Provocation As A Defence Essay Research Paper

Provocation As A Defence Essay, Research Paper

Development of Defense of Provocation

Question: Critically evaluate the development of common law principles

applicable to the defence of provocation in criminal law from the decision in

Mancini v DPP [1942] AC 1 to Mascantonio v R (1995) 183 CLR 58. Assess the

degree to which the common law has proved inflexible in responding changing

societal needs and expectations. Are there other legal means of achieving

substantive justice.

At the time of the case of Mancini the concept of provocation as a

defence to murder was already a well established one dating back centuries. It

originated from the days when men bore arms and engaged in quarrels of violence

that often resulted in a homicide being committed. For provocation to be an

ample defence to murder it needed to be something which incited immediate anger,

or “passion” and which overcame a person’s self control to such an extent so as

to overpower or swamp his reason. What this something can be has been the

subject of many views through the centuries, and these views have strongly

depended upon the type of person whom the law has regarded as deserving

extenuated consideration when provoked to kill. In the words of Viscount Simon

“the law has to reconcile respect for the sanctity of human life with

recognition of the effect of provocation on human frailty. ” In this regard the

difficult concept of the “reasonable man” or the “ordinary man” has developed

and with it the legal doctrine that provocation must be such as would not only

cause the person accused to behave as he did but as would cause an ordinary man

to so lose control of himself as to act in the same sort of way. It is therefore

interesting to examine how the doctrine of common law in relation to provocation

has responded to changing societal needs and values. It also provides a useful

case study in which the development of common law doctrine can be observed. It

is useful to conduct a case-by-case analysis of the rule of provocation as a

defence to murder in order to more effectively observe the legal evolution that

has taken place.

In the case of Mancini v DPP [1942] AC 1 the appellant had been

convicted for murder after stabbing a man to death in a club. The appellant’s

counsel contended that the trial judge should have directed that the jury was

open to find provocation to reduce the appellant’s conviction to manslaughter.

Lord Simonds provided direction upon what kind of provocation would reduce

murder to manslaughter. He said that the provocation must temporarily deprive

the provoked individual of self-control and in deciding this regard must be had

to the following circumstances: the nature of the act which causes death, the

time which elapsed between the provocation and the act which caused death, the

offender’s conduct during that interval and all other circumstances which

indicate his state of mind. It is here that the well known characteristics of

“an unusually excitable or pugnacious” person are excluded from amounting to

provocation. Lord Simonds also said that “the mode of resentment must bear a

reasonable relationship to the provocation if the offence is to be reduced to

manslaughter.”

The case which was to follow Mancini was Holmes v DPP [1946] AC 588. In

this case a man killed his wife after a confession of unfaithfulness on her

behalf. He was convicted of murder and appealed that the defence of provocation

should have been left open to the jury. In his judgment of the case Viscount

Simon stated that the crux of the case was whether “mere words can ever be

regarded as so provocative to a reasonable man as to reduce to manslaughter

felonious homicide committed upon the speaker in consequence of such verbal

provocation.” “Mere words” however were attributed with having more than one

meaning. There were words which were provocative by insulting or abusive

language, and words that conveyed information of a fact, or an alleged fact. In

regards to verbal abuse Viscount Simon made his opinion clear; “the law expects

a reasonable man to endure abuse without resorting to fatal violence,” and in

regards to the admission of adultery he also expressed his opinion as “a sudden

confession of adultery without more can never constitute provocation of a sort

which might reduce murder to manslaughter.” Though these statements were indeed

firm, Viscount Simon himself recognised the need for flexibility in the common

law in climates of social change, saying “the application of common law

principles in matters such as this must to some extent be controlled by the

evolution of society.” Indeed, the need for change would in fact alter these

common law principles in the years to come.

The flexibility of the common law principles relating to provocation was

examined in Bedder v Director of Public Prose

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