put in great danger through the actions of an armed robber: try telling them that they were not provoked into inflicting any level of bodily harm in an effort to protect what they held most dear.