Provocation in English law

In English law, provocation was a mitigatory defence alleging a total loss of control as a response to another's provocative conduct sufficient to convert what would otherwise have been murder into manslaughter. It does not apply to any other offence. It was abolished on 4 October 2010 by section 56(1) of the Coroners and Justice Act 2009, but replaced by a relatively similar defence of "loss of control".

Under section 3 of the Homicide Act 1957 (repealed, see below):

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:

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This section of the Act was repealed on 4 October 2010. It was superseded by sections 54 to 56 of the Coroners and Justice Act 2009 when they came into force on the same date.

This was a subjective test and a pure question of fact, i.e. the evidence had to show that the defendant actually lost his self-control. In R v Duffy, Devlin J. said that

Under normal circumstances, the response to the provocation had to be almost immediate retaliation. If there was a "cooling-off" period, the court would find that the accused should have regained control, making all subsequent actions intentional and therefore murder. In R v Ibrams & Gregory the defendants had been terrorised and bullied by the deceased over a period of time so devised a plan to attack him. There was no evidence of a sudden and temporary loss of self-control as required by Duffy. Even the period of time to fetch a weapon could be sufficient to cool off. In R v Thornton, a woman suffering from "battered woman syndrome" went to the kitchen, took and sharpened a carving knife, and returned to stab her husband. The appeal referred to s3 which required the jury to have regard to "everything both said and done according to the effect which in their opinion it would have on a reasonable man". The appellant argued that instead of considering the final provocation, the jury should have considered the events over the years leading up to the killing. Beldam L. J. rejected this, saying:

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