Provocation: The Difficulty Encountered by the Courts and the Defence's Impact on 'Battered Woman's Syndrome'

• Author: Satnarine Sharma
• Pages: 199-223

199

PROVOCATION

INTRODUCTION

The crime rate, more specifically the murder

rate in the Caribbean, especially in the

islands of Jamaica and Trinidad and Tobago

has shown a steady increase. At the time of

writing this paper, the murder rate in

Trinidad and Tobago is approximately one

to two murders per day. State authorities and

members of society are naturally concerned

about finding effective measures to curb the

increase. This paper proposes to examine

findings from legal decisions by analysing

the more common defences criminal

offenders have put forward to the court to

excuse their crime of murder (specifically

provocation, and to a lesser extent

diminished responsibility-inclusive of

battered woman’s syndrome), and the factual

circumstances surrounding these cases. From

this information, insight can be gained into

the social, psychological and emotional

problems that both victims and offenders

face which will prove instructive in

developing rehabilitation prison programmes

or counselling programmes as may be

needed.

Provocation may be defined simply as a

mitigatory defence to murder, which alleges

a total loss of self-control in response to

another’s provocative conduct sufficient to

convert what would otherwise have been

murder into manslaughter. The defence of

provocation is often rationalised, like duress

and self-defence, as involving a reaction,

which is within striking distance of what

might be expected of reasonable people.

Provocation:

The Difficulty

Encountered by

the Courts and

the Defence’s

Impact on

‘Battered Woman’s

Syndrome’1

Satnarine Sharma

Nine

200

CRIME, DELINQUENCY AND JUSTICE

However, no provocation whatever can render murder acceptable, or even

excusable; but it may reduce the offence to manslaughter. At the heart of the

provocation defence lies the assumption that the excusatory focus should be the

all-too-human and supposedly characteristic tendency to act in a spontaneously

retaliatory fashion, when provocation has led to great fear. The law of provocation

continues to evolve; it is a criminal defence that is fraught with much complexity

and continues to be the subject of much discussion in the legal fraternity.

PROVOCATION AT COMMON LAW

The defence of provocation has its genesis in the common law, which is that

part of the law of England formulated, developed and administered by the common

law courts, based originally on the common customs of the country. The common

law rule was stated by Devlin J. in the case of R v Duffy [1949] 1 All ER 932n. in

what has been described by the Court of Criminal Appeal as a ‘classic direction’.

He remarked:

‘Provocation is some act, or series of acts, done by the dead man to the accused,

which would cause in any reasonable person, and actually causes in the accused,

a sudden and temporary loss of self-control, rendering the accused so subject to

passion as to make him or her for the moment not master of his mind.’

I think it prudent at this point to set out some case law to facilitate a more

comprehensive understanding of the operation of the defence of provocation at

common law; moreover some key elements of this defence can be garnered from

these cases.

1. If a man kills another suddenly, without any, or indeed without a

considerable provocation, malice may be implied and the act amount to

murder: R v Noon 6 Coz 137; R v Welsh 11 Cox 336 but if the provocation

were great, and as such as must have greatly excited him, the killing is

manslaughter only: R v Mawgridge 17 St. Tr. 57.

2. In considering, however, whether the killing upon provocation amounts

to murder or manslaughter, the instrument with which the act was effected

must also be taken into consideration; for if it were effected with a deadly

weapon, the provocation must be great indeed to reduce the offence to

one of manslaughter; if with a weapon or other means not likely to produce

death, a less degree of provocation will be sufficient; in fact, the mode of

resentment must bear a reasonable proportion to the provocation, to reduce

the offence to manslaughter: Mancini v Director of Public Prosecutions 28

Cr.App.R.65. By way of example where a park-keeper, having found a boy

stealing wood, tied him to a horse’s tail, and dragged him along the park,

and the boy died of the injuries he thereby received, this was held to be