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The Defence of Provocation in Criminal Law

I was provoked into committing a crime, will I be found guilty? 

What is provocation?

Under the English Legal system, provocation can be a defence to murder where the defendant pleads a sudden loss of self control as a direct result of things done or said by another person.

Is provocation a defence?

Provocation is a special defence, and it is only available as a defence to murder. Provocation can also be used as a partial defence to murder which would reduce the liability from murder to manslaughter. Your solicitor will advise you whether to use provocation as a full or partial defence depending on the surrounding circumstances of the case.

The reasons for allowing provocation as a defence

• A person who commits murder under provocation is not considered in control of their own mind. Not necessarily as blameworthy as someone who commits murder in cold blood with every intention of murder being a result.
• By allowing provocation as a defence to murder justice is served to those who deserve punishment, and the punishment fits the crime appropriately.

S3 Homicide Act 1957

This section lays out a two part test to be considered where there is a charge of murder and there is evidence to show that the person charged with murder was provoked either by things done or by things said, and that the provocation made that person lose self-control and commit the murder.

The test was created to see if the reasonable person would have acted in the same way as the person charged with the murder to help the jury decide whether that person should be guilty of murder, manslaughter or no crime at all.  

The 2 requirements needed to allow a defence of provocation

• Firstly, the person charged with the murder was provoked either by things done or by things said and this caused him to lose his self-control and commit the murder in question.
• Secondly, the provocation was enough to make any reasonable man act in the same way as the defendant did in the same circumstances.

If a jury is satisfied that both these requirements are sufficiently met then provocation should be allowed as a defence. Whether or not provocation will be used as a partial or full defence to murder will depend on the circumstances and a solicitor will advise you on which route to take.

What may cause the loss of self-control? 

• To satisfy the first requirement, a person must have lost their self-control by either something said or done.
• It does not have to be something said or done by the victim or the defendant, just something said or done that has provoked the defendant to loose his self-control.

The loss of self-control must be sudden and temporary 

Provocation requires a loss of self-control that is so sudden and temporary that the defendant, for that moment in time, is not master of his own mind. Basically the defendant cannot control the thoughts in his mind at that time and as a result he committed the murder.

In circumstances where revenge is the overriding factor, or the defendant has had time to think and plan his actions, provocation would not be available as a defence as the loss of control is not sudden and temporary,

Must the loss of self control immediately following the provoking act? 

The longer the delay between the act that provoked the defendant to commit the crime and the actual loss of self control, the less likely the courts are to allow provocation to be a defence to murder.

Was the provoking act enough to make a reasonable person act in the same way as the defendant did? 

Before looking at whether a reasonable person of similar characteristics would have acted in the same way the jury will be directed to look at how severe the provocation was.

The jury will be asked if the provocation was a general passing comment, an insult or taunt, or the application of physical force such as a fight or an argument that leaves the defendant too suddenly and temporarily lose their self control and commit the offence of murder.

Did the defendant use the expected amount of self control that would be likely of the reasonable person?

For the defence of provocation to be available to someone facing a murder charge, the loss of self control must have been a reasonable foreseeable consequence of the provoking act. If the reasonable person who shares many of the same characteristics of the defendant would have never lost his ‘temper’, his self control in the same way or under the same circumstances as the defendant then provocation, as a defence to murder is likely to fail.

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