lc290 Partial Defences to Murder report - Law Commission

The provoking conduct
3.25 In Consultation Paper No 173 we explained that because the word “provoked” in
section 3 of the 1957 Act has come to be interpreted as meaning no more than
“caused”, conduct can qualify as provocation although it is of a minor character or
even entirely lawful. 13 We did not put a specific question to consultees about this,
but one highly experienced judge expressed the views held by many respondents
when she wrote:
The scope of provocation has been so enlarged that a judge is
obliged to leave it when … the conduct and/the words in question
are trivial. The issue should only arise where circumstances are
sufficiently grave to justify it. Such tightening up would not remove
the last straw in the slow burn of domestic violence, although
provocation must always be distinguished from revenge.
Sudden and temporary loss of self-control
3.26 In Consultation Paper No 173 we discussed this ingredient of the defence and
the problems to which it has given rise. 14 There is no satisfactory definition of loss
of self-control. In Oneby 15 it was said that to reduce a crime from murder to
manslaughter the provocation had to arouse in the defendant “such a passion as
for the time deprives him of his reasoning faculties”. Similarly in Duffy 16 Devlin J
spoke of provocation “rendering the accused so subject to passion as to make
him or her for the moment not master of his mind”. 17
3.27 However, the equation of loss of self-control with deprivation of reasoning
faculties has been only partial. The courts have rejected the argument that a
reasonable person who has lost self-control cannot be fully responsible for their
conduct. In Phillips v The Queen 18 Lord Diplock said:
Before their Lordships, counsel for the appellant contended, not as
a matter of construction but as one of logic, that once a reasonable
man had lost his self-control his actions ceased to be those of a
reasonable man and that accordingly he was no longer fully
responsible in law for them whatever he did. This argument is based
on the premise that loss of self-control is not a matter of degree but
is absolute; there is no intermediate stage between icy detachment
and going berserk. This premise, unless the argument is purely
semantic, must be based upon human experience and is, in their
Lordships’ view, false. The average man reacts to provocation
according to its degree with angry words, with a blow of the hand,
13 Paras 4.8 – 4.11.
14 Paras 4.15 – 4.28.
15 (1727) 2 Ld Raym 1485; 92 ER 465.
16 [1949] 1 All ER 932.
17 Ibid.
18 [1969] 2 AC 130.
35