Loss of control with regards to provocation occurs prior to the act of killing a person and it is not a valid defense to say that it occurred during the act of inflicting bodily harm especially when inflicting bodily harm was something that had been pre-planned i.e. an accused cannot raise the defense of loss of control after he or she had started physically assaulting the victim.
In R v Ibrams & Gregory (1982) the accused (2 men) planned to inflict serious bodily harm to an ex-boyfriend of one of the accused’s girlfriend. The victim was particularly brutal and had threated his ex-girlfriend and her new boyfriend with violence on numerous occasions. The pair attacked the victim while he was in bed and while hitting him they went too far and killed him. They were charged with murder and they raised the defense of provocation in that the victim’s conduct was provocative and that they had lost all control while they were hitting him and it was the loss of control that had led to his death.
The court held that the fact that the act was premeditated implied that the accused did in fact intent to inflict some sort of bodily harm, albeit a less serious type of harm. Loss of control was something that occurred at the spur of the moment caused by something the accused had seen or heard and not something that occurred while the accused were in process of inflicting bodily harm.
In R v Raven (1982) the accused was a 22-year-old man who had the mental capacity or thought like a 9-year-old. He was suffering from an inherent disability. A homosexual man made advances at him and the accused in retaliation stabbed him with a knife and thereby killed him. At the trial, the judge in accordance with the decision in DPP v Camplin (1978) directed the jury that the test to be applied was that of a 22-year-old man who thought like a 9-year-old boy, taking into account both the accused’s age and his inherent disability.
Whether provocation could be raised as a valid defense or otherwise depends on the facts and there is no hard and fast rule. In R v Doughty (1986) the accused was the father of a newborn baby who was born as a result of a cesarean. The mother was recovering at the time and the additional stress of looking after her while she recovered, doing the cooking and the other household chores etc. somehow got the better of him.
On the day of the incident, the baby was persistently crying. He did all that he could to pacify the baby and nothing seemed to work and finally he put his hand over the baby’s mouth to stop the child from crying. However, he’d pressed down harder than he intended and the baby died. The man was convicted for murder. Applying the test in DPP v Camplin (1978) it can be said with some degree of certainty that a reasonable man would not have acted in the manner that he did. He appealed and raised the defense of provocation. The defense was allowed and the conviction for murder was substituted with that of manslaughter.
In R v Johnson (1989) the accused was at a night club where he started talking to a girl. She took exception to his accent and insulted him. The accused then threatened her and her male friend intervened and poured a glass of beer over his head. The accused got angry and stabbed the victim with a broken glass thereby killing him. The accused was arrested and charged. At the trial, the accused raised the defense of self-defense but did not raise the defense of provocation. The jury rejected the defense of self-defense and the accused was convicted. The accused appealed on the grounds that he was provoked and that the trial judge had left out the fact that he may have been provoked.
The appeal was allowed. It was found that in this instance provocation was a valid defense and the conviction for murder was substituted for that of manslaughter. Words and acts depending on their intensity are sufficient to constitute provocation. The test yet again is subjective and what might constitute provocation to one party might not constitute provocation to another.
It this instance, the words that were spoken by the girl held a racial slur and while some might be just content to laugh it off, others may not. It is not possible to generalize what constitutes provocation and what doesn’t.
Likewise, if it can be established that the defendant already had the intent to kill and then got into a heated argument with the victim during which time the victim said something that could be or may be deemed to be provocative, the defense might still not be applicable as in instances where there is simmering rivalry between two parties.
Copyright © 2018 by Dyarne Ward