Provocation and Pluralism
| Published date | 01 November 2001 |
| Date | 01 November 2001 |
| Author | Timothy Macklem,John Gardner |
| DOI | http://doi.org/10.1111/1468-2230.00354 |
THE
MODERN LAW REVIEW
Volume 64 No 6November 2001
Provocation and Pluralism
Timothy Macklem and John Gardner*
What is the best way to reflect human diversity in the structure of the provocation
defence, and similar excusatory defences in the criminal law? The House of Lords
recently concluded that the right way is to allow the jury to personalise and
thereby qualify the apparently uniform `reasonable person'standard mentioned in
section 3 of the Homicide Act 1957. In this paper we argue that this is not the
right way at all. We argue that the reasonable person standard, unqualified,
already accommodates the only variations between people that the law should
want to accommodate in an excusatory defence. To defend this view we revive the
common law’s tripartite analysis of the `objective'(or impersonal) issues in the
provocation defence: first, was there an action capable of constituting a
provocation? second, how provocative was it? and third, how much self-control
should have been exhibited in the face of it? We show that these questions each
have a built-in sensitivity to certain variations between different defendants’
situations, but that this does not detract from their objectivity (or impersonality).
We argue that no more sensitivity is needed in the name of human diversity, and
what is more that no more sensitivity is desirable.
Until the recent House of Lords decision in RvSmith,1English criminal law
harboured two competing views of the moral structure of its provocation defence.
On one view, favoured in a line of Court of Appeal decisions beginning in the early
1990s,2the provocation defence is conceived as a close relative, morally speaking,
of the diminished responsibility defence that appears next to it in the Homicide Act
1957. To be provoked to a murderous rage is to suffer a temporary diminution of
one’s responsibility, a moment of madness. On the rival view endorsed by the
Privy Council in 1996,3the provocation defence is rather to be contrasted with the
diminished responsibility defence. The diminished responsibility defence created
by section 2 of the Act exists to make allowances for conditions of pathological
unreasonableness. By contrast, the provocation defence referred to in section 3 of
the Act is a defence available only in respect of reasonable losses of temper. It is
reserved for cases in which (in the words of the section) ‘the provocation was
enough to make a reasonable man do as [the defendant] did.’
ßThe Modern Law Review Limited 2001 (MLR 64:6, November). Published by Blackwell Publishers,
108 Cowley Road, Oxford OX4 1JF and 350 Main Street, Malden, MA 02148, USA. 815
* King’s College London and the University of Oxford respectively. Thanks to the MLR’s two anonymous
referees for their many insightful comments.
2RvAhluwalia [1992] 4 All ER 889, RvDryden [1995] 4 All ER 987, RvHumphreys [1995] 4 All
3Luc Thiet Thuan vR[1997] AC 131.
Rather than decide cleanly between these two views, the House of Lords in
Smith helped itself to one of its favourite pseudo-solutions: When in doubt, pass
the buck to the jury.4The moral structure of the provocation defence, said the three
Law Lords in the majority, was itself a matter for the jury to determine under the
1957 Act. Deciding which allowances to make to which angry defendants is not the
business of the trial judge, and nor, accordingly, is it the business of the House of
Lords. This self-denying ordinance on the part of the majority was not really as
self-denying as it looked, however, for their Lordships gave as their main reason
for passing the buck to the jury the need for the defence to be interpreted with
sufficient sensitivity to differences between individual defendants. They rejected
the view of the Privy Council as being too restrictive on this front, and (in effect)
preferred the line of Court of Appeal authorities. The standard of ‘reasonableness’
in the provocation defence is not to be taken literally, said the House of Lords, for
taking it literally would mean holding everyone to a uniform standard, rather than
allowing the standard to be tailored, as the jury would naturally tailor it, to suit the
special (sympathetic) features of each defendant and his or her predicament.5
We have criticised the decision in Smith in some detail, and on various grounds,
elsewhere.6Our aim here is not to reiterate the same criticisms. Rather, our concern
is with a philosophical problem that formed the backdrop to the decision in Smith.
For although Smith was nominally a case about the adaptability of the provocation
defence in the face of certain mental illnesses and personality disorders, there
lurked behind it a broader set of worries about the suitability of the provocation
defence, as traditionally understood, to today’s cosmopolitan social conditions. It is
one thing to insist on the uniform standard of the reasonable person when it can
safely be assumed that people in the same physical space share the same social and
cultural space. But an increasingly mobile populace creates increasingly
fragmented social and cultural space, with a corresponding fragmentation of the
standards that are expected of people and regarded as proper. How can the criminal
law continue to uphold a uniform standard of character in this more cosmopolitan
environment? Specifically, is there any longer a defensible role for a standardised
‘reasonable person’, the quality of whose temper is a suitable measure for all of us?
Once this cosmopolitan worry takes hold in respect of cultural difference, it readily
extends itself to the many other dimensions in which people differ as well.
Supposed differences of temperament as between men and women, as between the
gay and the straight, as between the educated and the uneducated, etc, also become
sources of disquiet. It is not long before one is worrying about the potential
unfairness of ignoring any personal idiosyncrasy that may have been a factor in
explaining the defendant’s reactions.7Against this backdrop, one can sympathise
with the anxiety of the House of Lords that the Privy Council’s uncompromising
reaffirmation of the ‘reasonable person’ standard was not only lacking in
compassion towards those suffering from some mental illnesses and personality
disorders – the narrow legal issue at stake – but was also insufficiently astute, more
broadly, to the moral consequences of human diversity.
4 For similar acts of buck-passing by the House in the recent history of criminal law, see RvReid
5 cf the US Model Penal Code §210.3 and accompanying comment 5(a) by the drafters: ‘In the end, the
question is whether the actor’s self-control can be understood in terms that arouse sympathy in the
ordinary citizen.’
6 In our article ‘Compassion without Respect? Nine Fallacies in RvSmith’ [2001] Crim LR 623.
7 To see how easily one may slide from worrying about cultural differences between people to worrying
about all differences between them, see the classic discussion in Andrew Ashworth, ‘The Doctrine of
Provocation’ (1976) 35 Cambridge LJ 292 at 300.
The Modern Law Review [Vol. 64
816 ßThe Modern Law Review Limited 2001
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