Provocation in English Law - The Principles

The Principles

Under section 3 of the Homicide Act 1957:

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.

The initial burden was on the defence to raise sufficient evidence of provocation. As a matter of law, the judge would then decide whether to leave the defence to the jury. This did not change the burden of proof which, as in all criminal cases, was on the prosecution to prove the actus reus and mens rea of the offence charged, i.e. murder. The Act changed the common law, under which provocation had to fall under one of the following expectations:

• a grossly insulting assault
• witnessing an attack on a relative
• witnessing an Englishman being unlawfully deprived of his liberty
• a husband discovering his wife in the act of adultery; and
• a father discovering someone committing sodomy on his son (per Holmes v DPP (1946) AC 588).

The Act provided that provocation could be by anything done or said without it having to be an illegal act and the provoker and the deceased could be a third parties (see Davies (1975) QB 691). If the accused was provoked, who provoked him was irrelevant.

This section of the Act was repealed on 4 October 2010. It was superseded by sections 54 to 56 of the Coroners and Justice Act 2009 when they came into force on the same date.