“Being agitated and excited, and alarmed by violence, I lost control over myself, and took life, when my presence of mind had left me, and without thought of what I was doing”
Macdonald, Criminal Law, 5th Edition, p94
Provocation is sometimes described as a “partial defence”, as opposed to, for example, self-defence (a “complete defence”). The difference is that a successful complete defences result in acquittal of the accused (not guilty/not proven). Successfully arguing provocation means that the accused is still convicted (guilty) of a criminal act, but there is a mitigating reason for the act.
Circumstances that amount to provocation may well overlap somewhat with those that amount to self-defence, but the two are separate. If self-defence is in dispute during trial, the jury would be directed to consider it first (which is of benefit to the accused). Only if self-defence is rejected should they look at the evidence again with a view to deciding whether the accused should be convicted of the offence, with the proviso that he/she was acting under provocation.
Provocation is not a special defence, so you do not need to give the Crown advance notice that you are going to argue it at trial.
The practical impact of a successful provocation argument can be very significant when it comes to sentencing. In cases where the accused is charged with assault, it is difficult to say for sure what the sentence might have been if not for the finding of provocation. For example, have a look at this article – no indication appears to have been given as to how the sentence was affected by provocation.
In murder cases, though, the difference is much clearer. Provocation is enough to “reduce” murder to culpable homicide, which does not lead to a mandatory life sentence.
Let’s look at the principles of provocation in law, according to the three main scenarios (that I can think of): provocation by violence, by words and (controversially) by sexual infidelity.
Provocation by violence
Most of us learn in primary school (or, if you’re like me and have two siblings, continue learning well into your twenties) that “But he/she hit me first!” Isn’t Good Enough. So it is with self-defence, which is defined quite restrictively in law. However, it is quite easy to see how being the victim – or anticipating that you are about to be the victim – of violence can provoke somebody into committing violence in turn.
As I have said above, a consideration of provocation by violence will often come about because a plea of self-defence on the part of the accused has failed (perhaps because there was a means of escape available to them).
There are four elements to a successful argument of provocation by violence:
- The accused must either have been attacked physically, or reasonably believed that he/she was immediately going to be attacked. A mistaken belief of attack does not rule out provocation, provided that the accused’s belief was still reasonable in the circumstances (in other words, it is an objective test, rather than a subjective one).
- The accused must have lost their temper and self-control immediately. The more time that passes, it is easier to attribute the accused’s actions to revenge, which is not protected in any way by law.
- The accused must have retaliated immediately (“in hot blood”). Again, the more time that passes, the more time for rational thought and self-control to return, which raises the likelihood that the accused was acting out of a desire for cold-blooded revenge.
- The violence of the reaction must be reasonably proportionate to the violence that the accused faced. Odd as it might seem, even if the accused kills the victim, that does not necessarily mean that the accused’s violence wasn’t reasonably proportionate. That said, a minor assault by the victim is unlikely to entitle an accused to argue that they were provoked into killing them.
Gillon v HMA (2007 JC 24)
Lord Osborne: “As the law currently stands, in relation to provocation taking the form of violence, the criterion of a reasonably proportionate relationship between the conduct amounting to the provocation and the actings of the accused is well established and has been clearly understood over a period of many years. That criterion appears to us to be apt in the context in which it applies.
Violence as provocation can readily be assessed and weighed in comparison to violence in retaliation to provocation. We are unaware of any practical difficulties experienced in the application of this particular criterion within the scope of its operation.”
The “reasonably proportionate” criterion is a matter for the judge or jury, so it’s hard to say definitively what would / wouldn’t count. It’s similar – but ultimately different – to the “no cruel excess” test that’s applied when considering self-defence.
Provocation by verbal abuse
The principles of provocation, when it comes to verbal abuse only, are very similar to those discussed above (in relation to provocation by violence). However, there is one important difference: generally, provocation by words alone is not available when the accused is charged with murder.
Lord Justice General at paragraph 25: “In Scots law, no mere verbal provocation can palliate killing”
(quoted with approval in the more recent case of Donnelly v HMA (2017 HCJAC 78)
Abuse/threats, however, may constitute provocation when the accused immediately reacts by non-fatally assaulting the victim.
So, the factors to consider are:
- The accused must either have been subjected to verbal insults or abuse.
- The accused must have lost their temper and self-control immediately. The more time that passes, it is easier to attribute the accused’s actions to revenge, which is not protected in any way by law.
- The accused must have retaliated immediately (“in hot blood”). Again, the more time that passes, the more time for rational thought and self-control to return, which raises the likelihood that the accused was acting out of a desire for cold-blooded revenge.
- The ordinary person would have acted as the accused did. If the reaction were more extreme than what would be expected of the ordinary person facing that situation, then provocation cannot apply. Again, this is a tricky principle to translate into real life; you would really be at the mercy of the jury on this one. It’s worth bearing in mind that most “ordinary people” don’t end up being charged with violent offences in court.
Provocation by sexual infidelity
Controversially, Scots law allows an accused (including those accused of murder) to argue that he/she was provoked into their criminal act as a result of discovering sexual infidelity by their partner. This principle was authoritatively set out in the aforementioned case of Drury v HMA:
- The appellant and the deceased had been in a relationship that lasted several years. It was disputed whether the relationship had ended in March 1998, or whether it continued until the deceased’s death in September 1998. Both Crown and defence agreed, however, that the relationship was such that sexual fidelity was expected while it was ongoing (i.e. it wasn’t an “open” or “friends-with-benefits” relationship).
- The appellant gave evidence at his trial. His position was that he had gone to the deceased’s house at around midnight. After he knocked on the door, and shouted to the deceased through the letter box, a man ran from the house. The appellant picked up a hammer that was kept near an external coal bunker.
- The appellant followed the man (his position was that he might have been an intruder), and found the deceased standing in the street with him. There was a short conversation between the appellant and the deceased, during which he asked what was going on, and the deceased’s answer was “What do you think?”
- The appellant’s position was that he then lost control, and could not remember what he had done next. There was evidence that he had attacked the appellant with the hammer, killing her. He said that he had loved her and regretted what he had done. He was convicted of her murder.
- Drury’s appeal was successful. The court found that the trial judge’s directions to the jury on provocation were inadequate, and granted the Crown authority for a new prosecution.
- The Lord Justice General (1): “when an accused over-reacts in the way that ordinary men and women may tend to over-react, the law recognises that the accused is weak rather than wicked.”
- (2): “If there is evidence of a relationship entitling the accused to expect sexual fidelity on the part of the deceased, the jury should be directed to consider two matters. First, they should consider whether, at the time when he killed the deceased, the accused had in fact lost his self-control as a result of the preceding provocation…[If] the jury come to the conclusion that he had indeed lost his self-control due to the provocation, then they should ask themselves whether an ordinary man, having been thus provoked, would have been liable to react as he did. The nature and degree of the violence perpetrated by the accused will, of course, be relevant to the jury’s consideration of that issue.”
Over the course of the 20th Century, the criminal courts have gradually extended the potential availability of the provocation defence to various scenarios that broadly relate to the accused’s discovery of sexual infidelity by their partner.
Originally, provocation could only be argued in cases where the accused had actually caught their spouse in flagrante delicto, but nowadays it can extend to a mere confession of infidelity by one cohabiting partner to another (heterosexual or homosexual).
To reiterate the test set out in that second paragraph above:
- There must be the expectation of sexual fidelity on the part of the accused. Greater minds than mine have struggled with this question.
- The accused must have immediately lost their self-control upon discovery of the infidelity. “Discovery” does not need to mean “walking in on your partner in flagrante”. Finding an incriminating text/DM could presumably count, provided the reaction was immediate.
- The accused’s reaction must not have exceeded that of the ordinary person, in response to the provocation. If the ordinary person would not have lost their self-control, then a provocation argument cannot succeed. This part of the test ties in with the “weak rather than wicked” dicta above.
I can see why this category of provocation is controversial. To the ordinary person, it is easy to see how this category can be summarised as “People are allowed to kill their partners if they cheat on them”, which then potentially brings gender politics into play. I’m definitely not qualified to address that particular debate. All I want to do is reiterate that provocation is not a complete defence to murder. Somebody convicted of culpable homicide in these circumstances is still guilty of a terrible crime, and is liable to be imprisoned for an extremely long time. Provocation is an excuse, but it can never be a justification in the way that self-defence is.
Third-party Provocation?
At the time of writing, it is unclear whether an accused can argue that s/he acted under provocation, where the provocation comes from the eventual victim assaulting/insulting a third party.
For example, if a parent witnesses a third party hitting the parent’s child, and the parent then assaults the third party in retaliation, can the parent then argue that provocation should apply if they are charged with assault?
I cannot find any reported cases that deal with this question definitively. It has been suggested, though, that a “close familial relationship” is an absolute requirement for “substantial provocation of the accused” to occur (see Donnelly v HMA [2017 HCJAC 78], for example). For public policy reasons, it seems that the courts are keen to limit the availability of provocation in this respect.
Crime.Scot 