The Battered Woman and South African Law
3. Introduction
3.5 Provocation
3.5.1 Development of the defence
In the later thirteenth century, culpable homicide was a single undivided offence. Its mens rea consisted of an intention to kill or to inflict grievous bodily harm.584 In 1390
582Zecevic supra (n 579) 666.
583“There is no rule which dictates the use which the jury must make of the evidence and the ultimate question is for it alone” Zecevic supra (n 579) 653. The English Criminal Law Revision Committee has seemed to adopt the position that the doctrine of excessive defence as expressed in Howe supra (n 580) was right in principle and recommended its introduction in the context of self-defence and other defences.
584Cal. Inq. Misc., vi 95, cited in Kaye “The Early History of Murder and Manslaughter” (1967) Law Quarterly Review 370. In 1310 the Commons complained that pardons for larcenies, homicides and robberies had been too freely granted, and secured a promise, which was not kept that pardons would not be granted except in the cases in which they had come to be regarded as unexceptionable: in the case of homicide, self-defence and misadventure. (Rotuli Parliamentorum ii, 171 a, 172, cited in Kaye supra at 378.) In 1347 the Commons complained that the too frequent issue of pardons had greatly encouraged murderers, robberies, homicides and felonies and seem to have asked parliament to remedy the matter by statute. The king returned an evasive answer: no charter was to issue sil ne soit a l’honour & profit de lui & de son people, thus concealing whatever distinction had been intended to be drawn between murderer and homicide (Kaye supra at 378). It is clear that by homicide the Commons cannot have intended to denote justifiable or excusable killings, for which pardons were admitted to lie of course, and the only interpretation of these terms consistent with previous use of the term is that murder secret or stealth killing was intended, and by homicide all other culpable killings.
the Commons petitioned against the practice of issuing pardons. Their complaint was that the issue of pardons for murder, treason and rape had been granted too freely and also that general pardons i.e., for all felonies and pardons under the Statute of Gloucester, were entitled to pardons for homicide in self-defence and by misadventure, should not be granted in cases where culpable homicide had been committed.585 The Crown granted the petition but for obvious reasons defined the crimes for which pardons were not lightly to be granted with more precision than the Commons had utilized. Parliament’s intention was to make the same divisions of culpable homicide as had been made on the earlier occasion: killings by secrecy or stealth, killing from ambush, and, as a residuary category, all other killings which gave rise to no recognized defence. The Statute thus introduced a new element in assault. The definition of murder, and the categorization of culpable homicide generally, adopted by the Statute of 1390 does not appear to have survived the fifteenth century.586
Within 30 years of the Statute the categories of assault became obsolete. Since the 1390 Statute had failed its purpose, as well as the fact that the degree of overlapping between the 1390 divisions had proven to be an unnecessary obstacle to framers of indictments, and since culpable homicide was equally capital, there seems to have been a consolidation of the two remaining divisions, murder and homicide par malice prepense.587 Furthermore, the word murder reverted to the broad general descriptive term for culpable homicide of any kind: in which sense it had sometimes been used before, in 1380 and 1390, a narrower interpretation had been put on it.588
585Rot. Parl., iii, 268, cited in Kaye supra (n 584) 391.
586Kaye supra (n 584) 568.
587Kaye supra (n 584) 569.
588Ibid.
The distinction between murder and manslaughter was redefined following the enactment of a statute in 1547, which excluded the benefit of clergy 589 from those found guilty of manslaughter.590
An important step towards the formulation of the modern doctrine of provocation came in the 19th century in the form of the concept of the reasonable person. This provided a universal standard of self-control by which an accused’s response to the provocation would be assessed.591 But, it was not until the early 20th century that the role of the
589This related to the right of clerks in holy orders to be tried for crimes by ecclesiastical courts thus improving their chances of avoiding conviction. As this was deemed unfair, a number of statutes were enacted which removed the benefit of the clergy. 4 Hen. VIII, C.2; 23 Hen. VII, C. I, s. 3.
Mousourakis supra (n 544) at 63-64 notes that through these statutes a tripartite classification of homicide was introduced. These included homicides committed with malice aforethought, punished by death; and homicides committed without prior malice (chance medley manslaughters) and homicides subject to royal pardon (excusable homicide) and the last category is that of justifiable homicide resulting in a full acquittal.
590Edw. 6, C. 12. Mousourakis supra (n 544) at 64-65 is of the view that this statute resulted in murder being distinguished from manslaughter on the basis of the presence or absence of premeditation.
Thus manslaughter would mean deliberate killing on the spur of the moment as understood by Coke and other commentators of the 16th and 17th centuries. The basis of the distinction resulted from the assumption that premeditated killing was more reprehensible than a killing which is unpremeditated.
However the distinction between killing with malice aforethought and chance medley manslaughter proved problematic as it was difficult to prove malice. Gradually chance medley was abandoned and the test for manslaughter was the presence or absence of provocation. This development was brought about by the enactment of the Statute of Stabbing 1604 which removed the benefit of clergy from those who killed another by stabbing; where the victim had not drawn his weapon, even though the killing was committed without premeditation (Stat. 2 Jac. VI, C.8 (1604), (cited in Mousourakis supra (n 544) 66). The narrow scope of the Statute of Stabbing made its application difficult in certain cases. Thus to deal with such cases the judges in the 17th and 18th centuries laid down criteria to determine which conduct amounted to provocation. Further it was reconfirmed that provocation was not available to those who killed out of revenge. The emphasis on the wrongfulness of the provocative conduct exercised a large influence on the development of the provocation defence. The real basis of the defence was the law’s compassion to human frailty. Thus it was believed that the accused as a result of provocation becomes so subject to passion that his ability to reason and exercise judgment is temporarily suspended. It was also recognized that that if the accused’s response is out of proportion to the provocation, the presumption of malice would be negated.
Mousourakis supra (n 544) at 67 is of the view that this approach is reflected in cases decided in 18th and 19th centuries such as Ayes (1810) R&R 166; Lynch (1832) 5C & P 324; 325; Hayward (1883) 6 C P 157; 159; Fisher (1837) 8 C & P 182 and Kelly (1848) 2 C & L 814. During this time, there was a shift in emphasis from the wrongfulness of the provocative conduct to the requirement of loss of self-control, although the courts continued to recognize and apply the categories of legal provocation as laid down by 17th and 18th century authorities. See Mousourakis supra (n 544) 66-67 for examples of these categories.
591Ashworth “The Doctrine of Provocation” (1976) Criminal Law Review 290. Welsh (1869) 2 Cox CC 336 is regarded by Ashworth as the starting point in the development of the modern law of provocation. In this case it was held that “...[I]n law it is necessary that there should be a serious provocation in order to reduce the crime to manslaughter, as for instance, a blow, and a severe blow - something which might naturally cause an ordinary and reasonable minded person to lose his self- control” (at 338). Mousourakis is of the view that there was no immediate recognition of the
Reasonable person in provocation received full recognition. In Lesbini 592 the court rejected the view that a lower standard of provocation applied to those suffering from mental disabilities. This showed that in all cases of provocation, it must be serious enough to affect the mind of a reasonable person.593 Until the passing of the Homicide Act 1957, the question of whether the conduct amounted to provocation was not a question of law but was for a judge and not the jury to decide? 594
In 1949, the common-law definition of provocation was set out in Duffy: 595
“Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually in the defendant, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not the master of his mind.” This definition was modified by section 3 of the Homicide Act of 1957. According to this section:
“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 self-control, the question of whether the provocation was enough to make a reasonable person do as they did shall be
reasonable person in provocation since the objective standard is not mentioned by Stephen in his Digest of the Criminal Law (1877) and A History of the Criminal Law of England (1883). Stephen simply laid down the different forms of conduct that amounted to provocation, pointing out that the success of the accused’s plea in such cases depended on whether the victims conduct came under one of the established categories of provocation and on whether the accused actually lost his self- control as a result. Only when these conditions were satisfied, was the offence reduced to manslaughter (See Mousourakis supra (n 544) 68). See articles 224-226 of Stephen’s Digest for the Common law position of the defence of provocation as it was reflected in the late 19th century as well as the acts in article 225 which amounted to provocation.
592[1914] 3 KB 116. See also Alexander (1913) 109 LT 745.
593Ashworth supra (n 591) 298.
594Mousourakis supra (n 544) 70. There is early case law which provides for provocation as a defence to a charge of attempted murder but this does not represent the present law which recognizes provocation as a defence to murder only. For a discussion of how South African law treats the provocation/emotional stress defence see chapter 2 at pages 67-102 supra; for a discussion of the American defence of provocation see chapter 4 at 204-224 infra.
595(1949) 1 All ER at 932.
left to be determined by the jury; and in determining that question the jury should take into account everything both done and said according to the effect which in their opinion, it would have had on a reasonable person.”
Provocation operates as a partial defence to murder reducing murder to voluntary manslaughter. Since malice aforethought is defined as an intention to kill or to cause grievous bodily harm, provocation does not negative the required malice element of murder.596 Pleading provocation presupposes that the prosecution has provided sufficient evidence to justify the returning of a verdict of murder. If it is not proved beyond reasonable doubt that the accused had the mens rea for murder i.e. intention to kill, then they must find the accused not guilty of murder, and necessarily of manslaughter. However if the jury is of the view that the accused had the requisite intention of murder, they must convict her of manslaughter, if they found that she was provoked.597