¹ Cf. 3 Co.Inst. 47, although Coke failed clearly to connect provocation with the offence of manslaughter. For an examination of the law before the seventeenth century, see Kaye, J. M., “The Early History of Murder and Manslaughter” (1967) 83 L.Q.R. 365, 569. 594–601.Google Scholar

² Hale, 1 P.C. 455.

³ (1707) Kel. 119.

⁴ Lord Holt Lists the categories, and discusses the authorities for them, at Kel. 130–137. For present purposes it is unnecessary to analyse the previous decisions.

⁵ Per Lord Holt, at Kel. 135.

⁶ Death caused as a result of a sudden quarrel, “no undue advantage being sought or taken on either side” (Fooster, C.L. 295), was at this time an independent ground for reducing murder to manslaughter: cf. Hawkins, P.C., ch. 31, s. 28; East, 1 P.C. 241.

⁷ Cf. the Statute of Stabbing 1604 (1 Jac. 1, c. 8), the history of which reflects this distinction: Radzinowicz, , History of English Criminal Law, Vol. I, pp. 695–698.Google Scholar

⁸ Hopkin Huggett (1666) Kel. 59, followed in Tooley (1709) 2 Ld.Raym. 1296.

⁹ Tooley (above, n. 8), where Lord Holt replied: “surely ignoranlia facto [sic] will excuse, but never condemn a man. Indeed he acts at his peril in such a case, but he must not lose his life for his ignorance, when he happens to be right.” Cf. also Ferrers (1634) Cro.Car. 371.

¹⁰ Foster, C.L. 315; cf. Russell on Crime, 12th ed. (1964), pp. 450–452.Google Scholar

¹¹ Stephen, 2 H.C.L. 422–423.

¹² Kel. 137. This “hardness” would be irrelevant to most cases, since killings in adultery cases are usually for revenge rather than for prevention. Lord Holt's point was probably that it is justifiable for a citizen to kill to prevent a robbery whereas it is not justifiable for one spouse to kill to prevent adultery by the other spouse.

¹³ Goffe's Case (1672) 1 Vent. 216; Clement v. Blunt (1625) 2 Rolle 460; Keite (below, n. 24).

¹⁴ Below, p. 307.

¹⁵ (1671) 1 Vent. 159, sub nom. Manning. T. Raym. 212; see further on precedent malice Watts v. Brains (1600) Cro.Eliz. 779, Mason (1756) Fost. 132, and the modern application of the principle to evidence of premeditation in Parker v. R. [1964]Google Scholar A.C. 1369.

¹⁶ Cf. the observations of the Criminal Law Commissioners (Fourth Report, 1839 Parl.Pap. [168] xix-235), who in their notes to Article 43 of their Digest argued that “words or gestures may often be infinitely more irritating and provoking that a personal injury of a trivial nature,” but who also stated that if trivial provocations were allowed as sufficient, this would “weaken a salutary check, and withhold a signal mark of disapprobation stamped by the authority of the law.”

¹⁷ Mawgridge (1707) Kel. 119. where the lawfulness arose from self-defence, and the authorities cited above, n. 13.

¹⁸ Hale, 1 P.C. 457; East, 1 P.C. 239; cf. further Ashworth, “Self-Induced Provocation and the Homicide Act” [1973] Crim.L.R. 483.

¹⁹ (1869) 11 Cox C.C. 336, where Keating J. clearly articulated the objective standard of the sufficiency of provocation.

²⁰ Cf. especially Kel. 132.

²¹ Unreported, but discussed by Foster (C.L. 292) and by East (1 P.C. 234).

²² E.g., Wiggs (1784) 168 E.R. 291n.; Hazel (1785) 1 Leach 368; Fray (1785) discussed by East, 1 P.C. 236.

²³ East, 1 P.C. 234.

²⁴ In his article on “Provocation and the Reasonable Man” [1954] Crim.L.R. 740, Professor Glanville Williams argues that there was formerly a rejection of the proportion rule. He cites Ayes (1810) R. & R. 166, a decision which certainly ignores any requirement of proportionality, although the reasons why the assembled judges altered the verdict from murder to manslaughter were not published. In favour of proportionality is Keite (1697) 1 Ld.Raym. 139, and the nineteenth-century authorities discussed in the text.

²⁵ (1837) 7 C. & P. 817.

²⁶ (1837) 8 C. & P. 115.

²⁷ Criminal Law Commissioners, op. cit., p. xxv; cf. below, p. 302.

²⁸ Discussed below, p. 302.

^28a Cf. now the Criminal Law Revision Committee's “Working Paper on Offences against the Person” (dated August 1976), which states the existing law and proposes certain changes. It will be referred to below simply as the Working Paper.

²⁹ Smith & Hogan, Criminal Law, 3rd ed. (1973), p. 236: “Under the Act, the first hurdle for D is to satisfy the judge that there is evidence … that he lost his self-control.”

³⁰ Per Talbot, J. in Brown [1972] 2 Q.B. 229, 234Google Scholar; cf. also English, “What did Section Three do to the Law of Provocation?” [1970] Crim.L.R. 249, and Ash-worth [1973] Crim.L.R. at pp. 487–491.

³¹ Lynch (1832) 5 C. & P. 324; Sherwood (1844) 1 C. & K. 556; Smith (1866) 4 F. & F. 1066.

³² (1869) 11 Cox C.C. 336, 339.

³³ (1913) 109 L.T. 745; the argument, said Darling J., “brings one to the point where, if a man with red hair is killed by a man who is mentally deficient, the judge must leave it to the jury to say whether such a fact is sufficient provocation to reduce the crime to manslaughter.”

³⁴ [1914] 3 K.B. 1116. McCarthy [1954] 2 Q.B. 105; cf. also Thomas (above, n. 25).

³⁶ This was certainly the intention of the Royal Commission on Capital Punishment, whose recommendations formed the basis of section 3: see Cmd. 8932 especially paras. 126–137 and para. 151. Cf. further English [1970] Crim.L.R. 250–255.

³⁷ Smith & Hogan, op. cit., 244.

³⁸ Edwards, “Provocation and the Reasonable Man: Another View” [1954] Crim.L.R. 898, 900.

³⁹ Cf. Coleridge J. in Kirkham (1837) 8 C. & P. 115, 119: “the law … considers man to be a rational being, and requires that he should exercise a reasonable control over his passions.” Cf. Gordon, Criminal Law (1967), who would ask whether “the accused made reasonable efforts to control himself” (p. 729).

⁴⁰ In Bedder (below, n. 45).

⁴¹ Cf. Uddin, The Times, 14 September 1929Google Scholar, a trial before Hawke J. involving a Moslem who killed another Moslem after the latter had thrown a pigskin shoe at him. Evidence of the religious significance of the shoe throwing was given.

⁴² Cf. Raney (1942) 29 Cr.App.R. 14.Google Scholar

⁴³ There is an alternative, expressed in the phrase “the provocation he was subjected to.” On this view, it would be a question of how much the accused was provoked by the particular events. This comes close to an abandonment of the objective standard, since it would extend the defence to a person who took an unreasonably serious view of trifling insults.

⁴⁴ Cf. the Royal Commission on Capital Punishment, recognising and not disapproving of the practice whereby “juries not infrequently give weight to factors personal to the accused in considering a plea of provocation” (Cmd. 8932, para. 145). It would be preferable if juries were expressly and sensibly directed as to what they should and should not consider, rather than leaving the matter to their intuition and sympathies.

^44a The Criminal Law Revision Committee propose to replace the reasonable man test with a requirement that provocation is sufficient if “it constitutes a reasonable excuse for the loss of self-control.” In the Working Paper, para. 54, they state that this would enable “any physical characteristics of the accused to be taken into account”; but they also say that the accused should be “judged with due regard to any disability, physical or mental, from which he suffered,” which ignores the distinction advocated in this article.

⁴⁵ (1954) 38 Cr.App.R. 133; this was the first appellate case in which the point had been squarely raised for decision, although Uddin (n. 41) and Raney (n. 42) had confronted the practical problem.

⁴⁶ 38 Cr.App.R. at p. 141.

⁴⁷ The distinction contended for in the text is accepted in New Zealand: cf. Crimes Act 1961, s. 169, as interpreted in Macgregor [1962]Google Scholar N.Z.L.R. 1069. See also note 44a, above.

⁴⁸ Lord Simonds seemed to accept that the jury should place the reasonable man “in the circumstances in which the accused was placed,” whatever that might mean: 38 Cr.App.R. at p. 139.

⁴⁹ Cf. the Royal Commission's remarks, above, n. 44.

⁵⁰ Smith & Hogan, op. cit., p. 241; similarly Samuels, “Excusable Loss of Self-Control in Homicide” (1971) 34 M.L.R. 163, arguing that “the inscrutability of the jury verdict would remove the matter from the ambit of the law.”

⁵¹ Cf. the analysis above, pp. 296–297.

⁵² e.g. in McCarthy [1954] 2 Q.B. 105Google Scholar; McPherson (1957) 41 Cr.App.R. 213Google Scholar; Walker [1969] 1 All E.R. 767Google Scholar; Edwards v. R. [1973] 1 All E.R. 152.Google Scholar

⁵³ Op. cit., p. xxvi.

⁵⁴ Per Viscount Simon in Mancini v. D.P.P. [1942]Google Scholar A.C. 1.

⁵⁵ Cf. English [1970] Crim.L.R. at pp. 258–262.

⁵⁶ Phillips v. R. [1969] 2 A.C. 130Google Scholar, per Lord Diplock at p. 137.

⁵⁷ [1972] 2 Q.B. 229.

⁵⁸ Cf. White, “A Note on Provocation” [1970] Crim.L.R. 446, for a discussion of the meaning of the italicised words.

⁵⁹ [1972] 2 Q.B. at p. 234; Talbot J. went on to quote Lord Devlin's words in Lee Chun-Chuen v. R. [1963]Google Scholar A.C. 220, 231: “Provocation in law consists mainly of three elements—the act of provocation, the loss of self-control, both actual and reasonable, and the retaliation proportionate to the provocation.”

⁶⁰ Smith & Hogan, op. cit., pp. 242–244; Brett, loc. cit., below, n. 72.

⁶¹ David Hume, A Treatise on Human Nature, ed. Selby-Bigge (1888), p. 415.

⁶² [1969] 2 A.C. 130, 137.

⁶³ Cofer, C. N. & Appley, M. H., Motivation: Theory and Research (New York 1964), pp. 417–423Google Scholar, discussing aggression, repression, regression and fixation as forms of response to frustration. Much psychological theory seeks to explain aggressive behaviour by reference to frustration, but the particular point in the text is not dependent upon the frustration-aggression hypothesis.

⁶⁴ Vernon, M. D., Human Motivation (Cambridge 1969), p. 62Google Scholar; cf. similarly Cofer & Appley, op. cit., p. 418.

⁶⁵ Cf. generally Anthony, An Experiment in Personality Assessment of Young Men Remanded in Custody (H.M.S.O., 1972), pp. 6–14, and Eysenck, , Crime and Personality (Paladin, 1970), p. 107.Google Scholar

⁶⁶ Storr, , Human Aggression (Pelican, 1968), p. 28Google Scholar; cf. similarly Grossman, , Physiological Psychology (New York 1967), p. 498.Google Scholar

⁶⁷ Professor Vernon (op. cit., p. 65) relates this to a distinction between the “middle classes” and the “working class,” arguing that the former attempt to suppress aggression whereas the latter typically accept it.

⁶⁸ Anthony, op. cit., pp. 6–14.

⁶⁹ Pastore, , “The Role of Arbitrariness in the Frustration-Aggression Hypothesis” (1952) 47 Journal of Abnormal Social Psychology 728–731CrossRefGoogle Scholar, reporting an experiment the results of which suggest that any theory of human aggression must refer to the important difference between arbitrary and non-arbitrary stimuli.

^69a A majority of the Criminal Law Revision Committee tentatively propose that the new test of “reasonable excuse” (cf. note 44a) should apply only to loss of self-control, and not to the actual form of retaliation: Working Paper, para. 56. On this view, the retaliation would merely be evidence of loss of self-control.

⁷⁰ The proper inference from multiple wounding is however unclear. In some cases courts have adopted the view that the repeated infliction of wounds shows a degree of deliberation, in others courts have accepted that multiple wounding is consistent with “going berserk” or a total loss of control. The latter inference may well be more frequently correct.

⁷¹ Cross & Jones, Introduction to Criminal Law, 7th ed. (1972), p. 151.

⁷² Brett, “The Physiology of Provocation” [1970] Crim.L.R. 634.

⁷³ Whereas Storr (op. cit., p. 29) states that “subsequent research has done nothing to invalidate his [Cannon's] original thesis,” other writers discuss “serious objections which have been raised against some of its basic assumptions”: Grossman, op. cit., pp. 515–526, and Vernon, op. cit., pp. 78–79.

⁷⁴ Maier, N. R. F., “Frustration Theory: Restatement and Extension” (1956) 63 Psychological Review, 370, 382.CrossRefGoogle Scholar

⁷⁵ Cf. the discussion of loss of self-control below, pp. 314–317.

⁷⁶ Cf. above, n. 69.

⁷⁷ For example, someone who reacts suddenly to provocation may retain sufficient control to pass over a glinting knife and vent his or her anger with a wooden spoon or with pottery: cf. White [1970] Crim.L.R. at p. 447.

⁷⁸ Cf. above, p. 294, and the case of Gauthier (1943) 29 Cr.App.R. 113Google Scholar, where the accused went to meet his wife's paramour, taking a gun and leaving it near the meeting place. Even if he did lose his self-control and even if the provocation was grave, should not his forearming operate to exclude the defence?

⁷⁹ This is a strong impression, derived from reading many reported and unreported cases but unsubstantiated by systematic research. Cf. n. 80 below.

⁸⁰ See further Ashworth, “Sentencing in Provocation Cases” [1975] Crim.L.R. 553, and sources cited thereat.

⁸¹ Cf. generally, for this view, the summing-up of Devlin, J. in Duffy [1949] 1 All E.R. 932Google Scholar, described by Lord, Goddard C.J. as a “classic direction” on provocation.Google Scholar

⁸² Cf. the developments in criminology which have led investigators to pay greater attention to the role of the victim in violent crimes. Hans, Von Hentig, The Criminal and his Victim (New Haven 1948)Google Scholar, concluded that “the victim is one of the causative elements, and we would do well to pay more attention to him in judging the criminal and his action” (p. 436). Wolfgang, M. E., Patterns in Criminal Homicide (New York 1958)CrossRefGoogle Scholar, included in his study a category of “victim-precipitated homicides,” although his definition was confined to cases in which the victim was the first to use force against his subsequent slayer. Cf. now Drapkin, & Viano, (eds.), Victimology (Lexington 1974).Google Scholar

⁸³ Nicomachean Ethics, v, 8 (tr. Sir W. D. Ross).

⁸⁴ “The offence does not originate in the will of the delinquent. The primary cause is the act of another, the will of another …”: Bentham, Theory of Legislation, ed. Ogden (1931), p. 262.

⁸⁵ Cf. above, pp. 294–297, for a discussion of the form of causal reasoning involved in provocation cases, cf. Hart, & Honoré, , Causation in the Law (Oxford 1959), pp. 49–55.Google Scholar

⁸⁶ Austin, J. L., “A Plea for Excuses” (1956) 57 Proceedings of the Aristotelian Society, at p. 3.Google Scholar

⁸⁷ E.g., in Birchall (1913) 9 Cr.App.R. 91Google Scholar, Nuttall [1956] Crim.L.R. 125Google Scholar, and Fantle [1959] Crim.L.R. 585.Google ScholarCf. the argument of T. H. Green, Lectures on the Principles of Political Obligation (1885), that failure to mitigate punishment in cases of strong provocation might tend to diminish respect for the right whose violation provoked the slaying. Thus, if the punishment of a man who was provoked to kill an adulterer in a quarrel was not reduced, this might tend “to weaken the general sense of the wrong—the breach of family right—involved in the act which, in the case supposed, provokes the homicide,” (op. cit., p. 195).

⁸⁸ R.C.C.P., Minutes of Evidence, Q. 5367; the argument was apparently accepted by the Commission: Cmd. 8932, para. 143.

⁸⁹ Cf. Turner in Russell on Crime, 12th ed. (1964), p. 546, and Kenny's Outlines of Criminal Law, 19th ed. (1966), p. 178; Williams, “Provocation and the Reasonable Man” [1954] Crim.L.R. 740; Smith & Hogan, op. cit., pp. 243–244.

⁹⁰ The “good-tempered man” surely means the same as “the reasonable man.” If an anthropomorphic standard is to be used (cf. above p. 299), then the “normally good-tempered man” would be more accurate.

⁹¹ Dr. Turner in Russell on Crime, 12th ed. (1964), p. 546.

⁹² Smith & Hogan, op. cit., p. 244.

⁹³ In 1839 the Criminal Law Commission stated that abolition of the rule that words could not amount to provocation would “weaken a salutary check” (cf. above, n. 16); an American judge, Christiancy J., argued in Maher v. People (1862) 10 Mich. 212 that “by habitual and long continued indulgence of evil passions, a bad man might acquire a claim to mitigation which would not be available to better men” (p. 220); and Fitzgerald, , Criminal Law and Punishment (Oxford, 1962)Google Scholar, argues that the abolition of the objective standard “would be to set a premium on hot temper” (p. 128).

⁹⁴ Cf. Olivecrona, Law as Fact, 1st ed. (1939), pp. 150–168.

⁹⁵ The term “congenitally incapable” is used to distinguish the more permanent incapacities from those which are temporary (e.g., induced by intoxication).

⁹⁶ Russell on Crime, 12th ed. (1964), p. 535.Google Scholar

⁹⁷ Wechsler & Michael, “A Rationale of the Law of Homicide” (1937) 37 Columbia L.R. 701, 1251, 1281.

⁹⁸ S. 2 refers to “such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility.”

⁹⁹ Dr. Neustatter, W. L., “Psychiatric Aspects of Diminished Responsibility in Murder” (1960) 28 Medico-Legal Journal 92, 94.CrossRefGoogle Scholar

¹ Per Lord, Cooper in H.M. Advocate v. Braithwaite, 1945Google Scholar S.C.(J.) 55.

² Cf. Walker, Crime and Insanity in England, i, p. 151.

³ [1960] 2 Q.B. 396.

^3a In the Working Paper, para. 53, the Criminal Law Revision Committee suggest that in practice a combined verdict may be returned even though the provocation was not sufficient to provoke a reasonable man. The Committee fail to explore the relation of their proposed new test of provocation to defences based on mental disorder, yet the issue of classification is important. Cf. note 44a, above, on “mental disability.”

⁴ e.g., Jennion [1962] 1 W.L.R. 317.Google Scholar

⁵ e.g., Eeles, The Times, October 21 and 22, 1972.Google Scholar

⁶ Cf. the authorities discussed and criticised by Ashworth [1975] Crim.L.R. at 556–559.

⁷ Davies [1975]Google Scholar Q.B. 691. The Criminal Law Revision Committee propose that juries should “take previous provocations into account where the present insult brought the accused to flashpoint”: Working Paper, para. 57.

⁸ Cf. above, p. 297.

⁹ Howard, Australian Criminal Law, 2nd ed. (1970), p. 323.

¹⁰ Ibid.

¹¹ Cf. Ashworth, “Reason, Logic and Criminal Liability” (1975) 91 L.Q.R. 102.

¹² Cf. Sparks, “Diminished Responsibility in Theory and Practice” (1964) 27 M.L.R. 9, 18; Hart, , Punishment and Responsibility (Oxford, 1968), at p. 153.Google Scholar

¹³ These types of case are discussed in greater detail by Gordon, op. cit., p. 719 (dealing with the Scots case of H.M. Advocate v. Gilmour, 1938Google Scholar J.C. 1, where it was laid down that a provoked killing might be reduced to the crime of assault if the accused “acted in the first transport of his passion without appreciating to the full extent what he was doing”), and by Ashworth, 91 L.Q.R. at pp. 128–129.

¹⁴ Principles of Morals and Legislation, ch. XI, para. 42.

¹⁵ Op. cit., 37 Col.L.R. at pp. 1283–1284.

¹⁶ In his “classic direction” in Duffy [1949] 1 All E.R. 932Google Scholar, Devlin J. referred to provocation which “actually causes in the accused a sudden and temporary loss of self-control.” See also the Working Paper, quoted below, note 20.

¹⁷ Cf. above, n. 6.

¹⁸ Duffy [1949] 1 All E.R. 932Google Scholar; Brown [1972] 2 Q.B. 229, 234Google Scholar; but cf. now Davies, above n. 7.

¹⁹ Fisher (1837) 8 C. & P. 182, where Park, J. held that “whether the blood had time to cool or not, is rather a question of law”Google Scholar; Albis (1913) 9 Cr.App.R. 158.Google Scholar

²⁰ Hall (1928) 21 Cr.App.R. 48Google Scholar; Lee Chun-Chuen [1963] A.C. 220Google Scholar; but cf. Mancini v. D.P.P. [1942]Google Scholar A.C. 1, 9. The recent Working Paper, however, appears to favour an objective test, stating in para. 57 that the defence “should apply only to loss of self-control arising suddenly upon the provoking event, and not to cases where the accused's reaction is greatly delayed.”

²¹ The consequence of this would be that persons with unusually broody temperaments, like Albis (cf. above, n. 19), might be able to succeed on the defence of provocation even if they killed a day after receiving the provocation. Cf. Uddin (above, n. 41), where the defence did succeed in such circumstances.

²² Criminal Law Commissioners (op. cit.), n. to Article 44 of the Digest of Offences.

²³ Cf. above, p. 302.

²⁴ [1964] A.C. 1369, 1391; cf. the discussion of “precedent malice” above p. 294. The defence of provocation would still be available if the accused, having formed an intent to take revenge of another, then abandoned this intention, but was subsequently provoked to attack the other: such a narrative of events was accepted by the court in Fantle [1959]Google Scholar Crim.L.R. 585.

²⁵ On a charge of murder, the defence of diminished responsibility might be open to such an individual: cf. above pp. 312–313. On charges other than murder, the accused might attempt to set up a defence of insanity under the M'Naghten Rules, but it is more common for mental disorder to be dealt with on conviction by an order under the Mental Health Act 1959.

²⁶ With crimes other than murder, provocation can be taken into account at the sentencing stage. The arguments here apply equally to the issues of when, and to what extent, provocation should be allowed to mitigate punishment.

²⁷ For further discussion of the problem of determining the gravity of provocation, cf. Ashworth, “Sentencing in Provocation Cases” [1975] Crim.L.R. 553.

²⁸ Some might maintain that there should always be such a duty when dealing with a police officer, whether he is acting lawfully or not: cf. Fennell [1971] 1 Q.B. 428.Google Scholar

²⁹ Cf. Lord Holt C.J. in Mawgridge (1707) Kel. 119, 134: “The like in obstinate and perverse children, they are a great grief to parents, and when found in ill actions, are a great provocation. But if upon such provocation the parent shall exceed the degree of moderation, thereby in chastising kill the child, it will be murder.” In Smith (1914) 11 Cr.App.R. 36Google Scholar, Ridley J., arguendo, observed that “it is difficult to suggest how provocation could be given by a child of two and a half years.”

³⁰ Self-induced provocation cannot be dismissed as a remote possibility: cf. Toch, , Violent Men (Harmondsworth 1972)Google Scholar, on the role of some violent men as “exploiters” and as “self-image promoters.”

³¹ Even if the prosecution were to be given the power to raise diminished responsibility in cases where the accused might be mentally abnormal, would that power be used sufficiently often?

³² Op. cit., p. 244.

³³ A problem which, some would argue, might become more acute if the modifications of the objective test suggested here were introduced.