lc290 Partial Defences to Murder report - Law Commission

provocation, and that to be gross provocation there must have been words or
conduct, or both, which caused the defendant to have a sense of being seriously
wronged.)
“Justifiable” sense of being seriously wronged
3.70 The second aspect is that the defendant’s sense of being seriously wronged
should have been justified. In deciding whether there was gross provocation in
the sense of words and/or conduct which caused the defendant to have a
justifiable sense of being seriously wronged, we do not intend the test to be
purely subjective, i.e. what the defendant thought. It is for the jury to decide
whether there was gross provocation in the relevant sense. In making that
judgement the jury must of course consider the situation in which the defendant
found him or herself and take into account all the characteristics of the defendant
which they consider to be relevant. Taking into account the circumstances and
characteristics of the defendant does not mean that if the defendant considered it
to be gross provocation, the jury must therefore accept that it was gross
provocation. The jury may conclude that the defendant had no sufficient reason
to regard it as gross provocation, or indeed that the defendant’s attitude in
regarding the conduct as provocation demonstrated an outlook (e.g. religious or
racial bigotry) offensive to the standards of a civilised society. Dr Horder gives an
example:
Reconsider the imaginary case of Terreblanche, whose deep-rooted
beliefs include the belief that it is the gravest of insults for a coloured
person to speak to a white man unless spoken to first. If he became
enraged and killed a coloured person for speaking to him in this
way, is the jury to be directed to take his beliefs into account – qua
characteristics – in judging the gravity of the provocation (assuming
there is held to be a ‘real connection’ between the provocation and
those beliefs, or that the victim deliberately spoke to him as a
challenge to those beliefs)? Would not such a direction be an
outrageous compromise of society’s commitment to racial
tolerance? 44
3.71 Our answer to the question posed in the last sentence is yes. No fair-minded jury,
properly directed, could conclude that it was gross provocation for a person of
one colour to speak to a person of a different colour. In such a case the proper
course would therefore be for the judge to withdraw provocation from the jury.
(We discuss the role of judge and jury below.) 45
Does the provocation need to emanate from the deceased?
3.72 We have not stipulated that the provocation should come from the deceased. Our
only reason for not doing so is that there may be cases of accident or mistake
where we consider that the defence should be capable of applying. We discuss
44 Provocation and Responsibility (1992) p 144.
45 Paras 3.141 – 3.152.
47