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PPRROOVVOOCCAATTIIOONN.. By the end of this unit you will be able to explain:

The elements of the partial defence under s.3 Homicide Act 1957 How the courts have developed the interpretation of the phrase ‘reasonable man’ Why provocation may be a partial defence to the crime of murder.

You will also be able to evaluate:

The development of the objective test The current proposals for reform from the Law Commission and the changes under the Coroners

and Justice Act 2009

HHOOMMEEWWOORRKK:: During this unit, you will be set the following. In completing homework, you will be expected to do your own research and supplement your own notes. This is essential to show understanding. 1. Complete the assessed essay below to show understanding of the topic.

Optional Stretch and challenge: Consider the particular problem of Battered wives under the new law. How far do the reforms under the Coroners and Justice Act 2009 provide these women with a more appropriate partial defence in the criminal law?

EENNDD OOFF UUNNIITT AASSSSEESSSSMMEENNTT:: As with AS, you will sit a DRAG test but not until we have looked at voluntary and involuntary manslaughter as well. Remember, you will have the choice to answer 10 out of thirty questions, reflecting your understanding and knowledge of the subject. You will also plan and complete the following section A essay question for homework:

‘The recent reforms to the law on provocation have created a more just approach to this area of the law. The old law was outdated and inappropriate’ Consider the truth of the above statement

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PPRROOVVOOCCAATTIIOONN

Remember, provocation is a . This, along with diminished responsibility, form manslaughter, where D has both the MR and AR of murder but.... Provocation did exist as a common law offence prior to the Homicide Act 1957, where it was seen as a ‘concession to human frailty’. In fact, it has existed for centuries in one form or another, and seems to date back to the notion of honour. For many years it was a defence to murder if a man had killed: 1. 2. 3. However, it was quite narrowly defined: Bedder v DPP (1954) Was this the right instruction? How could you criticise this decision?

Facts: Ratio:

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DDEEFFIINNIITTIIOONN OOFF PPRROOVVOOCCAATTIIOONN UUNNDDEERR SS..33 HHOOMMIICCIIDDEE AACCTT 11995577

Can you spot any issues with the offence so far?

BURDEN AND STANDARD OF PROOF

As with DR, it is up to the judge to decide whether there’s enough evidence to put the defence to the jury, but it is then up to the jury to decide whether, on the facts presented, D lost his at the time of the killing. So, it is a question of If D raises the issue of provocation, then it is up to P to prove beyond reasonable doubt that the case is not one of provocation. However, the judge may put the issue to the jury, even if D does not raise the issue. The question that should be put to the jury is as follows confirmed by HL in Acott: 1. Whether as a matter of fact, D was provoked to lose his self-control; and 2. Would a reasonable person with similar characteristics have acted the same way in the same circumstances? However, the judge must be careful if he decides not to put provocation in front of the jury, as this could be a ‘material misdirection’ and lead to a successful appeal by D, as with Baille (see later!)

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

Element Two:

Element One:

Element Three:

FACTS:

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EELLEEMMEENNTT OONNEE::

WWHHAATT KKIINNDD OOFF ‘‘TTHHIINNGGSS SSAAIIDD OORR DDOONNEE’’?? Well, the courts seem to have interpreted this very broadly:

It doesn’t need to be an unlawful act (e.g. or ). It can be things done or things said. It does not need to be aimed at D. It may even be self-induced.

R v Davies 1975 R v Pearson 1992 R v Baille (1995) So, what do we mean by ‘things done’? Listen to the facts of R v Doughty 1986. Do you agree with the courts in their decision? Why/why not?

Facts: Ratio:

Facts: Ratio:

Facts: Ratio:

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WHAT IF YOU WERE THE ONE WHO THREW THE FIRST PUNCH?

Is there such a thing as self-induced provocation? Who started the fight? Can you then argue provocation? Well, the case of R v Johnson 1975, would seem to say yes. Here D started the argument and made threats to V and his female friend. D had a knife, and V a glass. D claimed that he was provoked by the fear of being glassed. Should the judge have allowed evidence of provocation to the jury? BUT remember that there must be some words or conduct… even if the savagery of the act makes it seem like there must have been some provocation R v Acott 1997 Facts: Ratio:

EEVVAALLUUAATTEE

For each of the cases, explain whether or not you think it should be a justifiable case of provocation and why.

Ignore the final column for now!

Case Justifiable? Reason New law? Davies

Pearson

Baillie

Doughty

Johnson

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EELLEEMMEENNTT TTWWOO::

LLOOSSSS OOFF SSEELLFF--CCOONNTTRROOLL

Firstly, this generally means a complete loss of self-control. In order to judge whether or not this loss has occurred, the courts have focused on the timing... how close were the provocation and the reaction?

Well, you should know this… the rule actually comes from a case which existed before the Homicide Act. However, it is still good law and has been confirmed in many subsequent cases. R v Duffy 1949

So, what do we mean by “sudden and temporary”? Well, it implies that there must be a close temporal link between the provocation and the action. The problem comes in those cases where there is a ‘ ‘ period.

The longer the gap, the more likely that...

R v Cocker 1989 Revenge is not enough R v Ibrams & Gregory 1981

Facts: Ratio:

Facts: Ratio:

Facts: Ratio:

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Do you think that revenge should be enough? Is the Court of Appeal just drawing an arbitrary line? Battered Wives Yup, they’re back! The argument by these women’s lawyers was that they had developed ‘learned helplessness’ and thus were on a slow burn… the courts really can’t seem to make their mind up as to whether they should fall under provocation, or under diminished responsibility. R v Ahluwalia 1992, R v Thornton No 2 1996, R v Duffy 1949 Straight forward huh? Well… take a look at this one… R v Humphreys 1995

AO2: compare the outcome of Ahluwalia and Thornton to the following cases. What was the legal difference? JOSEPH MCGRAIL In 1991, Joseph McGrail was tried for the murder of his wife. He pleaded provocation on the basis that his wife was an alcoholic and swore at him. He killed her by repeatedly kicking her in the stomach while she was drunk. The judge expressed his sympathy with Mr McGrail, saying: "This lady would have tried the patience of a saint". He was given a two-year suspended sentence and walked free.

LES HUMES Les Humes stabbed his wife Madeleine 12 times in 15 minutes in front of her children after she confessed to an affair with her karate instructor. In 1992, the court heard how their teenage daughter tried to seize the knife from Mr Humes as he repeatedly stabbed her mother. Mr Humes, who said in court he "just saw this red mist", was jailed for seven years after the Crown Prosecution Service accepted an admission of manslaughter and dropped murder charges.

What argument could you make for the inclusion of the battered spouse in provocation?

Facts: Ratio:

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EELLEEMMEENNTT TTHHRREEEE::

RREEAASSOONNAABBLLEE MMAANN

Let me be honest, this is the trickiest part of the whole thing, and is a little like the law on oblique intent. You need to know the current law for AO1. However, for AO2 [in essay questions], you will need to know how the law has developed... and evaluate the various decisions of the courts. The courts, in trying to define this are trying to limit the scope of the defence.

Ready? Ok, well let’s start with a little brainstorm. What characteristics of D do you think should be applied to the ‘reasonable man’? Think back to Bedder v DPP! DPP v Camplin [aka R v Camplin] 1978 HL The view of Camplin was disapproved for a while, but with the case of A-G for Jersey v Holley, seem to have returned to this. [These cases should seem familiar from precedent…!] Read the enclosed law report, and answer the following questions: 1. What were the facts of the case? 2. What was the provocation alleged? 3. What characteristics did D want included in the ‘reasonable man’?

RREEAASSOONNAABBLLEE CCHHAARRAACCTTEERRIISSTTIICCSS

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4. What issue of public policy limited the defence? 5. What does Devlin say that the ‘reasonable man’ includes? 6. Do you agree with this? Is it clear? 7. Should these be temporary or permanent characteristics?

R v Dryden 1995

Morhall 1996 added that the jury should look at the whole of the factual situation in assessing the gravity of the provocation and that there is no rule to prevent D relying on self-induced condition as a characteristic of the reasonable person.

Can you be a reasonable glue sniffer?

Facts: Ratio:

Facts:

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R v Luc Thiet Than 1997 PC Is this binding? This is contradicted by R v Smith (Morgan) 2000 HL

R v Weller 2004 - Is being severely jealous and possessiveness a relevant characteristic? Ok, confused yet? To summarise it really comes down to the ‘reasonable man’ section of the test. How many characteristics should he have? Slowly, he seems to have taken on an awful lot of subjective characteristics! These include, depression, drug addiction etc.

Facts:

Ratio:

Facts: Ratio:

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So, this brings us up to date… A-G for Jersey v Holley 2005 PC 1. What was the problem with the law on provocation before this? 2.Where did the case take place and in which court was it heard? 3. Briefly, what are the facts of the case? 4. What should the reasonable man be called and why? 5. Can a defendant who cannot be described as an ‘ordinary man’ rely on the defence? 6. Do they approve of Smith (Morgan)? 7. Is intoxication one of the characteristics, which can be taken into account in assessing the reasonable man? 8. What is the Lords’ view on Battered wives? 9. Do they find the current law satisfactory?

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Subsequently, the Court of Appeal had a choice to make. Do they follow precedent, and opt for the House of Lords or do they follow precedent and follow this decision?

Well, they chose by a majority of 6:3 in R v James and Karimi [2005] to follow the Privy Council instead. One of their arguments for doing so was that most of the panel was made up of members of the House of Lords, and clearly they were expressing their clear views and intentions.

R v Mohammed 2005

Facts:

Ratio: So, in summary…

The only characteristics, which may be applied to the amount of control you are expected to exercise, are those of the ordinary person of your age and sex.

However other characteristics may be taken into account in assessing the gravity of the provocation.

Task: Look at the two situations below:

Which might be more successful at advancing a partial defence of provocation? Why?

Bob hits Jane every night and they have been married for 10 years. One day he comes home and she has burnt the food. He says that she is useless cook, she picks up a knife and kills him

Bob hits Jane every night and

they have been married for 10

years.

One day he comes home and

tells her that she is a useless

wife and only fun as a punching

bag. She picks up a knife and

kills him.

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RREEVVIISSIIOONN QQUUEESSTTIIOONNSS.. 1. How has Smith been criticised by Holley [as confirmed by James & Karimari] 2. Why are nagging and marital infidelity sufficient to satisfy the defence of provocation? 3. Do you think that men react differently from women in certain situations? Why? 4. What are the key elements of the defence of provocation? 5. Identify the odd one out with regard to provoking conditions. Why?

Threats directed at D Threats not directed at D Storm destroying a field The continuous crying of a baby

6. How does R v Duffy define issues of self-control? What problems are there with the test? 7. Why was Bedder such a harsh decision? 8. Who decides whether there is enough evidence for provocation? 9. Why were DD convictions for murder in Ibrams & Gregory upheld? 10. What is cumulative provocation? Which case does it stem from? 11.What is the test for provocation?

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PPRROOBBLLEEMMSS...... PPRROOBBLLEEMMSS...... PPRROOBBLLEEMMSS...... Karl and Christine are in a violent relationship. Karl has been having a relationship with Christine’s sister, Pam, for the past 3 years. Karl and Christine are drinking and Karl tells her about the affair and says he is leaving her. Christine goes to the kitchen and picks up a knife. She stabs Karl in the chest and he dies from his injuries. Christine drives to her sister’s house and attacks her. Pam also dies. Can Christine rely on a defence of provocation? Brigid who is an immature attention seeking 16 year old tries to commit suicide by slashing her wrists with a knife, but the cuts are superficial. Carol teases Brigid about this and her inability to do anything properly. Brigid rushes at Carol stabbing her with the knife and killing her. Can Brigid rely on a defence of provocation?

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EEVVAALLUUAATTIIOONN.. IS Work: 1. Go to the Law Commission’s website, [http://www.lawcom.gov.uk/murder.htm] and read the summary of the proposals for change to the law on provocation. You will have to look through the proposals to work this out! What will happen to the law on provocation if the law commission proposals are implemented? How do they differ from the reforms in the Coroners and Justice Act 2009?

CRITICISMS OF THE LAW. Under each of the following headings, add your own notes, explaining how this is criticising

the current law. 1. It is an ‘excuse’ for murder. 2. Its scope is too broad. 3. Blames V for their own death 4. Sexual discrimination 5. Its scope is too narrow. 6. It contradicts itself as a defence. 7. What is a reasonable man? 8. The American alternative (Extreme Emotional Disturbance EED) is a much more inclusive

alternative.

Now, write one paragraph in favour of the current law on provocation. Why should it be retained?

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TTHHEE AACCTTUUAALL RREEFFOORRMMSS::

Well, if those are the ideas, this is what is going to happen! This is from the Coroners and Criminal Justice Act 2009, which is now law (as of November last year)

54 Partial defence to murder: loss of control (1) Where a person (“D”) kills or is a party to the killing of another (“V”), D is not to be convicted of murder if—

(a) D’s acts and omissions in doing or being a party to the killing resulted from D’s loss of self-control,

(b) the loss of self-control had a qualifying trigger, and

(c) a person of D’s sex and age, with a normal degree of tolerance and selfrestraint and in the circumstances of D, might have reacted in the same or in a similar way to D.

(2) For the purposes of subsection (1)(a), it does not matter whether or not the loss of control was sudden. (3) In subsection (1)(c) the reference to “the circumstances of D” is a reference to all of D’s circumstances other than those whose only relevance to D’s conduct is that they bear on D’s general capacity for tolerance or self-restraint. (4) Subsection (1) does not apply if, in doing or being a party to the killing, D acted in a considered desire for revenge. (5) On a charge of murder, if sufficient evidence is adduced to raise an issue with respect to the defence under subsection (1), the jury must assume that the defence is satisfied unless the prosecution proves beyond reasonable doubt that it is not. (6) For the purposes of subsection (5), sufficient evidence is adduced to raise an issue with respect to the defence if evidence is adduced on which, in the opinion of the trial judge, a jury, properly directed, could conclude that the defence might apply. (7) A person who, but for this section, would be liable to be convicted of murder is liable instead to be convicted of manslaughter.

(8) The fact that one party to a killing is by virtue of this section not liable to be convicted of murder does not affect the question whether the killing amounted to murder in the case of any other party to it.

55 Meaning of “qualifying trigger” (1) This section applies for the purposes of section 41. (2) A loss of self-control had a qualifying trigger if subsection (3), (4) or (5) applies. (3) This subsection applies if D’s loss of self-control was attributable to D’s fear of serious violence from V against D or another identified person. (4) This subsection applies if D’s loss of self-control was attributable to a thing or things done or said (or both) which—

(a) constituted circumstances of an extremely grave character, and

(b) caused D to have a justifiable sense of being seriously wronged. (5) This subsection applies if D’s loss of self-control was attributable to a combination of the matters mentioned in subsections (3) and (4). (6) In determining whether a loss of self-control had a qualifying trigger—

(a) D’s fear of serious violence is to be disregarded to the extent that it was caused by a thing which D incited to be done or said for the purpose of providing an excuse to use violence; (b) a sense of being seriously wronged by a thing done or said is not justified if D incited the thing to be done or said for the purpose of providing an excuse to use violence; (c) the fact that a thing done or said constituted

sexual infidelity is to be disregarded

Identify four major changes to the current law under this Act Who was the Act targeted at? Has it successfully dealt with this issue? Can you spot any remaining problems with the Act?

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HOUSE OF LORDS R v CAMPLIN [1978] AC 705*

LORD DIPLOCK: My Lords, for the purpose of answering the question of law upon which this appeal will turn only a brief account is needed of the facts that have given rise to it. The respondent, Camplin, who was 15 years of age, killed a middle-aged Pakistani, Mohammed Lal Khan, by splitting his skull with a chapati pan, a heavy kitchen utensil like a rimless frying pan. At the time, the two of them were alone together in Khan’s flat. At Camplin’s trial for murder before Boreham J. his only defence was that of provocation so as to reduce the offence to manslaughter. According to the story that he told in the witness box but which differed materially from that which he had told to the police, Khan had buggered him in spite of his resistance and had then laughed at him. Whereupon Camplin had lost his self-control and attacked Khan fatally with the chapati pan.

In his address to the jury on the defence of provocation Mr. Baker, who was counsel for Camplin, had suggested to them that when they addressed their minds to the question whether the provocation relied on was enough to make a reasonable man do as Camplin had done, what they ought to consider was not the reaction of a reasonable adult but the reaction of a reasonable boy of Camplin’s age. The judge thought that this was wrong in law …

The point of law of general public importance involved in the case has been certified as being:

‘Whether on the prosecution for murder of a boy of 15, where the issue of provocation arises, the jury should be directed to consider the question under section 3 of the Homicide Act 1957 whether the provocation was enough to make a reasonable man do as he did by reference to a ‘reasonable adult’ or by reference to a ‘reasonable boy of 15....

The public policy that underlay the adoption of the ‘reasonable man’ test in the common law doctrine of provocation was to reduce the incidence of fatal violence by preventing a person relying upon his own exceptional pugnacity or excitability as an excuse for loss of self-control. …

Although it is… for the jury to apply the ‘reasonable man’ test, it still remains for the judge to direct them what… is the meaning of this… It is for the [jury] and no one else to decide what weight, if any, ought to be given to them.

…[F]or the purposes of the law of provocation the ‘reasonable man’ has never been confined to the adult male. It means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.

… To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not …

That he was only 15 years of age at the time of the killing is the relevant characteristic of the accused in the instant case. It is a characteristic which may have its effects on temperament as well as physique … [T]o require old heads upon young shoulders is inconsistent with the law’s compassion to human infirmity … The distinction as to the purposes for which it is legitimate to take the age of the accused into account … is to be decided by a jury drawing on their experience of how ordinary human beings behave in real life.

In my opinion a proper direction to a jury on the question left to their exclusive determination by section 3 of the Act of 1957 would be on the following lines. The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused’s characteristics as they think would

* adapted from text of elawstudent.com

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affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did.

…

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PRIVY COUNCIL ATTORNEY GENERAL FOR JERSEY v HOLLEY [2005] UKPC 23* FACTS The appellant, a chronic alcoholic, admitted killing his long-standing girlfriend, who was also an alcoholic. They had both been drinking that day. There had been a long-standing history of heavy drinking, mutual violence and rows in the four years leading to her death. His girlfriend entered the flat and, according to the appellant, told him that she had just had sex with another man. He picked up an axe, which he had used that day to chop wood, intending to leave the flat and chop some more wood. She then said to him: ‘You haven’t got the guts.’ He then lifted the axe and struck her seven or eight times. LORD NICHOLLS OF BIRKENHEAD: 1. This appeal from the Court of Appeal of Jersey calls for examination of the law relating to provocation as a defence or, more precisely, as a partial defence to a charge of murder. Jersey law on this subject is the same as English law. In July 2000 the House of Lords considered the ingredients of this defence in the Morgan Smith. The decision of the House in that case is in direct conflict with the decision of their Lordships’ Board in Luc Thiet Thuan v The Queen [1997] AC 131. And the reasoning of the majority in the Morgan Smith case is not easy to reconcile with the reasoning of the House of Lords in R v Camplin [1978] AC 705 or R v Morhall [1996] AC. 2. This appeal, being heard by an enlarged Board of nine members is concerned to resolve this conflict and clarify definitively the present state of English law, and hence Jersey law, on this important subject. … The legal issue … 4. By section 3 of the Homicide Act 1957 Parliament altered some aspects of this common law defence. Jersey law has a corresponding provision in article 4 of the Homicide (Jersey) Law 1986. … 5. Thus, in line with the common law, section 3 envisages that the defence of provocation has two ingredients. The first ingredient, known as the subjective or factual ingredient, is that the defendant was provoked into losing his self-control. … Suffice to say, in deciding whether this ingredient exists in a particular case all evidence which is probative is admissible. This includes evidence of any mental or other abnormality making it more or less likely that the defendant lost his self-control. 6. The second ingredient, often called the objective or evaluative ingredient, raises, in the language of the statute, ‘the question whether the provocation was enough to make a reasonable man do as he did ... [taking] into account everything both done and said according to the effect ... it would have on a reasonable man’. Broken down, this objective ingredient has two elements. The first element calls for an assessment of the gravity of the provocation [was the provocation grave enough?]. The second element calls for application of an external standard of self-control: ‘whether the provocation was enough to make a reasonable man do as he did’ [i.e. lose his self-control]. 7. The statutory reference to a ‘reasonable man’ in this context is, by common accord, not the best choice of words. It is difficult to conceive of circumstances where it would be ‘reasonable’ for a person to respond to a taunt by killing his tormentor. Rather, the phrase is intended to refer to an ordinary person, that is, a person of ordinary self-control. … The objective standard of self-control is the standard set by the common law and, since 1957, by the statutory reference to a ‘reasonable man’. It is of general application. Inherent in the use of this prescribed standard as a uniform standard applicable to all defendants is the possibility that an individual defendant may be temperamentally unable to achieve this standard [in which case the defence will not be available to him]. 13. Taking into account the age and sex of a defendant, as mentioned in Camplin, is not an exception to this uniform approach. The powers of self-control possessed by ordinary people vary according to their age and, more doubtfully, their sex. These features are to be contrasted with abnormalities, that is, features not * from elawstudent.com

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found in a person having ordinary powers of self-control. The former are relevant when identifying and applying the objective standard of self-control, the latter are not. 14. …. The statutory reasonable man has the power of self-control to be expected of an ordinary person of like sex and age. In other respects, that is, in respects other than power of self-control, the reasonable man shares such of the defendant’s characteristics as the jury think would affect the gravity of the provocation to the defendant. This direction, approved by the other members of the House, was clearly intended to be a model direction, of general application in cases of provocation. … The two views 17. Against this background their Lordships turn to consider the point where the substantial difference in judicial views has emerged. Exceptional excitability or pugnacity is one thing. But what if the defendant is suffering from serious mental abnormality, as in the Morgan Smith case where the defendant suffered from severe clinical depression? Is he, for the purposes of the defence of provocation, to be judged by the standard of a person having ordinary powers of self-control? 18. The view of the minority in the case of Morgan Smith is that he is. The standard is a constant, objective standard in all cases ... 19. This view accords with the approach applied by their Lordships’ Board in Luc Thiet Thuan v The Queen [1997] AC 131 … 20. The majority view expressed in Morgan Smith rejects this approach. According to this view, the standard of self-control required by the common law and by the statute is not the constant standard of a person having and exercising ordinary self-control. The required standard is more flexible. The jury should apply the standard of control to be expected of the particular individual. The jury must ask themselves whether the defendant ‘exercised the degree of self-control to be expected of someone in his situation’ - Lord Slynn of Hadley … 22. … [T]heir Lordships consider there is one compelling, overriding reason why this view cannot be regarded as an accurate statement of English law. It is this. The law of homicide is a highly sensitive and highly controversial area of the criminal law. In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. In these circumstances it is not open to judges now to change (‘develop’) the common law and thereby depart from the law as declared by Parliament. However much the contrary is asserted, the majority view does represent a departure from the law as declared in section 3 of the Homicide Act 1957. It involves a significant relaxation of the uniform, objective standard adopted by Parliament. Under the statute the sufficiency of the provocation (‘whether the provocation was enough to make a reasonable man do as [the defendant] did’) is to be judged by one standard, not a standard which varies from defendant to defendant. Whether the provocative act or words and the defendant’s response met the ‘ordinary person’ standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self-control was sufficiently excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant’s conduct is ‘excusable’. 23. On this short ground their Lordships, respectfully but firmly, consider the majority view expressed in the Morgan Smith case is erroneous. Points arising 24. Their Lordships mention some ancillary points. The first is relevant to the facts in the present case. It concerns application of the principles discussed above in circumstances where the defendant acted under the influence of alcohol or drugs and, therefore, at a time when his level of self-control may have been reduced. If the defendant was taunted on account of his intoxication, that may be a relevant matter for

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the jury to take into account when assessing the gravity of the taunt to the defendant. But the defendant’s intoxicated state is not a matter to be taken into account by the jury when considering whether the defendant exercised ordinary self-control. The position is the same, so far as provocation is concerned, if the defendant’s addiction to alcohol has reached the stage that he is suffering from the disease of alcoholism. 25. The second point their Lordships wish to mention concerns … women who are more prone to lose their self-control because they are suffering from postnatal depression, or ‘battered woman syndrome’, or a personality disorder … [T]he evidence of the woman’s condition may be relevant on two issues: whether she lost her self-control, and the gravity of the provocation for her. The jury will then decide whether in their opinion, having regard to the actual provocation and their view of its gravity for the defendant, a woman of her age having ordinary power of self-control might have done what the defendant did. More importantly, in each of these three cases the defendant will in principle have available to her the defence of diminished responsibility. The potential availability of this defence in these cases underlines the importance of not viewing the defence of provocation in isolation from the defence of diminished responsibility. These two defences must be read together to obtain an overall, balanced view of the law in this field. … 27. The final point is this. In expressing their conclusion above their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts… Their Lordships share this view. But the law on provocation cannot be reformulated in isolation from a review of the law of homicide as a whole.