The Law Commission

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PART III

THE HISTORY OF THE DEVELOPMENT OF THE PARTIAL DEFENCE OF PROVOCATION

Introduction

3.1     Horder claims that, conceptually, provocation can be traced back to the wide responsibilities and discretion given to juries in the early thirteenth century.^[1] However, the foundations of the concept of provocation as it is understood today were not laid until the seventeenth century.^[2]
3.2     In this Part we will focus on this more recent history of provocation. Our understanding of the historical basis upon which this partial defence has developed will, in turn, inform our assessment of the basis for its operation as a contemporary partial defence to murder.
3.3     Consideration of the development of provocation prior to the Homicide Act 1957^[3] needs to take account of:

1) whether the defence is a partial justification, a partial excuse or an amalgam of both;

2) the contemporary understanding of mens rea; and

3) the changing social mores and conditions in which the law developed.

Justification and excuse

3.4     The partial defence of provocation arose in response to the mandatory death sentence for murder. When reviewing the law of provocation in the mid twentieth century, the Royal Commission on Capital Punishment 1949-1953 Report stated that:

Provocation can never render an unlawful homicide excusable or justifiable; but if the act by which death is caused is done in the heat of passion caused by provocation, this may reduce the crime from murder to manslaughter.^[4]

3.5     While this is true, as provocation is only a partial defence reducing a potential murder conviction to manslaughter, addressing whether provocation is based on a partial justification theory or a partial excuse theory or, indeed, a hybrid of the two, is helpful in our assessment of its development. In particular, it may assist in identifying whether the defence developed on the foundations of a coherent moral basis or whether it developed in casuistic fashion responding primarily to changes in contemporary moral and social standards of behaviour.
3.6     The essence of the distinction between partial justification and partial excuse is that the former focuses on the conduct of the provoker while the latter focuses on the behaviour of the provoked. If the defence is viewed as a partial justification the focus is placed on whether the provoker's conduct was in some way untoward in the first place. If viewed as a partial excuse, the focus is placed on whether or not the defendant is entirely to blame for his conduct.
3.7     In the thirteenth century the law of homicide was reformed and all felonious homicides were made capital offences. To mitigate the harshness of the mandatory sentence, two categories of non-felonious homicide were created: justifiable homicide and excusable homicide. A finding of justifiable non-felonious homicide led to an acquittal, where a finding of excusable non-felonious homicide provided a strong case for a royal pardon, which was granted almost automatically.^[5]
3.8     Although the law on homicide has now developed far beyond this structure, there has recently been a resurgence of interest in whether the defence is one of partial justification or partial excuse.^[6] The cases before 1957 do not, however, expressly articulate the concepts of partial justification and partial excuse.

Mens rea

3.9     The mens rea of murder changed significantly from the mid seventeenth century to the mid twentieth century. In the seventeenth century the "wickedness" of murder was held to be "aggravated by the circumstances of secrecy or treachery".^[7] However, by 1727 it was said to have "been long since settled to be, the voluntary killing a person of malice prepense, and that whether it was done secretly, or publickly".^[8] Malice, in the legal sense, was said to import "a wickedness, which includes a circumstance attending to an act, that cuts off all excuse".^[9] This understanding of malice aforethought, involving not only pre-meditation, but also some kind of "wicked disposition"^[10] or "bad spirit"^[11], continued up until the late nineteenth century, when it began to be interpreted as requiring no more and no less than an intention to kill or cause grievous bodily harm.^[12]
3.10     It would seem that the approach to provocation in the case law develops alongside the changing understanding of the mens rea for murder, and this will be noted as we trace the history of the partial defence.

Social circumstances

3.11     The development of the partial defence of provocation has been influenced by the social circumstances in which it has operated. Although the early case law does not specifically refer to the social context, its significance was identified in 1949 by Lord Goddard CJ:

At a time when society was less secure and less settled in its habits, when the carrying of swords was as common as the use of a walking stick at the present day, and when duelling was regarded as involving no moral stigma if fairly conducted, it is not surprising that the courts took a view more lenient towards provocation than is taken to-day when life and property are guarded by an efficient police force and social habits have changed.^[13]

3.12     As social habits have changed, so have our perceptions of what is partially justifiable or excusable behaviour. In 1997 Lord Bingham CJ found it hard to "imagine circumstances in which a reasonable man would strike a fatal blow with the necessary intention, whatever the provocation".^[14] However, in the early 18th century an "affront" of "pulling … the nose, or filliping upon the forehead" was held to be sufficient provocation to reduce murder to manslaughter.^[15]
3.13     It would appear that in the early eighteenth century conduct of a kind which would now be considered trifling was considered a grave affront.^[16] It is evident, therefore, that the prevailing social mores at any particular time have played a vital role in the development of the defence.

Developing a partial defence of provocation

Nature of the "provocation"

3.14     The understanding of what behaviour is capable of constituting "provocation" evolved over the years before 1957. It is arguable that the evolution reflected changing contemporary standards as to what was acceptable behaviour and a desire to ensure that there were appropriate limits as to what could constitute "provocation".
3.15     In the early eighteenth century case of Mawgridge^[17] the defendant initially insulted a woman. On the victim's request that he leave the room, he proceeded to throw a bottle at the victim. The victim responded in kind and the defendant then drew his sword and stabbed the victim. The jury's verdict was murder. The victim's response of throwing a bottle was held not to be provocation. Lord Holt CJ stated what conduct was capable of constituting "provocation":

First, if one man upon angry words shall make an assault upon another, either by pulling him by the nose, or filliping upon the forehead, and he that is so assaulted shall draw his sword, and immediately run the other through, that is but manslaughter…

Secondly, if a man's friend be assaulted by another, or engaged in a quarrel that comes to blows, and he in the vindication of his friend, shall on a sudden take up a mischievous instrument and kill his friend's adversary, that is but manslaughter…

Thirdly, if a man perceives another by force to be injuriously treated, pressed, and restrained of his liberty, though the person abused doth not complain, or call for aid or assistance; and others out of compassion shall come to his rescue, and kill any of those that shall so restrain him, that is manslaughter…

Fourthly, when a man is taken in … adultery with another man's wife, if the husband shall stab the adulterer, or knock out his brains, this is bare manslaughter: for jealousy is the rage of a man, and adultery is the highest invasion of property…^[18]

3.16     This judgment demonstrates that what was capable of constituting provocation was confined to a limited number of defined categories. Ashworth submits that the link between these four categories of provocation is that of "unlawfulness".^[19] Horder refutes this however, asserting that "Ashworth's analysis of the early modern law lacks … a theory or frame of reference for explaining the gravity of provocation, which is grounded in an account of 'the natural feelings of [that] past time'".^[20]
3.17     It is significant that in Mawgridge the judgment hinges on a lack of "malice prepensed". Although the above four categories of provocation are outlined, it is also noted that "provocation" of a lesser degree may be capable of reducing murder to manslaughter if the reaction to that "provocation" is also limited, so as to demonstrate that death was not intended:

Suppose upon provoking language given by B to A, A gives B a box on the ear, or a little blow with a stick, which happens to be so unlucky that it kills B . . ., this blow though not justifiable by law, but is a wrong, yet it may be but manslaughter, because it doth not appear that he designed such a mischief.^[21]

3.18     The period of just over a century following the decision in Mawgridge witnessed the industrial revolution, the establishment of the Metropolitan Police, followed shortly thereafter by rural police forces, and considerable social unrest and violence, particularly in the decades following the conclusion of the Napoleonic War in 1815. Whether coincidental or not, in the decade from 1830 to 1840 there were a number of cases on provocation.
3.19     In Lynch^[22] it was stated that:

It is not every slight provocation, even by a blow, which will, when the party receiving it strikes with a deadly weapon, reduce the crime from murder to manslaughter.

3.20     In their summing up to the jury, however, the judges focussed on lack of intent. The defendant had murdered his friend following an altercation outside a pub in which the two had been drinking. The victim had punched the defendant, who had called the police and left, but had then returned some moments later with a knife and stabbed the victim, who died. Lord Tenterden stated:

if you think that the act was the act of a wicked, malicious, and diabolical mind (which, under the circumstances, I should think you hardly would), then you will find him guilty of murder.^[23]

3.21     This approach is evident in Hayward,^[24] which makes little mention of the provoking circumstances but focuses on whether the defendant had "shewn thought, contrivance, and design …[which]… denoted rather the presence of judgment and reason, than of violent and ungovernable passion".^[25]
3.22     A change in approach is discernible with the emergence of the "reasonable man" in Welsh.^[26] Keating J sums up the change:

in law it is necessary that there should have been 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 man to lose his self control and commit such an act.^[27]

This new approach emphasises not only loss of self-control, but also the need for a sufficient degree of provocation. This emphasis on the need for the "provocation" to be "serious" is a theme of the case law prior to the 1957 Act.^[28] There must be "such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion".^[29]

3.23     In Rothwell^[30] Blackburn J stated that "if a husband suddenly hearing from his wife that she had committed adultery, and he having had no idea of such a thing before, were thereupon to kill his wife, it might be manslaughter".^[31] This suggested that words alone might be capable of constituting "provocation".
3.24     A consistent theme of later cases, however, was the refusal of the courts to treat words alone as capable of constituting "provocation". In Alexander^[32] the defendant killed his wife following her confession that she was considering moving in with another man. A murder verdict was returned on the basis that the "provocation" was insufficient. Darling J did not completely rule out that words alone could constitute "provocation", but limited the possibility to "exceptional circumstances".^[33] In Holmes,^[34] also a case of domestic killing resulting from an alleged confession of adultery, Viscount Simon reiterated that "in no case could words alone, save in circumstances of a most extreme and exceptional character, [reduce the crime from murder to manslaughter]".^[35] He also highlighted the relevance of social change, emphasising that "we have left behind us the age when the wife's subjection to her husband was regarded by the law as the basis of the marital relation . . . Parliament has now conferred on the aggrieved wife the same right to divorce her husband for unfaithfulness alone as he holds against her, and neither, on hearing an admission of adultery from the other, can use physical violence against the other which results in death and then urge that the provocation received reduces the crime to mere manslaughter".^[36]
3.25     In McCarthy^[37] Lord Goddard CJ suggested that in some circumstances words alone might be capable of constituting "provocation". The victim had allegedly propositioned the defendant with an invitation to "commit sodomy", upon which the defendant had "knocked him down and beat his face or head on the surface of the road, thereby causing severe injuries".^[38] Whilst it was held that the provocation was insufficient to excuse such a violent response, Lord Goddard CJ conceded that "this provocation would no doubt have excused … a blow, perhaps more than one".^[39] This emphasises the need for a reasonable relationship between the provocation and the mode of showing resentment and is reminiscent of what Lord Holt CJ had said in Mawgridge.^[40]

Nature of the response

Time passed and weapon used

3.26     The history of provocation is consistent in requiring that there be a sufficient nexus in time between the provocative act and the fatal response and that any weapon used should be immediately to hand and not retrieved from elsewhere for use. The longer the lapse in time between the provocation and the response, the greater the evidence that the defendant was not labouring under a sudden passion or loss of self–control at the time of the killing.
3.27     While the requirement of a time nexus has been consistent, judicial interpretation of it has not been entirely consistent. In Oneby^[41] the "cooling period" was held to be variable on the grounds that "passions in some persons are stronger and their judgments weaker than in others; and by consequence it will require a longer time in some, for reason to get the better of their passions, than in others".^[42]
3.28     This subjective approach was followed in Lynch.^[43] The verdict was manslaughter. Two considerations were of particular relevance. First, the defendant's father gave evidence that the defendant always carried the knife with him. Had he left to get the knife and then returned with it this would have been evidence of contrivance and design and weakened the assertion that he was acting under the passion provoked by the punch received.^[44] The second was the judge's direction to the jury:

If you think that there was not time and interval sufficient for the passion of a man proved to be of no very strong intellect to cool, and for reason to regain her dominion over his mind, then you will say that the prisoner is guilty only of manslaughter.^[45]

This approach is consistent with the focus of the early case law on the presence or absence of "malice prepensed".

3.29     By the early twentieth century the focus had become less subjective following the emergence of the "reasonable man" in Welsh.^[46] In 1913 in Alexander^[47] a two hour time lapse was held to be too long and the court made no reference to the individual make-up of the defendant. In Mancini^[48] Viscount Simon stated that it was of particular importance:

(a) to consider whether a sufficient interval has elapsed since the provocation to allow a reasonable man time to cool, and

(b) to take into account the instrument with which the homicide was effected, for to retort, in the heat of passion induced by provocation, by a simple blow, is a very different thing from making use of a deadly instrument like a concealed dagger.^[49]

3.30     This more objective approach to the lapse of time coincides with the period in which the mens rea for murder was being redefined, removing the requirement for "wickedness" and "bad spirit" and focussing instead on pre-meditated intent. In addition, changing perceptions of what is permissible social behaviour have played a role. Whereas in Lynch^[50] the defendant's use of a knife was accepted because he was found to have carried it habitually, by the mid twentieth century carrying a knife was not socially acceptable and therefore much less likely to be excused as a proportionate response to a provoking punch. ^[51]

A proportionate response

3.31     The requirement of a proportionate response to the provocation has also been a constant element throughout the history of provocation. However, as with the proximity requirement, the interpretation of the requirement has evolved.
3.32     In Oneby^[52] the judge explained the approach to proportionality by explaining the reasoning behind two previous cases. The first case^[53] involved two boys fighting. Boy A scratched boy B's face causing a great deal of bleeding from the nose. B ran home to his father. On seeing his son all bloody, the father picked up a "cudgel" and ran three quarters of a mile to boy A whereupon he struck him on the head and he died. The verdict handed down in the case was manslaughter. This verdict was adjudged to be the result of two factors:

1) that although there had obviously been considerable time between the provocative act and the response, there had been continuing "sudden passion" until the time of the killing; and

2) that the father had only used a little club^[54] to beat boy B "from which no such fatal event could be reasonably expected".^[55]

The judge also cited Turners Case^[56] in which a servant boy failed to clean a woman's clogs well, as a result of which the woman's husband hit the boy with a clog on the head and killed him. Although there was no other provocation it was held to be manslaughter because "the clog was so small, there could be no design to do any great harm to the boy, much less kill him".^[57]

3.33     In Oneby^[58] the length of time permissible between the provocative act and the response was said to vary because "it will require a longer time in some, for reason to get the better of their passions, than in others".^[59] This test was applied in Lynch^[60] where in summing up it was stated that the jury should consider the fact that the defendant "proved to be of no very strong intellect" in deciding whether there was a sufficient time interval for his passions to cool.^[61]
3.34     In the later case of Thomas^[62] in 1837 the drunkenness of the accused was also held to be relevant to deciding whether or not intention to kill had been formed. In this case the defendant had drunkenly been challenging anyone to strike him, saying he "would make them repent it".^[63] In summing up the judge outlined that "if a man makes himself voluntarily drunk, that is no excuse for any crime he may commit whilst he is so".^[64] However, he went on to state that "drunkenness may be taken into consideration in cases where what the law deems sufficient provocation has been given, because the question is . . . whether the fatal act is to be attributed to the passion of anger excited by the previous provocation, and that passion is more easily excitable in a person when in a state of intoxication than when he is sober. So, where the question is, whether words have been uttered with a deliberate purpose or are merely low and idle expressions, the drunkenness of the person uttering them is proper to be considered".^[65]
3.35     The judge here suggests that drunkenness can be considered for two purposes: if the defendant was acting under passion and in considering any behaviour which may display an intent, in this case, the uttering of words.
3.36     Once again the emphasis, in these early eighteenth century cases, is on an absence of wicked intent. Proportionality is relevant only in relation to demonstrating this lack of wickedness. One obviously acting under a "sudden passion" and therefore without the necessary maliciousness, was much more likely to receive a manslaughter verdict, even if his actions may have been somewhat excessive in response to the provocation received.
3.37     A shift of emphasis starts to emerge in the mid nineteenth century. In Kirkham^[66] the analysis is still explicitly focussed on the lack of malice,^[67] but the judgment concludes that the defendant:

must be excused if the provocation was recent and he acting on its sting, and the blood remained hot, but you must consider all the circumstances, the time which elapses, the prisoner's previous conduct, the deadly nature of the weapon, the repetition of the blows, because, though the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being, and requires that he should exercise a reasonable control over his passions.^[68]

3.38     Following the emergence of the "reasonable man" in Welsh^[69] the courts increasingly emphasised the need for a "reasonable relationship" between the provocation and the response.^[70] Whereas, initially, proportionality had been employed to test whether or not the killing had been perpetrated with the "wickedness" associated with malice prepensed, over time it was transformed into an objective test. Where there was no reasonable relationship between the provocation and the response, and the "reasonable man" would not have reacted to the provocation as the defendant did, the defence failed.^[71]

Emergence of the Reasonable Man

3.39     In 1869 in Welsh^[72] Keating J said:

The law is, that there must exist such an amount of provocation as would be excited by the circumstances in the mind of a reasonable man, and so as to lead the jury to ascribe the act to the influence of that passion.

Although Keating J believed he was only re-stating existing law (and to some extent this was true as his decision clarified earlier attempts to confine the subjective nature of the defence),^[73] the case marks an important point in the development of provocation.

3.40     In a number of cases between 1869 and the 1957 Act the courts strictly applied the reasonable man test and refused to allow consideration to be given to the effect of the "provocation" on mentally deficient individuals,^[74] those with hot-tempered dispositions^[75] and unusually excitable or pugnacious persons.^[76] The test was what effect the provocation would have had on the "reasonable man", and the "reasonable man" was not to be endowed with specific characteristics of the individual that may have increased the severity of the provocation.^[77]
3.41     The extent to which drunkenness could be considered was also restricted in McCarthy.^[78] Before Welsh^[79] it could be considered in relation to whether the defendant acted out of passion as a result of the provocation. In McCarthy,^[80] however, it was held that there is no distinction between "a person who by temperament is unusually excitable or pugnacious and one who is temporarily made excitable or pugnacious by self-induced intoxication".^[81] The court, however, left open the possibility that drunkenness could be considered if it were "such a complete and absolute state of intoxication as to make [the defendant] incapable of forming the intent charged".^[82]
3.42     The late nineteenth and early twentieth centuries saw the courts limiting provocation through a new and restricted understanding of mens rea for murder and the introduction of the "reasonable man". It is possible that these restrictions may have been related to a new social order evolving due to the presence of a police force. The Metropolitan Police Force was introduced in 1829 but it was not until the 1856 Police Act that rural forces became obligatory. As the country adapted to the new social order, it would appear the courts found a new legal focus. However, it is not clear how consistent the courts were in their application of the reasonable man test in practice. The Royal Commission on Capital Punishment 1949 – 1953 Report, noted the conflicting tendencies in the evolution of provocation law in England.

On the one hand the courts have steadily limited the scope of provocation recognised as adequate to reduce murder to manslaughter, and have subjected it to increasingly strict and narrow tests. On the other hand the greater severity of the law has been tempered by leniency in its application. Judges have instructed juries in terms more favourable than the letter of the law would allow. Juries, sometimes with the encouragement of the Judge, sometimes in the face of his direction, have returned verdicts of manslaughter where, as a matter of law, the most favourable interpretation of the evidence could scarcely justify them in doing so. Successive Home Secretaries have been ready to recommend the exercise of the Prerogative of Merby where the prisoner has been convited of murder but has acted under substantial provocation of a kind or degree insufficient in law to reduce the crime to manslaughter.

Each of these tendencies reflects corresponding developments in the evolution of society … the distinction between murder and manslaughter was first elaborated at a time when the common mischief to be guarded against was the occurrence of set fights with deadly weapons, and it had later to be adapted to a changed situation, where the common mischief was the taking of inordinate vengeance for comparatively trifling injuries, such as returning a box on the ear by a pistol shot or a deadly stab … In a more civilised society the citizen was expected to react less violently to provocation that was not gross.^[83]

Conclusion

3.43     Examination of the development of the defence reveals that before 1957 it had no consistent moral basis. At different times the case law vacillated between viewing the defence on the one hand as a partial justification and on the other as a partial excuse. In some cases the focus was on whether the defendant had the necessary mens rea and/or was sufficiently blameworthy, while in others it was on the conduct of the provoker and whether it constituted sufficient "provocation" to justify the response of the defendant.^[84] The problematic nature of this compromise did not go unnoticed:

The rule of law that provocation may, within narrow bounds, reduce murder to manslaughter, represents an attempt by the courts to reconcile the preservation of the fixed penalty for murder with a limited concession to natural human weakness, but it suffers from the common defects of a compromise.^[85]

It would seem, as Horder asserts, that the partial defence of provocation has developed not on a defined moral basis, but rather as a response to the gravity of "provocation" according to the natural feelings of past times. The lack of a consistent moral basis continues to influence the development of the law.

Note 1    J Horder, Provocation and Responsibility (1992) pp 6-9.    [Back]

Note 2    Ibid, at p 23.    [Back]

Note 3    In this Part referred to as “the 1957 Act”.    [Back]

Note 4    (1953) Cmd 8932 at para 124.    [Back]

Note 5    J Horder, Provocation and Responsibility (1992) p 6.    [Back]

Note 6    Smith and Hogan, Criminal Law (10th ed 2002) p 210, fn 1. In addition, see J Dressler “Provocation: Partial Justification or Partial Excuse?” (1988) 51 MLR 467; F McAuley “Anticipating the Past: The Defence of Provocation in Irish Law” (1987) 50 MLR 133.    [Back]

Note 7    As referred to in Oneby (1727) 2 Ld Raym 1485, 1487; 92 ER 465.    [Back]

Note 8    Ibid, at p 1487.    [Back]

Note 9    Ibid, at pp 1487-8.    [Back]

Note 10    Thomas (1837) 7 C&P 817, 819; 173 ER 356.    [Back]

Note 11    Ibid.    [Back]

Note 12    Welsh (1869) 11 Cox CC 336, 337.    [Back]

Note 13    Semini [1949] 1 KB 405.    [Back]

Note 14    Campbell [1997] 1 Cr App R 199, 207.    [Back]

Note 15    Mawgridge [1707] Kel J 119, 135; 84 ER 1107.    [Back]

Note 16    One can only speculate how such behaviour would have been viewed by the agricultural labourer. Such “trifling” affronts by one member of the nobility to another probably had a significance which would puzzle the modern observer.    [Back]

Note 17    [1707] Kel J 119; 84 ER 1107.    [Back]

Note 18    Ibid, at pp 135-137.    [Back]

Note 19    “The Doctrine of Provocation” (1976) 35 CLJ 292 at pp 293-4.    [Back]

Note 20    Provocation and Responsibility (1992) p 25.    [Back]

Note 21    [1707] Kel J 119, 131; 84 ER 1107.    [Back]

Note 22    (1832) 5 C&P 324, 324-5; 172 ER 995.    [Back]

Note 23    Ibid.    [Back]

Note 24    (1833) 6 C&P 157; 172 ER 1188.    [Back]

Note 25    Ibid, at p 159.    [Back]

Note 26    (1869) 11 Cox CC 336.    [Back]

Note 27    Ibid, at p 339.    [Back]

Note 28    For example: Alexander (1913) 9 Cr App R 139; Lesbini [1914] 3 KB 1116; Mancini [1942] AC 1; Holmes [1946] AC 588; McCarthy [1954] 2 QB 105.    [Back]

Note 29    See the judgment of Lord Reading CJ, citing Welsh, in Lesbini [1914] 3 KB 1116, 1120.    [Back]

Note 30    (1871) 12 Cox 145.    [Back]

Note 31    Ibid, at p 147.    [Back]

Note 32    (1913) 9 Cr App R 139.    [Back]

Note 33    Ibid, at p 141.    [Back]

Note 34    [1946] AC 588.    [Back]

Note 35    Holmes [1946] AC 588, 600.    [Back]

Note 36    Ibid.    [Back]

Note 37    [1954] 2 QB 105.    [Back]

Note 38    Ibid, at p 106.    [Back]

Note 39    Ibid, at p 109.    [Back]

Note 40    See para 3.17.    [Back]

Note 41    (1727) 2 Ld Raym 1485; 92 ER 465.    [Back]

Note 42    Ibid, at p 1494. Cited with approval by Lord Clyde as support for his view in Smith (Morgan) [2001] 1 AC 146, 177.    [Back]

Note 43    (1832) 5 C&P 324; 172 ER 995.     [Back]

Note 44    As was held in the case of Hayward (1833) 6 C&P 157; 172 ER 1188.    [Back]

Note 45    (1832) 5 C&P 324, 325; 172 ER 995.    [Back]

Note 46    (1869) 11 Cox CC 336.    [Back]

Note 47    (1913) 9 Cr App R 139.    [Back]

Note 48    [1942] AC 1.    [Back]

Note 49    Ibid, at p 9.    [Back]

Note 50    (1832) 5 C&P 324; 172 ER 995.    [Back]

Note 51    Under current law this would constitute a criminal offence. See Prevention of Crime Act 1953, s 1.    [Back]

Note 52    (1727) 2 Ld Raym 1485; 92 ER 465.    [Back]

Note 53    Cited only as 12 Co. 17, see Oneby (1727) 2 Ld Raym 1485, 1498; 92 ER 465.    [Back]

Note 54    The words actually used in the original report are “little cudgel” see Oneby (1727) 2 Ld Raym 1485, 1498; 92 ER 465.    [Back]

Note 55    Ibid.    [Back]

Note 56    Comberbatch 407, 8.    [Back]

Note 57    See Oneby (1727) 2 Ld Raym 1485, 1499; 92 ER 465.    [Back]

Note 58    2 Ld Raym 1485; 92 ER 465.    [Back]

Note 59    Ibid, at p 1494.    [Back]

Note 60    (1832) 5 C&P 324; 172 ER 995.    [Back]

Note 61    Ibid, at p 325.    [Back]

Note 62    7 C&P 817; 173 ER 356.    [Back]

Note 63    Ibid, at p 818.    [Back]

Note 64    Ibid, at p 820.    [Back]

Note 65    Ibid.    [Back]

Note 66    (1837) 8 C&P 115; 173 ER 422.    [Back]

Note 67    Ibid, at p 117.    [Back]

Note 68    Ibid, at pp 118-119.    [Back]

Note 69    (1869) 11 Cox CC 336, 338.    [Back]

Note 70    See generally Mancini [1942] AC 1, Duffy [1949] 1 All ER 932 and McCarthy [1954] 2 QB 105.    [Back]

Note 71    See McCarthy [1954] 2 QB 105 and Bedder [1954] 1 WLR 1119.    [Back]

Note 72    (1869) 11 Cox CC 336.    [Back]

Note 73    See Kirkham (1837) 8 C&P 115, 118-9, where it was observed that the law “considers man to be a rational being, and requires that he should exercise reasonable control over his passions”; 173 ER 422.    [Back]

Note 74    Alexander (1913) 9 Cr App R 139.    [Back]

Note 75    Lesbini [1914] 3 KB 1116.    [Back]

Note 76    Mancini [1942] AC 1.    [Back]

Note 77    See Bedder [1954] 1 WLR 1119 where the victim, a prostitute, teased the defendant when he failed to have sexual intercourse with her because he was impotent. The court held that his impotence was irrelevant because the test was that of the reasonable man, not the reasonable man in the specific circumstances of the defendant.    [Back]

Note 78    [1954] 2 QB 105.    [Back]

Note 79    (1869) 11 Cox CC 336.    [Back]

Note 80    [1954] 2 QB 105.    [Back]

Note 81    Ibid, at p 112.    [Back]

Note 82    Ibid.    [Back]

Note 83    See Royal Commission on Capital Punishment 1949 – 1953 Report (1953) Cmd 8932 at paras 134–135.    [Back]

Note 84    For further argument see generally: J Dressler, “Provocation: Partial Justification or Partial Excuse?” (1988) 51 MLR 467; F McAuley, “Anticipating the Past: The Defence of Provocation in Irish Law” (1987) 50 MLR 133.    [Back]

Note 85    See Royal Commission on Capital Punishment 1949 – 1953 Report (1953) Cmd 8932 at p 53.    [Back]