The Battered Woman and South African Law
3. Introduction
3.5 Provocation
3.5.2 Requirement of sudden loss of self-control
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
In Ibrams,600 Thornton,601 and Ahluwalia 602 the Court of Appeal reaffirmed that there
is not a single mental condition but can vary in intensity over a spectrum. See Phillips v R [1969] 2 AC 130 (where Lord Diplock held that “there is an intermediate stage between icy detachment and going berserk” (at 137).
600[1981] 74 Cr App Rep 154. In this case the accused, who had been terrorized by the deceased over a period of time, killed the deceased following an agreement between them to do so. There was no evidence that on the day of killing the victim, that the victim had done anything to provoke him. The last provocation on the deceased’s part having been committed a few days earlier. The Court of Appeal held that the view that the formulation of a plan to kill and the lapse of time between the last act of provocation and killing negated the accused’s claim of loss of self control (Mousourakis supra (n 544) 63).
601[1992] 1 All ER 306, [1992] Crim LR 54. In this case the accused killed her husband who was an alcoholic and had been violent towards her on several occasions. The accused’s appeal was based on the argument that requiring a sudden and temporary loss of self-control was inappropriate particularly in a case where the accused was subjected to a long course of provocative conduct, which may sap the resilience and resolve to retain self-control when the final confrontation erupts (at 313). However, the Court of Appeal took the view that the requirement of loss of self-control has so long been an essential part of the provocation defence, that it could only be removed by legislative enactment. The court held that the distinction between acting while in control of oneself and acting under a sudden and temporary loss of self-control as drawn in Duffy supra (n 595) remained an important element of provocation: “[t]he distinction is just as, if not more, important in [this] kind of case...It is within the experience of each member of the court that in cases of domestic violence which culminate in the death of a partner there is frequently evidence given of provocative acts committed by the deceased in the past for it is in that context that the jury have to consider the accused’s reaction. In every such case the question for the jury is whether at the moment the fatal blow was struck the accused had been deprived for that moment of self-control which previously they had been able to exercise... We reject the suggestion that in using the phrase ‘sudden and temporary loss of control’ there was any misdirection of the jury” (at 314). Edwards and Walsh are of the view that: “while this ruling accepts the materiality of cumulative provocation, BWS and its place in the law remains to be tested. Little argument on BWS was adduced in this case. On appeal, the two psychologists for the defence gave evidence that she suffered from a mental disorder equivalent to BWS. The mainstay of arguments was that being the wife of a chronic alcoholic, she killed as a result of trying to cope with his volatile, unpredictable behaviour, violent continual drunkenness, mood swings, threats to herself and her daughter, drinking away their livelihood and his refusal to acknowledge that he needed help. According to Dr. Glatt an authority on alcoholism and whose evidence was not available at the first trial, this experience was like living on the edge of a volcano. Its effects he said would have been horrendous enough for an ordinary person of normal fortitude. But the accused was not ordinary. She suffered from a personality disorder medically attested and serious enough to be defined as abnormality of mind for purposes of section 2 of the Homicide Act which included vulnerable attention seeking behaviour, histrionic personality, past suicide attempts etc. This resulted in admission to hospital under Mental Heath Act of 1983” (“The justice of retrial” (1996) New Law Journal 857 at 859).
602The same approach as was taken in Thornton supra (n 601) was adopted in Ahluwalia [1992] 4 All ER 889, [1993] Crim LR 63. The accused, who had endured ten years of violence and humiliation from her husband, threw petrol in his bedroom and set it alight. He succumbed to his injuries.
Counsel for the defence challenged the applicability of the loss of self-control requirement.
Reference was made to the “cooling off” period which has sometimes been applied to an interval of time between the provocation and the fatal act. Counsel held that although such an interval may indeed be a time for cooling and regaining control, in others the time lapse has an opposite effect (at 893). The court held that the loss of self-control is an essential element of provocation serving “to underline that the defence is concerned with the actions of an individuals who is not, at the moment when she acts or acts violently master of her own mind” (at 895). It has been submitted that women who have been subjected to long periods of violent treatment may react to the final act or words by a
“slow-burn” reaction rather than by immediate loss of self-control. See Clarkson and Keating Criminal Law Texts and Materials 4th ed (1998) 691.
must be a “sudden and temporary loss of self-control,” as Devlin put in Duffy,603 and approved that judge’s further words:
“Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self- control, which is of the essence of provocation.” 604
In Ahluwalia 605 counsel asked the court to consider “slow-burn” anger, an example of where there is no immediate trigger. The question was whether a person who killed during a state of slow-burn anger could really be said to be acting without self-control, since it amounted to abandoning not only the “sudden and temporary” element but also the requirement that there must be “loss of self-control”.606 The assumption that the act of provocation was in the circumstances foreseeable, or that the accused was used to the victim’s untoward behaviour may militate against a loss of self-control requirement of provocation.607
In contrast to the view that the courts may return to their earlier, broader conception of anger, their Lordships in Ahluwalia 608 took the view that the phrase “sudden and
603Duffy supra (n 595).
604Ibid at 932.
605Ahluwalia supra (n 602).
606Clarkson and Keating supra (n 602) 692.
607Mousourakis supra (n 544) 157. This position has been adopted in subsequent cases. See Ibrams supra (n 600) at 155 and Thornton supra (n 601) at 313.The over-rigid legal conceptualization of
“heat of the moment” suggested only one psychological and/or physiological possibility or reaction.
This oversimplified model of mechanistic man is a legal fiction. Lord Diplock in Camplin [1978]
AC 705, [1978] 2 All ER 168 expressed some lurking doubts and found the “reasonable man” test a somewhat “inapt expression,” “since powers of ratiocination bears no obvious relationship to powers of self-control” (at 173).
608Ahluwalia supra (n 602).
temporary loss of self-control” did not imply that an accused’s reaction to the provocation had to be immediate; it implied only that the accused’s act of killing must not be premeditated. Thus a delay between the provocation could be fatal to an accused’s plea since:
“[t]ime for reflection may show that after the provocative conduct made its impact on the mind of the accused, he or she kept or regained self-control. The passage of time following the attack may also show that the subsequent attack was planned or based on motives, such as revenge or punishment, inconsistent with the loss of self-control and therefore with the defence of provocation.” 609
Thus the English Court of Appeal in Ahluwalia 610 had transformed the suddenness requirement in Duffy 611 to a requirement which accommodated the slow-burn type of response to provocation. Such a move could be considered good policy since it presupposed judicial activism in that women who experienced slow-burn would also have lost their self-control suddenly at the point in time when their emotions erupted or boiled over. Thus a long history of provocation could be used to explain why the accused lost her self-control as a response to provocation, which when considered in the abstract, would not seem to warrant such a response. However, their Lordships in Ahluwalia 612 further took the view that any change to the principles governing provocation would have to come from Parliament. Section 3 of the Homicide Act of 1957 is understood not to have altered the traditional position that provocation requires
609Ibid at 895.
610Ahluwalia supra (n 602).
611Duffy supra (n 595).
612Ahluwalia supra (n 602).
a sudden and temporary loss of self-control. For this reason, where there is no evidence suggesting that the accused was provoked to lose her self-control, the judge is still entitled to withdraw the defence from the jury. 613