Crime XXVII – Provocation III

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 and the accused appealed.

The conviction for murder was quashed and replaced instead with that of manslaughter. Loss of temper or provocation as a whole is a subjective thing and therefore it has to be looked at from the perspective of the accused’s state of mind at the time he or she committed the act.

Furthermore in accordance with the test in DPP v Camplin (1978) the accused has to be judged in accordance with the standards that would be imposed on a 17 year old and not in accordance to the standards that is expected of a reasonable man.

The term reasonable man itself implies that the person in question is of sound mind and judgment and has the presence of mind and the clarity of thought of a mature man.

Scientifically, as hard as it may be to accept, men overall only mature at the age of 40 or above and while some mature faster than others if we were to set an age as to when men really start to think, it would be from the age of 21 onwards and a 17 year old would not fit the criteria of a reasonable man and accordingly is best judged in accordance with the standards imposed on a 17 year old.

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 trial 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.

According to the Newell test in order for the jury to decide whether there was provocation, the jury ought to take into account the long-term, permanent characteristics of the accused. Permanent characteristics denotes a lasting or enduring feature and not something that happens in passing or something that would fall into the category or the classification of “normal vicissitudes of life” i.e. a sudden change in circumstances usually a downturn or a reversal of fortune for example when a partner in a relationship decides to end or terminate the relationship. It can be saddening or depressing but on a charge of murder that sudden change in circumstances cannot exempt the accused from being convicted.

In R v Newell (1980), the accused was an alcoholic with a drug problem who was recovering from an overdose at the time of the incident. He’s girlfriend had recently left him and the victim a male friend made sexual advances at him. The accused in response hit him over the head with a metal ashtray thereby killing him. The accused was charged and convicted for murder. The accused appealed and raised the defense of provocation.

On appeal, it was decided that the accused’s condition was temporary and not something which was permanent and therefore the accused was denied the defense of provocation. The Newell test was later rejected in Luc Thiet Thuan (1997) (Privy Council) and the judge stated that by looking at the permanent characteristics of the accused the law had taken a wrong turn.

Copyright © 2018 by Dyarne Ward

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