In order for the defense of provocation to apply in instances of partners, lovers, couples, spouses etc, the relationship must be a relationship that is ongoing or a relationship that is still very much alive. The same can be said in instances where the accused commits a crime of passion (crime passionnel).
Once a relationship is over or has been terminated or has died a natural death, an accused cannot claim that he was provoked by the actions of his ex-girlfriend or her ex-partner.
Let’s say for example an ex-boyfriend comes across his ex-girlfriend in a car with another man and then proceeds to interfere or intervene for reasons best known to him and his ex-girlfriend’s new boyfriends is abusive towards him and in anger he draws a knife out of his back pocket and stabs the man to death. In this instance it is highly unlikely that the defense of provocation is going to be made available to him.
In R v Ahluwalia (1993), the facts are similar to R v Duffy (1949). The accused was constantly abused by her husband. The type of abuse included beating her daily and taking her money. In addition to that he was also having an affair with another woman. On the night of the incident, after subjecting his wife to verbal abuse, the victim threatened to beat her up the following morning.
Once the victim was asleep the accused doused her husband with petrol and set him alight. She was arrested and tried for murder. She raised the defense of provocation but the defense of provocation in line with the decision in R v Duffy (1949) was denied. The accused was convicted for murder and the accused appealed raising the defense of diminished responsibility. The appeal was allowed on the grounds of diminished responsibility however the judge did stress that under normal circumstances both defenses should be raised in the first instance otherwise the defense might exhaust one defense before attempting another. It was decided that the accused was not guilty of murder and a retrial was ordered.
In R v Richens (1993) the accused was aged 17 at the time. The victim had raped the accused’s girlfriend and boasted about it to the accused. The accused lost control and stabbed him with a knife thereby killing him. According to the direction given by the trial judge, losing one’s temper was not an excuse to kill. Most people lost their tempers at some point in time or other but that does not mean that they’d be prompted or compelled to stab someone to death. The jury accordingly convicted for murder. The accused appealed.
The conviction for murder was quashed and replaced instead with manslaughter. Loss of temper or provocation as a whole is a subjective thing and therefore has to be looked at from the state of mind of the accused. If the objective test were applied, a reasonable man would not have stabbed the victim and the accused would most likely be found to be guilty. However reasonable people do not resort to violence, not in most instances anyway and therefore there may be other inherent factors that compelled the accused to act in the manner that he did.
In R v Morhall (1995) the accused was a long-term glue sniffer and the victim taunted and made fun of his habit. The accused in retaliation to the taunts and jeers stabbed him 7 times with a knife thereby killing him. At his trial, the matter before the court was whether glue addiction was a characteristic or a facet of the reasonable man.
The judge directed the jury to the effect that the accused’s characteristics was not something that could be attributed to the reasonable man and therefore the accused was denied the defense of provocation and was convicted for murder. The accused appealed.
On appeal, the House of Lords decided that it was not a matter of whether the characteristics of the accused were credible or otherwise or whether it is a trait a reasonable man would possess. It was a matter of if the characteristic was a permanent feature of the accused or a long-term facet of the accused as opposed to something that happened or occurred in the passing in line with the test in R v Newell (1980). The appeal was allowed and the conviction for murder was substituted with a conviction for manslaughter.
Copyright © 2018 by Dyarne Ward