The Doctrine Of Provocation

The Cambridge Law Journal

Volumn 35, Issue 2, 1976, Pages 292-320

  Ashworth, A J ^a  

^a UNIVERSITY OF MANCHESTER   (United Kingdom)

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EID: 34147196949     PISSN: 00081973     EISSN: 14692139     Source Type: Journal    
DOI: 10.1017/S0008197300012046     Document Type: Article

References (123)

1. Cf. 3 Co.Inst. 47, although Coke failed clearly to connect provocation with the offence of manslaughter. For an examination of the law before the seventeenth century, see J. M. Kaye, “The Early History of Murder and Manslaughter” (1967) 83 L.Q.R. 365, 569. 594-601.
2. Hale, 1 P.C. 455.
3. (1707) Kel. 119.
4. Lord Holt lists the categories, and discusses the authorities for them, at Kel. 130-137. For present purposes it is unnecessary to analyse the previous decisions, Per Lord Holt, at Kel. 135.
5. Death caused as a result of a sudden quarrel, “no undue advantage being sought or taken on either side” (Foster, C.L. 295), was at this time an independent ground for reducing murder to manslaughter: cf. Hawkins, P.C, ch. 31, s. 28; East, 1 P.C. 241.
6. Cf. the Statute of Stabbing 1604 (1 Jac. 1, c. 8), the history of which reflects this distinction: Radzinowicz, History of English Criminal Law, Vol. I, pp. 695-698.
7. Hopkin Huggett (1666) Kel. 59, followed in Tooley (1709) 2 Ld.Raym. 1296.
8. Tooley (above, n. 8), where Lord Holt replied:” surely ignoranlia facto [sic] will excuse, but never condemn a man. Indeed he acts at bis peril in such a case, but he must not lose his life for his ignorance, when he happens to be right.” Cf. also Ferrers (1634) Cro.Car. 371.
9. Foster, C.L. 315; cf. Russell on Crime, 12th ed. (1964), pp. 450-452.
10. Stephen, 2 H.C.L. 422-423. 12 Kel. 137. This” hardness” would be irrelevant to most cases, since killings in adultery cases are usually for revenge rather than for prevention. Lord Holt's point was probably that it is justifiable for a citizen to kill to prevent a robbery whereas it is not justifiable for one spouse to kill to prevent adultery by the other spouse.
11. Code's Case (1672) 1 Vent. 216; Clement v. Blunt (1625) 2 Rolle 460; Keite (below, n. 24).
12. Below, p. 307.
13. (1671) 1 Vent. 159, sub nom. Manning. T. Raym. 212; see further on precedent malice Watts v. Brains (1600) Cro.Eliz. 779, Mason (1756) Fost. 132, and the modern application of the principle to evidence of premeditation in Parker v. R. [1964] A.C. 1369.
14. Cf. the observations of the Criminal Law Commissioners (Fourth Report, 1839 Parl.Pap. [168] xix-235), who in their notes to Article 43 of their Digest argued that “words or gestures may often be infinitely more irritating and provoking that a personal injury of a trivial nature,” but who also stated that if trivial provocations were allowed as sufficient, this would” weaken a salutary check, and withhold a signal mark of disapprobation stamped by the authority of the law.”
15. Mawgridge (1707) Kel. 119, where the lawfulness arose from self-defence, and the authorities cited above, n. 13. is Hale, 1 P.C. 457; East, 1 P.C. 239; cf. further Ashworth,”Self-Induced Provocation and the Homicide Act” [1973] Crim.L.R. 483.
16. (1869) 11 Cox C.C. 336, where Keating J. clearly articulated the objective standard of the sufficiency of provocation.
17. Cf. especially Kel. 132.
18. Unreported, but discussed by Foster (C.L. 292) and by East (1 P.C. 234).
19. E.g., Wiggs (1784) 168 E.R. 291n.; Hazel (1785) 1 Leach 368; Fray (1785) discussed by East, 1 P.C. 236.
20. East, 1 P.C. 234.
21. In bis article on “Provocation and the Reasonable Man” [1954] Crim.L.R. 740, Professor Glanville Williams argues that there was formerly a rejection of the proportion rule. He cites Ayes (1810) R. & R. 166, a decision which certainly ignores any requirement of proportionality, although the reasons why the assembled judges altered the verdict from murder to manslaughter were not published. In favour of proportionality is Keite (1697) 1 Ld.Raym. 139, and the nineteenth-century authorities discussed in the text.
22. (1837) 7 C. & P. 817.
23. (1837) 8 C. & P. 115.
24. Criminal Law Commissioners, op. tit., p. xxv; cf. below, p. 302.
25. Discussed below, p. 302.
26. Cf. now the Criminal Law Revision Committee's” Working Paper on Offences against the Person” (dated August 1976), which states the existing law and proposes certain changes. It will be referred to below simply as the Working Paper.
27. Smith & Hogan, Criminal Law, 3rd ed. (1973), p. 236:” Under the Act, the first hurdle for D is to satisfy the judge that there is evidence… that he lost his self-control.”
28. Per Talbot J. in Brown [1972] 2 Q.B. 229, 234; cf. also English,”What did Section Three do to the Law of Provocation?” [1970] Crim.L.R. 249, and Ashworth [1973] Crim.L.R. at pp. 487-491.
29. Lynch (1832) 5 C. & P. 324; Sherwood (1844) 1 C. & K. 556; Smith (1866) 4 F. & F. 1066.
30. (1869) 11 Cox C.C. 336, 339.
31. (1913) 109 L.T. 745; the argument, said Darling J.,”brings one to the point where, if a man with red hair is killed by a man who is mentally deficient, the judge must leave it to the jury to say whether such a fact is sufficient provocation to reduce the crime to manslaughter.”
32. [1914] 3 K.B. 1116. McCarthy [1954] 2 Q.B. 105; cf. also Thomas (above, n. 25).
33. This was certainly the intention of the Royal Commission on Capital Punishment, whose recommendations formed the basis of section 3: see Cmd. 8932 especially paras. 126-137 and para. 151. Cf. further English [1970] Crim.L.R. 250-255. a? Smith & Hogan, op. cit., 244. ss Edwards,” Provocation and the Reasonable Man: Another View” [1954] Crim.L.R. 898, 900.
34. Cf. Coleridge J. in Kirkham (1837) 8 C. & P. 115, 119: “the l a w… considers man to be a rational being, and requires that he should exercise a reasonable control over his passions.” Cf. Gordon, Criminal Law (1967), who would ask whether “the accused made reasonable efforts to control himself” (p. 729).
35. Cr.App.R. at p. 141.
36. The distinction contended for in the text is accepted in New Zealand: cf. Crimes Act 1961, s. 169, as interpreted in Macgregor [1962] N.Z.L.R. 1069. See also note 44a, above.
37. Lord Simonds seemed to accept that the jury should place the reasonable man” in the circumstances in which the accused was placed,” whatever that might mean: 38 Cr.App.R. at p. 139.
38. Cf. the Royal Commission's remarks, above, n. 44.
39. so Smith & Hogan, op. dt., p. 241; similarly Samuels,”Excusable Loss of Self- Control in Homicide” (1971) 34 M.L.R. 163, arguing that” the inscrutability of the jury verdict would remove the matter from the ambit of the law.”
40. Cf. the analysis above, pp. 296-297.
41. e.g. in McCarthy [1954] 2 Q.B. 105; McPherson (1957) 41 Cr.App.R. 213; Walker (1969] 1 AU E.R. 767; Edwards V. R. [1973] 1 All E.R. 152.
42. Op. cit., p. xxvi.
43. Per Viscount Simon in Mancini v. D.P.P. [1942] A.C 1.
44. Cf. English [1970] Crim.L.R. at pp. 258-262.
45. Phillips V. R. [1969] 2 A.C. 130, per Lord Diplock at p. 137.
46. [1972] 2 Q.B. 229.
47. Cf. White, “A Note on Provocation” [1970] Crim.L.R. 446, for a discussion of the meaning of the italicised words.
48. [1972] 2 Q.B. at p. 234; Talbot J. went on to quote Lord Devlin's words in Lee Chun-Chuen v. R. [1963] A.C. 220, 231:” Provocation in law consists mainly of three elements-the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation.”
49. Smith & Hogan, op. cit., pp. 242-244; Brett, loc. cit., below, n. 72.
50. David Hume, A Treatise on Human Nature, ed. Selby-Bigge (1888), p. 415.
51. [1969] 2 A.C. 130, 137.
52. C. N. Cofer & M. H. Appley, Motivation: Theory and Research (New York 1964), pp. 417-423, discussing aggression, repression, regression and fixation as forms of response to frustration. Much psychological theory seeks to explain aggressive behaviour by reference to frustration, but the particular point in the text is not dependent upon the frustration-aggression hypothesis.
53. M. D. Vernon, Human Motivation (Cambridge 1969), p. 62; cf. similarly Cofer & Appley, op. cit., p. 418.
54. Cf. generally Anthony, An Experiment in Personality Assessment of Young Men Remanded in Custody (H.M.S.O., 1972), pp. 6-14, and Eysenck, Crime and Personality (Paladin, 1970), p. 107.
55. Storr, Human Aggression (Pelican, 1968), p. 28; cf. similarly Grossman, Physiological Psychology (New York 1967), p. 498.
56. Professor Vernon (op. cit., p. 65) relates this to a distinction between the “middle classes” and the” working class,” arguing that the former attempt to suppress aggression whereas the latter typically accept it.
57. Anthony, op. cit., pp. 6-14.
58. Pastore,” The Role of Arbitrariness in the Frustration-Aggression Hypothesis”
59. (1952) 47 Journal of Abnormal Social Psychology 728-731, reporting an experiment
60. the results of which suggest that any theory of human aggression must
61. refer to the important difference between arbitrary and non-arbitrary stimuli.
62. A majority of the Criminal Law Revision Committee tentatively propose that the new test of “reasonable excuse” (ch. note 44a) should apply only to loss of self-control, and not to the actual form of retaliation: Working Paper, para. 56. On this view, the retaliation would merely be evidence of loss of self-control.
63. The proper inference from multiple wounding is however unclear. In some cases courts have adopted the view that the repeated infliction of wounds shows a degree of deliberation, in others courts have accepted that multiple wounding is consistent with “going berserk” or a total loss of control. The latter inference may well be more frequently correct.
64. Cross & Jones, Introduction to Criminal Law, 7th ed. (1972), p. 151.
65. Brett, “The Physiology of Provocation” [1970] Crim.L.R. 634.
66. Whereas Storr (op. cit., p. 29) states that “subsequent research has done nothing to invalidate his [Cannon's] original thesis,” other writers discuss” serious objections which have been raised against some of its basic assumptions”: Grossman, op. cit., pp. 515-526, and Vemon, op. cit., pp. 78-79.
67. N. R. F. Maier,”Frustration Theory: Restatement and Extension” (1956) 63 Psychological Review, 370, 382.
68. Cf. the discussion of loss of self-control below, pp. 314-317.
69. Cf. above, n. 69.
70. For example, someone who reacts suddenly to provocation may retain sufficient control to pass over a glinting knife and vent his or her anger with a wooden spoon or with pottery: cf. White [1970] Crim.L.R. at p. 447.
71. Cf. above, p. 294, and the case of Gauthier (1943) 29 Cr.App.R. 113, where the accused went to meet his wife's paramour, taking a gun and leaving it near the meeting place. Even if he did lose his self-control and even if the provocation was grave, should not his forearming operate to exclude the defence?
72. This is a strong impression, derived from reading many reported and unreported cases but unsubstantiated by systematic research. Cf. n. 80 below.
73. See further Ashworth,” Sentencing in Provocation Cases” [1975] Crim.L.R. 553, and sources cited thereat.
74. Cf. generally, for this view, the summing-up of Devlin J. in Duffy [1949] 1 All E.R. 932, described by Lord Goddard C J. as a” classic direction” on provocation.
75. Cf. the developments in criminology which have led investigators to pay greater attention to the role of the victim in violent crimes. Hans von Hentig, The Criminal and his Victim (New Haven 1948), concluded that “the victim is one of the causative elements, and we would do well to pay more attention to him in judging the criminal and his action” (p. 436). M. E. Wolfgang, Patterns in Criminal Homicide (New York 1958), included in his study a category of” victim-precipitated homicides,” although his definition was confined to cases in which the victim was the first to use force against his subsequent slayer. Cf. now Drapkin & Viano (eds.), Victimology (Lexington 1974).
76. Nicomachean Ethics, v, 8 (tr. Sir W. D. Ross).
77. ” The offence does not originate in the will of the delinquent. The primary cause is the act of another, the will of another…”: Bentham, Theory of Legislation, ed. Ogden (1931), p. 262.
78. Cf. above, pp. 294-297, for a discussion of the form of causal reasoning involved in provocation cases, cf. Hart & HonorS, Causation in the Law (Oxford 1959), pp. 49-55.
79. J. L. Austin, “A Plea for Excuses” (1956) 57 Proceedings of the Aristotelian Society, at p. 3.
80. E.g., in Birchall (1913) 9 Cr.App.R. 91, Nuttall [1956] Crim.L.R. 125, and Fantle [1959] Crim.L.R. 585. Cf. the argument of T. H. Green, Lectures on the Principles of Political Obligation (1885), that failure to mitigate punishment in cases of strong provocation might tend to diminish respect for the right whose violation provoked the slaying. Thus, if the punishment of a man who was provoked to kill an adulterer in a quarrel was not reduced, this might tend” to weaken the general sense of the wrong-the breach of family right-involved in the act which, in the case supposed, provokes the homicide,” (op cit., p 195).
81. R.C.C.P., Minutes of Evidence, Q. 5367; the argument was apparently accepted by the Commission: Cmd. 8932, para. 143.
82. Cf. Turner in Russell on Crime, 12th ed. (1964), p. 546, and Kenny's Outlines of Criminal Law, 19th ed. (1966), p. 178; Williams,”Provocation and the Reasonable Man” [1954] Crim.L.R. 740; Smith & Hogan, op. cit., pn 243-244.
83. The “good-tempered man “surely means the same as” the reasonable man.” If an anthropomorphic standard is to be used (cf. above p. 299), then the” normally good-tempered man” would be more accurate.
84. Dr. Turner in Russell on Crime, 12th ed. (1964), p. 546.
85. Smith & Hogan, op. cit., p. 244.
86. In 1839 the Criminal Law Commission stated that abolition of the rule that words could not amount to provocation would “weaken a salutary check “(cj. above, n. 16); an American judge, Christiancy J., argued in Maher v. People (1862) 10 Mich. 212 that “by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men” (p. 220); and Fitzgerald, Criminal Law and Punishment (Oxford, 1962), argues that the abolition of the objective standard” would be to set a premium on hot temper” (p. 128).
87. Cf. Olivecrona, Law as Fact, 1st ed. (1939), pp. 150-168.
88. The term” congenitally incapable” is used to distinguish the more permanent incapacities from those which are temporary (e.g., induced by intoxication)
89. Russell on Crime, 12th ed. (1964), p. 535.
90. Wechsler & Michael,” A Rationale of the Law of Homicide” (1937) 37 Columbia L.R. 701, 1251, 1281.
91. S. 2 refers to” such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility.”
92. Dr. W. L. Neustatter, “Psychiatric Aspects of Diminished Responsibility in Murder” (1960) 28 Medico-Legal Journal 92, 94.
93. Per Lord Cooper in H.M. Advocate v. Braithwaite, 1945 S.C.(J.) 55.
94. Cf. Walker, Crime and Insanity in England, i, p. 151.
95. [1960] 2 Q.B. 396.
96. In the Working Paper, para. 53, the Criminal Law Revision Committee suggest that in practice a combined verdict may be returned even though the provocation was not sufficient to provoke a reasonable man. The Committee fail to explore the relation of their proposed new test of provocation to defences based on mental disorder, yet the issue of classification is important. Cf. note 44a, above, on “mental disability.”
97. e.g., Jennion [1962] 1 W.L.R. 317. s e.g., Eeles, The Times, October 21 and 22, 1972.
98. Cf. the authorities discussed and criticised by Ashworth [1975] Crim.L.R. at 556-559.
99. Davies [1975] Q.B. 691. The Criminal Law Revision Committee propose that juries should” take previous provocations into account where the present insult brought the accused to flashpoint”: Working Paper, para. 57.
100. Cf. above, p. 297.
101. Howard, Australian Criminal Law, 2nd ed. (1970), p. 323.
102. Ibid.
103. Cf. Ashworth,”Reason, Logic and Criminal Liability” (1975) 91 L.Q.R. 102.
104. Cf. Sparks,”Diminished Responsibility in Theory and Practice” (1964) 27 M.L.R. 9, 18; Hart, Punishment and Responsibility (Oxford, 1968), at p. 153.
105. These types of case are discussed in greater detail by Gordon, op. cit., p. 719 (dealing with the Scots case of H.M. Advocate v. Gilmour, 1938 J.C. 1, where it was laid down that a provoked killing might be reduced to the crime of assault if the accused” acted in the first transport of his passion without appreciating to the full extent what he was doing”), and by Ashworth, 91 L.Q.R. at pp. 128-129.
106. Principles of Morals and Legislation, ch. XI, para. 42.
107. Op. cit., 37 ColX.R. at pp. 1283-1284.
108. In his “classic direction” in Duffy [1949] 1 All E.R. 932, Devlin J. referred to provocation which” actually causes in the accused a sudden and temporary loss of self-control.” See also the Working Paper, quoted below, note 20.
109. Cf. above, n. 6.
110. Duffy [1949] 1 All E.R. 932; Brown [1972] 2 Q.B. 229, 234; but cf. now Davies, above n. 7. “Fisher (1837) 8 C. & P. 182, where Park J. held that” whether the blood had time to cool or not, is rather a question of l a w”; Albis (1913) 9 Cr.App.R. 158.
111. Hall (1928) 21 Cr.App.R. 48; Lee Chun-Chuen [1963] A.C. 220; but cf. Mancini v. DJ’.P. [1942] A.C. 1, 9. The recent Working Paper, however, appears to favour an objective test, stating in para. 57 that the defence” should apply only to loss of self-control arising suddenly upon the provoking event, and not to cases where the accused's reaction is greatly delayed.”
112. The consequence of this would be that persons with unusually broody temperaments, like Albis (cf. above, n. 19), might be able to succeed on the defence of provocation even if they killed a day after receiving the provocation. Cf. Uddin (above, n. 41), where the defence did succeed in such circumstances.
113. Criminal Law Commissioners (op. cit.), n. to Article 44 of the Digest of Offences.
114. Cf. above, p. 302.
115. [1964] A.C. 1369, 1391; cf. the discussion of “precedent malice” above p. 294. The defence of provocation would still be available if the accused, having formed an intent to take revenge of another, then abandoned this intention, but was subsequently provoked to attack the other: such a narrative of events was accepted by the court in Fantle [1959] Crim.L.R. 585.
116. On a charge of murder, the defence of diminished responsibility might be open to such an individual: cf. above pp. 312-313. On charges other than murder, the accused might attempt to set up a defence of insanity under the M'Naghten Rules, but it is more common for mental disorder to be dealt with on conviction by an order under the Mental Health Act 1959.
117. With crimes other than murder, provocation can be taken into account at the sentencing stage. The arguments here apply equally to the issues of when, and to what extent, provocation should be allowed to mitigate punishment.
118. For further discussion of the problem of determining the gravity of provocation, cf. Ashworth,” Sentencing in Provocation Cases” [1975] Crim.L.R. 553.
119. Some might maintain that there should always be such a duty when dealing with a police officer, whether he is acting lawfully or not: cf. Fennell [1971] 1 Q.B. 428.
120. Cf. Lord Holt C.J. in Mawgridge (1707) Kel. 119, 134: “The like in obstinate and perverse children, they are a great grief to parents, and when found in ill actions, are a great provocation. But if upon such provocation the parent shall exceed the degree of moderation, thereby in chastising kill the child, it will be murder.” In Smith (1914) 11 Cr.App.R. 36, Ridley J., arguendo, observed that” it is difficult to suggest how provocation could be given by a child of two and a half years.”
121. Self-induced provocation cannot be dismissed as a remote possibility: cf. Toch, Violent Men (Harmondsworth 1972), on the role of some violent men as “exploiters” and as” self-image promoters.”
122. Even if the prosecution were to be given the power to raise diminished responsibility in cases where the accused might be mentally abnormal, would that power be used sufficiently often?
123. Op. cit., p. 244.