Crime XXXI – Provocation VII

R v James & Karimi (2006) concerns two separate appeals where the defense of provocation was raised. In the former the accused killed his wife after they’d been separated for four months, rather violently because she’d entered into a relationship with another man. The prosecution was willing to accept a verdict of manslaughter based on diminished responsibility supported by psychiatric reports but the accused refused and chose instead to rely on the defense of provocation which is more difficult to satisfy and is reliant on the reasonable man with the exception of the accused’s age as per DPP v Camplin (1978).

In the latter, the accused was an immigrant who was allowed to stay in England with his wife and soon after his arrival his wife formed a new relationship with another man. His wife’s new partner armed with a knife confronted the accused, verbally insulting him as he did so, and the accused a trained former soldier, disarmed him and stabbed him with the knife. The accused was charged and convicted and he appealed on the grounds of provocation.

Both appeals were dismissed. In the former, because the accused relied on the defense of provocation, the test for provocation was, as far as the courts were concerned, still very much that of “if a reasonable man would have acted or reacted in the manner the accused did” and in the latter taunts, jeers, boos, offending and insulting words directed at the accused may not be sufficient to raise the defense of provocation for murder. Interestingly enough in Karimi the accused did not raise the defense of self-defense but that could have been due to the fact that having disarmed the victim the accused took matters into his own hands and stabbed him.

In R v Hill (2008) the accused and the victim, a homosexual man, were friends. They were occasional drinking buddies and on the night of the incident they’d been out drinking after which they returned to the victim’s flat and the accused fell asleep. The accused claimed that he was awakened in the middle of the night by advances made at him and in response he struck the victim who subsequently hit his head on a chair and died as a result. During the trial, it came to light that the cause of death was not a hit or a blow to the head but rather strangulation.

The jury convicted for murder and the accused appealed for a retrial on the grounds that he had not raised the defense of provocation. His appeal was denied and the Court of Appeal in line with the dictum in R v Ahluwalia (1993) decided that the defense should have been raised in the first instance and the appeal for a retrial was denied.

From what we have seen so far, I think we can at the very least form an understanding of what provocation really is. Words and actions are in most cases not sufficient to constitute provocation and in order to raise the defense of provocation the accused must show that there was tangible impact that prompted the accused to act or react in the way and manner he or she did.

Provocation is a defensive mechanism and not an offensive mechanism and as such the accused does not act and raise the defense of provocation but rather reacts to the situation and then relies on the defense of provocation to reduce the severity of the crime. If the accused were to act then the defense of provocation would not be made available to the accused see R v Duffy (1949).

With regards to acts committed out of jealousy and instances of the Othello Syndrome they generally do not constitute provocation see R v Weller (2003) unless it creates a clear mental imbalance see R v Vinagre (1979).

The test in R v Newell (1980) was disapproved and the courts will not look into whether the response was sparked by a permanent characteristic of the accused as per the majority decision in Luc Thiet Thuan (1997) (Privy Council) but would rather use the test in R v Smith (Morgan) (2000) which is in line with the minority decision in Luc Thiet Thuan (1997) (Privy Council) in that the courts would look for evidence, especially medical evidence to determine if the accused suffered from a long standing mental illness or a mental impairment that had caused the defendant to be provoked or act in the way or manner he or she did. If there is no evidence to suggest that there was a mental imbalance that caused the accused to act in the way or manner he or she did than the accused would be convicted for murder.

Copyright © 2018 by Dyarne Ward

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