What Future for Voluntary Manslaughter?
| Author | Catherine Elliott |
| DOI | 10.1350/jcla.68.3.253.34453 |
| Published date | 01 June 2004 |
| Date | 01 June 2004 |
| Subject Matter | Article |
What Future for Voluntary
Manslaughter?
Catherine Elliott*
Abstract
This article examines the Law Commission’s Consultation Paper,
Partial Defences to Murder, which was published in June 2003. There are
fundamental problems with the defence of provocation. The author sug-
gests that this partial defence should therefore be abolished and replaced
by a new partial defence of self-preservation. This could provide a defence
where the offender, or another person with whom he or she is closely
associated, has been repeatedly subjected to serious violence or torment-
ing behaviour. This conduct must have caused the offender to be in a state
of severe emotional disturbance at the time of the killing.
In June 2003 the Home Secretary asked the Law Commission to review
the partial defences to murder of diminished responsibility and provoca-
tion, with particular regard to their impact in the context of domestic
violence. The Commission was requested to look at whether the partial
defences should continue to exist in their current form, or whether they
should be subsumed within a single partial defence. It was also required
to consider whether there should be a new partial defence to murder
where a defendant used excessive force in self-defence.
The Law Commission was anxious to respond quickly to the Govern-
ment’s request so that it could influence the shape of planned legislation
on domestic violence. It therefore published its Consultation Paper,
Partial Defences to Murder1 in November 2003. Because it wanted to
respond in haste, it has not followed its usual practice of setting out
provisional proposals, but instead identifies and considers various op-
tions for reform. In the absence of detailed provisional proposals, it is still
possible to discern the direction in which the Law Commission appears
to be moving. It seems to favour leaving diminished responsibility in its
current form, narrowing the defence of provocation and creating a new
partial defence of self-preservation. In the light of the strong criticisms of
the provocation defence, which the Law Commission itself highlights in
its Consultation Paper, there are actually good grounds for going a step
further than the Law Commission currently intends, and abolishing the
defence of provocation altogether.
The problem with provocation
The Law Commission considers that the law on provocation is ‘pro-
foundly unsatisfactory’ and identifies a range of serious problems with
the defence. These include:
● the defence lacks a moral foundation;
● the meaning of provocation;
* Senior Lecturer, Kingston University.
1 Law Com. Consultation Paper No. 173, 31 October 2003.
253
The Journal of Criminal Law
● blame is placed on the victim
● revenge killings fall within the defence; and
● the objective test.
Each of these important criticisms will now be examined in turn.
No moral foundation
The Law Commission identifies two justifications that have in the past
been put forward for the defence of provocation.2 First, the deceased
contributed to the killing so it is harsh to call the offence murder.
Secondly, by reason of the provocation the defendant was not in a
position to exercise his or her full mental faculties.3 Neither of these
justifications are persuasive. As regards the first, the defence of provoca-
tion is now so widely defined that the provocation need not itself be
blameworthy. As regards the second, a range of emotions can affect a
person’s ability to exercise his or her mental faculties, and there is no
moral reason why anger should be singled out for preferential treatment
by the criminal law. The Law Commission highlights this basic flaw in
the defence:
The defence of provocation elevates the emotion of sudden anger above
emotions of fear, despair, compassion and empathy . . . It is questionable
whether, in moral terms, a killing is necessarily less culpable when per-
formed in anger as a result of provocation. Indeed there is an argument that
it is morally unsustainable for anger and sudden loss of self-control to
found a defence.4
This is a fundamental criticism of the defence: it has no moral founda-
tion. Anger does not provide any moral justification or excuse for a
killing. Why should a bad-tempered man be entitled to a verdict of
manslaughter where a good-tempered one would be convicted of mur-
der?5 Why should a person have a partial defence to murder when they
kill out of anger, but someone who kills with a more creditable emotion,
such as compassion, have no defence?
The meaning of provocation
Under the common law, judges used to rule as a matter of law on the
question of what could and could not amount to provocation. The
relevant conduct had to be inherently objectionable. Under s. 3 of the
Homicide Act 1957, there is no limit as to what conduct is capable of
provoking a defendant to kill. As a result, the label ‘provocation’ has
become a misnomer. The word ‘provoked’ in s. 3 has come to be
interpreted as simply meaning ‘caused’.6 Today, even legitimate and
2 Law Com. Consultation Paper No. 173, para. 12.11.
3 See S. Yeo, Partial Excuses to Murder (Gaunt: 1991) 19–20.
4 Law Com. Consultation Paper No. 173, paras 4.163–4.164.
5 See Avory J, in R v Lesbini [1914] 3 KB 1116 at 1118.
6 Law Com. Consultation Paper No. 173, para. 4.8. The Judicial Studies Board
specimen direction to the jury (April 2003) as to the ‘special meaning’ of
provocation in this defence is: ‘A person is provoked if he is caused suddenly and
temporarily to lose his self-control by things that have been [said and/or done] by
[X and/or others]’.
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What Future for Voluntary Manslaughter?
innocent conduct, such as a baby crying7 or denying that one has taken
another’s tools,8 can be treated as the provocation. This removes a
possible justification for allowing the defence.
Blaming the victim
The defence encourages a culture of blaming murder victims for their
own deaths. Where the issue of provocation is raised, a trial risks
focusing on the deceased’s behaviour rather than the defendant’s. Inevi-
tably, the deceased is not able to answer these accusations and the whole
process can be extremely distressing to the deceased’s family and
friends.
This is particularly insensitive and inappropriate in modern society,
where the relevant provocation is the victim’s purported sexual in-
fidelity. The defence has traditionally been available when a husband
has discovered his wife committing adultery.9 But by the 20th century,
with effective divorce laws, the courts regarded this rule as an anach-
ronism and were not prepared to extend it to engaged or...
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