PROVOCATION: TO BE OR NOT TO BE AN
ATTRIBUTED CHARACTERISTIC

*Simon Parsons

There is currently disagreement as to when a characteristic of the defendant can
be attributed to the reasonable man in the objective question in the defence of
provocation before that question is considered by a jury. The issue is whether
there is a distinction between provocability (impaired self-control) and
provocativeness (increased sensitivity). It has been strongly argued that, when
considering whether a defendant has complied with the standard of self-control
which is required if provocation is to be established in law, characteristics such
as the defendant's explosive temperament must be excluded from the objective
question, as these relate to self-Control. 1 In contrast, individual characteristics
which go to the gravity of the provocation should be included as these increase
the defendant's sensitivity to the provocation. This article will argue that
decisions of the House of Lords and the Privy Council have developed and
maintained this distinction whilst decisions of the Court of Appeal have not. The
reasons for this conflicting case law will also be considered.

Section 3 of the Homicide Act 1957 provides:

"Where On a charge of murder there is evidence On which the jury
can find that the person charged was provoked (whether by things
done or by things said or by both together) to lose his self-control,
the question whether the provocation was enough to make a
reasonable man do as he did shall be left to be determined by the
jury; and in determining that question the jury shall take into
account everything both done and said according to the effect
which, in their opinion, it would have on a reasonable man."

Provocation is a special or partial defence in that it reduces a killing that would

• Senior Lecturer in Law, Southampton Institute. I am grateful to Howard Davies, Georgina
Andrews and an anonymous reviewer for their helpful comments on an earlier draft of this
article.
1 A.Ashworth, "The Doctrine of Provocation" [1976] c.J.L. 292 at pp.299-300.

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. have been murder to voluntary manslaughter and thus gives a judge discretion
when sentencing. The defence involves two questions. First was the defendant
provoked to kill? 3 Second, would a reasonable man in the same circumstances
been provoked to "do as [D] did?''''The burden of proof is on the prosecution so
for the defence to succeed the jury must hold a reasonable doubt on both
questions.

THE SUBJECTIVE QUESTION'

The first question for a jury to consider is whether the defendant was provoked to
lose his self-control.s The defendant need not completely lose his self-control in
the sense that he did not know what he was doing, it being sufficient that he
became so angry that he was unable to restrain himself6 If the defendant lost his
self-control for some other reason, for example, 'fevenge or fear, then the defence
will not be available to him.? The jury can take into account all the defendant's
characteristics when considering this question because they will be able to
consider the relevant evidence which will include those characteristics. The
provocation must amount to specific words or conduct or both, as the jury must
have an idea what the provocation was, otherwise it will be asked to do the
impossible when considering the objective question - the reaction of the

2 Provocation is available as a defence only to a murder charge although this includes an
accomplice to murder.
3 The provocation need not be illegal or wrongful but can amount to, for example, a baby
crying: Doughty (1986) 83 Cr.App.R. 319.
4 This should, it is submitted, mean "to kill" and not "to kill and act as D did after the killing"
because conduct after the killing should be irrelevant but the Court of Appeal in Clarke [1991]
Crim. LR. 383 objected to this view. In that case the defendant strangled the victim and then
electrocuted a corpse. The Court of Appeal held.that there was no limitation to the words "do
as he did" and the electrocution should be considered
5 The provocation does not necessarily have to originate from the victim. Provocation can
originate from third parties (Davies [1975] Q.B. 691) or be directed at third parties:Pearson
[1992] Crim.LR. 193.
6 Richens (1994) 98 Cr.App.R. 43.
7 Thus it appears that the underlying emotion accompanying a loss of self-control is limited to
anger which tends to be a male emotion rather than female. However why should not fear be
the underlying emotion? This point has not been considered by the Court of Appeal or the
House of Lords, although the High Court in Australia has commented: "No doubt it is true to
say primarily anger is a feature of provocation and fear a feature of self-defence. But it is too
much to say that fear caused by an act of provocation cannot give rise to a defence of
provocation." Van den Hoek v. R. (1986) 161 CLR. 158 at 167.

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PROVOCATION: ATTRIBUTED CHARACTERISTICS

reasonable man to unknown provocation.8

THE OBJECTIVE QUESTION.

The jury may determine that there is a reasonable possibility that the defendant
was provoked to lose his self-control when he killed. This does not mean the
defendant will succeed in the defence unless the jury is also satisfied that there is
also a reasonable possibility that "the provocation was enough to make a
reasonable man do as he [the defendant] did.,,9 Before this second question can
be considered by a jury thejudge will need to direct it as to which of the
defendant's characteristics can be attributed to the reasonable man. This is the
source of conflict between the Court of Appeal on the one hand and the House of
Lords and the Privy Council (at least a majority in the Privy Council) on the
other.

In Bedder v DPP the House of Lords held that the reasonable man was an
ordinary normal adult person, thus a purely objective test was imposed. 10 So if
the defendant was a juvenile he was disadvantaged, as the self-control of an adult
person would be expected of him. In addition the common law rule was that
provocative occurrence was limited to acts of violence by the victim upon the
defendant. Thus there was no need to consider provoking words, so if the
defendant was provoked about, for example, his impotence that characteristic
could not be attributed to the reasonable man when applying the objective test.

Section 3 of the Homicide Act 1957 amended the common law in three ways.
First, it allowed words alone to constitute provocation. Second, it consequently
allowed the defendant's characteristics to be taken into account when applying
the objective test. Third, ifthere is any evidence of provocation, a judge has a
duty to leave the defence of provocation to the jury. 11 In Camplin the House of
Lords held that the decision in Bedder required revision in view of these changes
made to the common law.12 In Camplin the victim forcibly buggered the
defendant, who was a fifteen year old boy, and then laughed at him. This
provoked the defendant to lose his self-control so that he hit the victim over the
head with a chapati pan killing him. On appeal to the House of Lords, Lord

8 Acott [1986] Crim.L.R 664.
9 S.3 of the Homicide Act 1957.
10 [1954] 1 W.LR. 1119.
II Even if the judge is satisfied that any reasonable jury would be sure that the provocation
would have not provoked a reasonable man to kill. A defendant has a right to a perverse
verdict although loss of this right has no redress on appeal: Dhillion [1997] Crim.L.R 295.
12 [1978] A.C 705.

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Diplock stated:

"[a] proper direction to ajury ... should state ... that the reasonable
man referred to in the question is a person having the power of
self-control to be expected of an ordinary person of the sex and
age of the accused, but in other respects sharing such of the
accused's characteristics as they think would affect the gravity of
the provocation to him; and that the question is not merely
whether such a person would in like circumstances be provoked
to lose his self-control but also whether he would react to the
provocation as the accused did.,,13

It is the use of this direction as an interpretation of the objective question in
section 3 which has led to the conflicting case law. However, there is some
agreement in that the courts agree that age is relevant in the assessment of the
level of the standard of self-control which has to be complied with, if provocation
is to be established in law. Thus, a lower level of self-control is expected of a
juvenile compared to that of an adult. The relevance of gender or sex to self-
control is not wholly clear but if the social conditioning of women not to react
with violence is relevant then a higher standard of self-control would be
expected. But this breaches the principle of equality before the law and the High
Court of Australia has rejected this view, holding that only age is relevant to the
level of self-control to be expected. 14

It is the second possible use of the direction as an interpretation of section 3
which has led to the tension between the courts. Two years after Camplin came
the Court of Appeal decision of Newell. IS In Newell the defendant's girlfriend
had left him because of his alcoholism. The defendant became grief stricken and
attempted suicide. Having survived a suicide bid, the defendant went to the
victim's flat where they both drank a substantial amount of alcohol. The
defendant was explaining to the victim how devastated he was when the victim
said: "Why don't you forget that fucking bitch; she's no fucking good for you.
Why don't you come to bed with me?,,16 This provoked the defendant to hit the
victim over the head with a heavy ashtray at least twenty times, killing him. The
Court of Appeal relied on an obiter dictum of North 1. in the New Zealand

13 Ibid at 7]8.
14 Masciantonio (1995) 69 A.L.J.R. 598; Stingel (1996) 20 Crim. L.R. 72.
15 (] 980) 71 Cr.App.R 331.
16 Ibid at 333.

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PROVOCATION: ATTRIBUTED CHARACTERISTICS

decision of McGregor17 for sole guidance for the meaning of Lord Diplock's
direction in Camplin. North 1. stated:

"[t]he characteristics must be something definite and of sufficient
significance to make the offender a different person from the
ordinary run of mankind, and have also a sufficient degree of
permanence to warrant its being regarded as something
constituting part of the individual's character or personality ...[It
covers] not only ... physical qualities but also ... mental qualities
and such more indeterminate attributes as colour, race and
creed ... Moreover... there must be some real connection between
the nature of the provocation and the particular characteristic of
the offender by which it is sought to modify the ordinary man test.
The words or conduct must have been exclusively or particularly
provocative to the individual because, and only because, of the
characteristic.,,18

The Court of Appeal found this to be "impeccable"19 and applied it by not
allowing the defendant's grief to be taken into account when considering whether
an ordinary person would have been provoked by the victim's disparaging
remarks about the girlfriend. The reason must be that the grief was only a
transitory phenomenon and not permanent and thus had to be excluded. However
in Camp/in Lord Simon had stated the "entire factual situation,,2o is relevant to
the assessment of the gravity of the provocation and in Morha/P Lord Goff
criticised the requirement that characteristics had to be permanent stating that
transitory physical conditions (such as eczema) should be taken into account if
the subject oftaunts.22 The conclusion must be that the Court of Appeal was
wrong to exclude the defendant's grief from the assessment and such exclusion
was prejudicial to the defendant?3

17 []962] N.Z.LR. 1069.
18 Ibid at 1081-1082.
\9 Supra n.15 at 340.
20 Supra n.]2 at 727. Approved by Lord Goffin Morhall [1995] 3 All E.R. 659 at 665. Thus
if the defendant is a battered woman (whether suffering from battered woman syndrome or
not) and there is a history of battering which increases the gravity of the provocation of the
last case of violence then the ordinary person in the objective question should be subject to
that history.
2\ [1995] 3 All E.R. 659.
22 Ibid at 667.
23 The Court of Appeal was right to exclude the defendant's chronic alcoholism as that

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The decision in Newell has influenced other decisions of the Court of Appeal.
In Ahluwalia Lord Taylor confmned that a permanent characteristic relating to
the mental state or personality of an individual could be taken into account by a
jury when applying the objective test.24 In Dryden25 Lord Taylor held that the
defendant's obsessional behaviour was a relevant characteristic.26 In
Humphreys27 Lord Justice Hirst held that the defendant's abnormal immaturity
was permanent and therefore a relevant characteristic.28 In Thornton (No.2/9

Lord Taylor held that battered woman's syndrome and the defendant's
personality disorder were relevant characteristics.30 All these decisions quote
North 1.'s dictum but only apply the first part of it relating to the permanence of
the characteristics. The latter proviso requiring that the characteristics go to the
gravity of the provocation is not applied.

This has not been accepted as good law as in the Privy Council decision of Luc
Thiet Thuan v R31Lord Goff criticised Newell for "the wholesale adoption,
without analysis, of a substantial part of [North J's] obiter dictum,,32 because that
dictum interpretated a New Zealand statute which provided for a provocation
defence33 but not a separate defence of diminished responsibility34 Thus the
influence of Newell on the subsequent Court of Appeal decisions in Ahluwalia,
Dryden, Humphreys and Thornton (No.2) is "to incorporate the defence of
diminished responsibility indirectly into the law of provocation,,35 with the result
of transforming "the objective approach,recognised by the United Kingdom
Parliament in 1957, into a subjective approach, though doubtless l1aving the

characteristic did not go to the gravity of the provocation: Supra n.15 at 340.
24 [1992] 4 All E.R. 889 at 897-898.
25 [1995] 4 All E.R. 987.
26 Supra n.25 at 998. This was obiter as the Court found that the defendant had not lost his
self-control.
27 [1995] 4 All E.R. 1008.
28 Ibid n.27 at 1022. This means that there is no distinction between chronological age and
immaturity as both can be taken into account even though both do not go to the gravity of the
provocation. The appeal was allowed and a conviction for manslaughter substituted. Upon
release the defendant died of a drug overdose having become addicted to prescribed
tranquillisers in prison.
29 [1996] 2 AllE.R. 1023.
30 Ibid at 1031.
31 [1996] 2 All E.R. 1033.
32 Ibid at 1043.
33 New Zealand Crimes Act 1961 s.169.
34 Cf s.2 of the Homicide Act 1957 and s.3 of the Hong Kong Ordinance.
35 Supra n.31 at 1046.

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PROVOCA nON: ATTRIBUTED CHARACTERISTICS

effect of excluding cases of intoxication and bad temper. ,,36 The further
complication which flows from this approach is that with diminished
responsibility the burden of proof (the civil burden) is on the defendant and thus:

"[i]f diminished responsibility was held to fonn part of the law of
provocation, the extraordinary result would follow that a
defendant who failed to establish diminished responsibility ...
might nevertheless be able to succeed on the defence of
provocation ... on the basis that, on precisely the same evidence,
the prosecution failed to negative, on the criminal burden, that he
was suffering from a mental infirmity affecting his self-control
which must be attributed to the reasonable man for the purposes
of the objective test. ,m

This leads on to the crucial question in this article - what is the nature and
purpose of the objective test? The explanation of Lord Diplock's direction by
Lord Goff in Morhall and Lue Thiet- Thuan can be taken to indicate that any
characteristic is relevant to the assessment of the gravity of the provocation even
if that characteristic is discreditable38 It is submitted that this reasoning was
influenced by Professor Ashworth's conclusion made in 1976 that:

"[t]he proper distinction ... is that individual peculiarities which
bear on the gravity of the provocation should be taken into
account [provocativeness], whereas individual peculiarities
bearing on the accused's level of self-control should not
[provocability ]"39

This means that where a defendant loses his self-control as a result of being
provoked about one of his characteristics, that characteristic should be taken into
account when applying the objective test so that a proper assessment of the
seriousness or gravity of the provocation can take place. Thus, for example, if the

36 Supra n.31 at 1047-1048. Cf New Zealand where in McCarthy [1992] 2 N.Z.L.R. 550
Cooke J. considered that s. 169 of the New Zealand Crimes Act 1961 had the legislative
purpose of introducing diminished responsibility into the defence of provocation and because
of this the second part of North J.'s obiter dictum was wrong.
37 Supra n.31 at 1046.
38 Discreditable characteristics would include alcoholism but not the fact the alcoholic
defendant was the worse for drink at the time of killing :Morhal/ [1995] 3 All ER 659 at
666-667.
39 Supra n.1 at p.300.

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defendant is taunted about his sexuality then this will be a relevant characteristic
to be attributed to the ordinary person as it bears on the gravity of the
provocation, whereas if he is taunted about his nationality, his sexuality would be
irrelevant. Why has this distinction been made? One possible answer is that the
objective component of Lord Diplock's direction is the ordinary person's power
of self-control. In Morhall Lord Goff stated that "[t]he function of the
[reasonable man] test is only to introduce as a matter of policy, a standard of
self-control which has to be complied with if the provocation is to be established
in law.'040The policy underlying the objective question is to reduce the
occurrence of fatal violence by stopping a person relying on his exceptional
pugnacity or excitability as an excuse for the loss of self control.41 According to
this view, by allowing mental characteristics to be attributed to the ordinary
person, when such characteristics do not go to the gravity of the provocation, the
Court of Appeal is confusing provocability with provocativeness. This means that
the distinction between the subjective and the objective questions is breaking
down, because the objective application of the ordinary person's power of self-
control is being eliminated.

Lord Goff states that this approach should be halted and the distinction
between provocabi1ity and provocativeness should be maintained.42 However, in
his dissenting judgment in Luc Thiet Thuan v R Lord Steyn maintains that the
Court of Appeal decisions are right in that "[t]he law remains that a defendant
may not call in aid his own irascibility or pugnacity ... that does not mean it was
right to ask the jury to ignore the defendant's brain damage.'043This has received
academic criticism:

"A jury may well wonder whether there is any difference between
an eccentric and highly abnormal obsessional personality and an
explosive one, especially when the personality is being advanced
as the reason why the defendant "blew up". Can we really
distinguish between irascibility and the various mental conditions
which give rise to irascibility? It seems that Lord Steyn's opinion
would virtually eliminate the distinction between the subjective
and objective tests.'044

40 Supra n.21 at 665.
41 Supra 0.12 at 716 per Lord Diplock.
42 Supra 0.31 at 1045
43 Supran.31 at 1055.
44 J.C.Smith in the commentary to Humphreys [1996] Crim L.R 432 at p.434.

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PROVOCATION: ATTRIBUTED CHARACTERISTICS

But is this really the case? There is support for the view that a qualified
objective condition is possible, even though the defendant's mental condition is
taken into account, in that there is not an unquestioning acceptance of
defendant's inability to exercise self-control. The inability to exercise self-control
has to be reasonable for that defendant.45 The question is what is the precise
nature of this objective element? It must involve the jury applying their common
experiences of such mental conditions, however these are likely to be limited to
that ofthe defendant. It appears,therefore, that this interpretation will compel the
jury to apply the subjective question twice which is a nonsense. It is submitted
that the real effect of the Court of Appeal decisions is to lower the standard of
self-control required for those unfortunate enough to suffer from incapacitating
mental conditions. It could be argued that this is consistent with allowing a lower
standard for young people but, unlike New Zealand law, English law allows for
the separate defence of diminished responsibility and:

"[t]he distinction between the two [provocation and diminished
responsibility] ought logically be based on causal grounds. Where
D's reaction was caused predominantly by the provocation, the
defence should be provocation [provocativeness]. Where the
reaction stemmed predominantly from some psychological or
physical condition affecting D's behaviour, the defence should be
diminished responsibIlity [provocability] ,,46

Unfortunately this distinction between provocativeness and provocability is not
being maintained in the Court of Appeal. In Smith47 it was held that the
defendant's severe depressive illness which resulted in him being disinhibited
should have been attributed to the reasonable man even though it did not go to
the gravity of the provocation.48 A jury may well query the difference between
disinhibition and exceptional pugnacity or excitability. The answer must surely
be that there is no difference as a defendant's disinhibition, irascibility,
pugnacity, excitability or explosiveness all have the same effect of reducing the
defendant's self-control. These characteristics should be excluded as the
objective question is the application of the ordinary person's power of self-

45 See A.Buchanan & G.Virgo, "Duress and Mental Abnormality" [1999] Crim.L.R. 517 at
pp.530-531. C.M.V.Clarkson & H.M.Keating, Criminal Law Text and Materials (4th ed.,
Sweet & Maxwell, 1998) at p.334.
46 A.Ashworth, Principles of Criminal Law (3'd ed., Oxford University Press, 1999) at p.278.
47 [1998] 4 All E.R. 387.
48 Ibid at 399.

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control and to do otherwise is inconsistent with section 3 of the HomicideAct.

CONCLUSION

It is submitted that the majority in the Privy Council in Lue Thiet Thuan v R
came to the right decision because the objective question in the defence of
provocation is indeed the application of the ordinary person's power of self·
control and those defendants who are mentally disordered should rely on
diminished responsibility. The decision in Lue Thiet Thuan has influenced trial
judges, for example, in Parker where the trial judge ruled that the defendant's
brain damage caused by chronic alcoholism should be excluded as he was not
provoked on that condition - a decision reversed by the Court of Appeal 49
However, the influence of Lue Thiet Thuan is limited since decisions of the Privy
Council are not binding on the Court of Appeal but rather are persuasive
precedents. If there had been five Law Lords sitting, who had displayed
unanimity, the decision in Lue Thiet Thuan would have been very persuasive as it
would represent the view of the House of Lords, but regrettably there were only
two Law Lords and they disagreed. Thus the persuasiveness of the decision is
limited and the Lord Chief Justice, Lord Bingham (as he then was) made the
obiter point in Campbell50 that the Court of Appeal decisions are binding on trial
judges until overruled by a House of Lords decision.51 Why has the Court of
Appeal continued with this approach? The answer must be so that there can be a
liberalisation of the defence in favour of defendants because, having decided who
the reasonable man is, the jury must then apply the objective test. That involves
deciding whether there is a possibility that a reasonable man would also been
provoked to lose his self-control and kill. The jury are more likely to consider
there is such a possibility if the reasonable man has, for example, the defendant's
disinhibition as an attributed characteristic. In effect the standard of self control
required of those who suffer from mental illness is lowered below that required
of capable defendants. The policy behind this approach appears to be to allow
such defendants (including women who suffer domestic violence resulting
battered woman syndrome) to have their response regarded as reasonable rather
than mentally abnormal as is required for the purposes of diminished

49 [1997] Crim.L.R. 760; [1997] Lexis transcript, 13th September, 1999.
50 [1997] 1 Cr.App.R. 199.
51 Ibid at 207. A defining decision of the House of Lords will now be forthcoming as in Smith
the Court of Appeal, having followed its earlier decisions on provocation, took the unusual
step of granting leave to appeal: Supra n.47 at 401; and see infra Postscript for analysis of the
decision of the House of Lords in Smith.

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responsibility. The problem with the approach of the Court of Appeal is that it is
eliminating the ordinary person's power of self-control and Parliament cannot
have had this in mind when it enacted section 3 of the Homicide Act 1957. If the
draft criminal code (Clause 58 52) were enacted the distinction between
provocability and provocativeness would be maintained as the second objective
limb of the clause is as follows: "(b) the provocation is, in all the circumstances
(including any of his personal characteristics that affect its gravity), sufficient
ground for the lose of self-control." It is hoped that the forthcoming House of
Lords decision in Smith will see a return to the interpretation of section 3 given in
Camplin so the distinction between provocability and provocativeness is re-
established.

POSTSCRIPT

The House of Lords has now made its decision in Smith and by a majority of
three to two has upheld the decision of the Court of Appeal to quash the
respondent's murder conviction. 53 It is Lord Hoffman's judgment that most
clearly sets out the reasons for this decision, and the other two Law Lords in the
majority, Lord Slynn and Lord Clyde, agreed with his speech. Lord Hoffman
acknowledges that section 3 of the Homicide Act changed the common law so
that if there is any evidence of provocation a judge has a duty to leave the
defence of provocation to the jury. 54 A number of consequences flow form this.
The first is that the jury is given not only a fact-finding function but also a
normative one so that: "[t]hey were to determine not merely whether the
behaviour of the accused complied with some legal standard but could determine
for themselves what the standard in the particular case should be. ,,55 This means,
in respect of the objective question, juries are to decide what, in law, amounts to
provocation, and, in deciding this question, they can take account of any of the
defendant's characteristics whether relevant to the gravity of the provocation or
not. It would be a trespass upon a jury's province for a judge to direct them to
ignore any of the defendant's characteristics when deciding whether the objective

52 "A person who, but for this section, would be guilty of murder is not guilty of murder if -
(a) he acts when provoked (whether by things done or by things said or both and whether by
the deceased person or by another) to lose his self-control; and
(b) the provocation iS,in all the circumstances (including any of his personal characteristics that
affect its gravity), sufficient ground for the loss of self-control. (Law Commission Working
Paper. No.I77, 1989).
53 [2000] 3 w.L.R. 654.
54 Ibid at 667H-668A.
55 Ibid at 668B.

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element of provocation had been satisfied. 56If a judge did make such a direction
in respect of one characteristic which the jury thought central to the question of
whether the act was sufficiently provocative then "the effect of such a direction
would be to withdraw the issue of provocation altogether and this would be
contrary to the terms of section 3.,,57The policy behind this is the principle of
compassion to infirmity which includes not only youth but to other characteristics
such mental illness or indeed being a battered wife.58 The second consequence
flows from the first: "the law now recognises that the emotions which may cause
loss of self-control are not confined to anger but may include fear and despair. ,,59
Lord Diplock's "proper direction to the jury" in Camplin60 is distinguished as a
specimen direction suitable only for cases like Camplin and "not a one-size-fits
all direction for every case ofprovocation.,,61 The third consequence is that by
consigning the whole of the objective element in provocation to juries there will
be an overlap between provocation and diminished responsibility as a jury can no
longer be told to ignore, when considering provocation, characteristics which
may found the defence of diminished responsibility.62 Lord Hoffman's view is
that this is not only what section 3 requires, but represents the reality of how the
law actually operates because juries have difficulty in distinguishing between
characteristics that go to the gravity of the provocation and those relating to self-
control. 63 Lord Hoffman states that a direction on provocation to a jury should
avoid reference to a reasonable man, instead any explanation should be in simple
language. A suggested direction is given although this is not prescribed as:

"[i]f judges are freed from the necessity of invoking the formula
of the reasonable man equipped with an array of unreasonable
'eligible characteristics,' they will be able to explain the
principles in simple terms.'>64

This decision represents a confirmation of the liberalisation of the defence by
the Court of Appeal in favour of defendants. It means that a lower standard of
self-control will be required of those who suffer from mental illness in

56 Ibid at 668C & 668D.
57 Ibid at 668D.
58 Ibid at 670E & 673H.
59 Ibid at 673H.
60 Supra n.l3.
61 Supra n.53 at 671E.
62 Ibid at 673E & 673F.
63 Ibid at 670F, 673H, & 674A.
64 Ibid at 679B

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PROVOCATION: ATTRIBUTED CHARACTERISTICS

comparsion to capable defendants. Lord Slynn acknowledges this:

"[i]t does enable the jury to decide whether in all the
circumstances people with his characteristics would reasonably
be expected to exercise more self-control than he did or put
another way that he did exercise the standard of self-control
which such persons would have exercised. ,,65

But the decision goes further than this as fear or despair are accepted as emotions
that can underlie the loss of self control and it is battered women who experience
these emotions when they kill their abusive partners. But there is contradiction in
Lord Hoffman's speech as he states "male possessiveness and jealousy should
not be acceptable reason for loss of self-control leading to homicide ,,66 and that
a direction should be given to a jury that jealousy and obsession should be
ignored when considering the objective element.67 The policy behind this is to
protect the public by the law insisting that possessive and jealous men should
exercise self-control. It is true that such men should exercise self-control but, if
Lord Hoffman's reasoning on section 3 is correct, is it not a matter for the jury to
decide? Juries can surely distinguish between the despair of a battered woman
and the anger of jealous man. It is submitted that if characteristics and emotions
are the province of the jury that means all characteristics and all emotions and to
hold otherwise is a breach of the principle of equality before the law as such a
direction would withdraw, from the jury, the issue of provocation in respect of
such men.68

The liberalisation of the defence is good news in one sense because it may help
to reduce the incidence of domestic violence in society and this is to be
welcomed. The concern is that a question of law is being left to juries and this is
going to lead to inconsistency when the criminal law should be consistent. In his
dissenting speech Lord Hobhouse recognises this:

"[t]he function of the criminal law is to identify and define the
relevant legal criteria. It is not proper to leave the decision to the
essentially subjective judgement of individual jurors who happen

65 Ibid at 660H & 661A.
66 Ibid at 674G.
67 Ibid.
68 There may also be a breach of Article 6 of the European Convention of Human Rights- the
right to a fair trial-as by section 6 of the Human Rights Act 1998 courts must act in a way
which is compatible with Convention rights.

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THE DENNING LAW JOURNAL

to be deciding the case. Such an approach is apt to lead to
idiosyncratic and inconsisent decisions. ,,69

However, the majority disagreed so there will be inconsistent decisions which
means if a defendant raises the defence of provocation he or she may be faced
with not having any idea as to whether the defence will succeed or not.

69 Supra n.s3 at 710D.

152