NCJ Number
55291
Journal
Criminal Law Review Dated: (NOVEMBER 1978) Pages: 662-672
Date Published
1978
Length
11 pages
Annotation
PROVOCATION AS A DEFENSE AGAINST A MURDER CHARGE IN ENGLISH COURTS, WHERE CONVICTION OF MURDER CARRIES A MANDATORY DEATH SENTENCE, IS DISCUSSED.
Abstract
IN THE RECENT ENGLISH COURT CASE OF D.P.P. VERSUS CAMPLIN (1978), THE INCIDENT FOR WHICH A CHARGE OF MURDER WAS BROUGHT INVOLVED A 15-YEAR-OLD BOY (CAMPLIN) KILLING A MAN BY HITTING HIM ON THE HEAD WITH A PAN. THE DEFENDANT CLAIMED HE WAS PROVOKED TO VIOLENCE, AND THE QUESTION WHICH AROSE FOR APPEAL WAS WHETHER THE JURY SHOULD CONSIDER WHETHER A REASONABLE 'MAN' OR A REASONABLE 'BOY' WOULD HAVE DONE AS CAMPLIN DID. THE QUESTION IS DERIVED FROM THE FOLLOWING STATEMENT IN SECTION 3 OF THE HOMICIDE ACT OF 1957: '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 HIS SELF-CONTROL, THE QUESTION WHETHER THE PROVOCATION WAS ENOUGH TO MAKE A REASONABLE MAN DO AS HE DID SHALL BE DETERMINED BY THE JURY.' THE PROVOCATION DEFENSE IS CRUCIAL, BECAUSE IN ENGLAND CONVICTION FOR MURDER CARRIES A MANDATORY DEATH PENALTY. IN CONSIDERING THE CAMPLIN APPEAL, THE HOUSE OF LORDS RULED THAT THE REASONABLENESS OF A PARTICULAR DEFENDANT'S REACTION TO PROVOCATION MUST BE MEASURED BY A STANDARD THAT WOULD APPLY TO HIS REASONABLE PEERS. ACCORDING TO THE COURT RULING, PROVOCATION MUST NOT ONLY BE ESTABLISHED BY SHOWING THAT THE LOSS OF SELF-CONTROL WAS REASONABLE FOR A PERSON WITH THE ACCUSED'S CHARACTERISTICS, BUT MUST ALSO SUCCEED IN SHOWING THAT THE ACCUSED'S SPECIFIC REACTION TO THE PROVOCATION WAS REASONABLE. THE DIFFICULTIES OF MAKING JUDGMENTS ON THE BASIS OF THE PROVOCATION TEST ARE NOTED IN THE NEW ZEALAND CRIMINAL LAW REFORM COMMITTEE'S REPORT ON CULPABLE HOMICIDE. THE NEW ZEALAND REPORT THAT THE MANDATORY DEATH PENALTY FOR MURDER BE ABOLISHED, ALONG WITH THE PROVOCATION DEFENSE, AND THAT VARIOUS DEGREES OF CULPABILITY BE ESTABLISHED FOR CAUSING THE DEATH OF A PERSON. PROVOCATION MIGHT THEN BE ARGUED AS A FACTOR IN THE DEGREE OF CULPABILITY RATHER THAN THE FACT OF CULPABILITY. THE IMPLICATIONS OF THIS REPORT FOR ENGLISH LAW REFORM ARE DISCUSSED. CASE LAW AND REFERENCES ARE CITED. (RCB)