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WARREN J BROOKBANKS[*]
Provocation is a controversial defence that has generated animated debate since its first formulation in English law, over 300 years ago. It is typically characterised as a humane concession to human infirmity and imperfection[1] and reflects the long held view that out of respect for human failings or frailty, the law should ‘not require more from an imperfect creature than he can perform’.[2]
Of course, the original justification for this liberal partial exoneration was the fact that the ‘undiscriminating inflexibility’[3] of the old law on murder meant that the death sentence had to be passed on every defendant convicted of murder. This offered some protection to offenders who had reacted with homicidal rage to some seriously provocative act (eg a husband catching his wife in flagrante delicto, or a violent physical assault) judged sufficient to cause a reasonable man to lose his self-control and which did cause the offender to lose his.
Unfortunately, not all defendants seeking the protection of this rule fared equally well. Little can be done to assist the person who was judged to be short-tempered, overly sensitive or ‘unusually excitable or pugnacious’.[4] In that case his aberrant or otherwise defective personality effectively became a cause for condign punishment; and insofar as it removed the character of ‘reasonableness’ surrounding his uncontrolled response to the provocative act (and later words or gestures), justified the offender being visited with the full weight of the law.[5] In the case of offenders who are habitually short-tempered, morbidly jealous, drunk or under the influence of drugs, provocation is taken away because they are judged not to have lost self-control, because it was never there to be lost.[6]
Over the last 100 or so years, numerous courts and legislators in many common law jurisdictions have endeavoured to further refine the rule by removing some of its harsher manifestations and making it more accessible to a wider band of ‘explosive’ defendants, particularly those claiming to have some mental impairment or aberration making them more susceptible to provocative words and gestures. However, it must be said that the overall effect of this well-intentioned tinkering has been to add to the complexity of provocation as a partial excuse, increase uncertainty as to its legal elements, and to render it almost impossible to satisfactorily direct juries on. Indeed, the now widely held judgment is that provocation is so flawed that legislative reform is the only realistic means of salvaging the defence, if that is a desired outcome, or at least of re-evaluating its usefulness within the overall ambit of the criminal law.
In recent months the call to reform provocation has become stronger. In 2004 the English Law Commission in a report entitled ‘Partial Defences to Murder’ [7] expressed the view that provocation is flawed to an extent beyond reform by the courts, a view shared by a majority of the Privy Council in AG for Jersey v Holley.[8] On 21 July 2005, the English government announced the first major review of the English homicide laws for more than 50 years. The review will be led by the Home Office and will focus on elements of murder including the partial defences and the issue of provocation.
In Australia the defence of provocation was abolished in Tasmania in 2003. The Victorian Law Reform Commission (VLRC) published a report on ‘Defences to Homicide’ in November 2004, which recommended the abolition of provocation (together with reforms to self-defence).[9] The launch of the Report coincided with publicity about the case of James Ramage who killed his estranged wife after she allegedly teased him about a new lover. Ramage, an archetypal jealous spouse, was acquitted of murder and convicted of manslaughter. The case became a rallying point for reform, reflecting a widespread perception that provocation was simply a hangover from a previous era that privileged men in abusive relationships and allowed them to get away with murder. The case may have heightened the Victorian government’s willingness to adopt the VLRC recommendations which were on the table at the time. Provocation as a partial defence to murder was abolished in Victoria in 2005.[10]
In other jurisdictions where provocation continues to be available, there is a rising sentiment that it is not working and is, at least, in need of reform. Where abolition has occurred, sentencing judges have a discretion to take provocation into account in deciding the length of any finite sentence for murder. However, assuming reform is the generally approved option, what shape any such reform should take is an open question about which there is likely to be substantial disagreement.
In the ongoing critique of the provocation defence, debate tends to focus on two principal issues, namely, the factual question of whether there was a relevant loss of self-control which caused the killing and the evaluative question of whether the loss of self-control was reasonable.
For the purpose of this discussion I focus on the psychological aspects of the defence and ask ‘what does it mean to lose self-control?’ My thesis is that while loss of self-control is axiomatic to the operation of the defence, the concept is itself poorly understood and operates largely as a cognitive heuristic device that disguises a host of troubling, and largely unaddressed, questions. I argue that loss of self-control is not merely a factual question but, because of its potential for abuse as a fundamental construct in provocation, must be evaluated within a framework of scientific inquiry which enables us to more accurately test the efficacy of claims that self-control was actually ‘lost’. This, I would suggest, will mean reflecting more purposively on the true character of loss of self-control and considering where that notion fits within a spectrum of addictive and impulse control dysfunction. It is my belief that a significant element in the critique of the provocation defence is an underlying concern that while many defendants who may successfully claim provocation are simply ‘out of control’, the law has no means of differentiating between simple rage giving rise to uncontrolled behaviour and a genuine pathological impulse that may be indicative of a possibly treatable impulse control disorder.
The article endeavours to show that a better understanding of the complexity of morbid impulses could be helpful in assisting lawmakers to restructure the provocation defence. The thesis developed here is that by trying to uncover the true psychological precursors to loss of self-control, we may be in a better position to construct a more coherent subjectivist account of provocation, thus eliminating many of the problems that currently surround the evaluative elements of the defence.
I begin by exploring the idea of self-control as a heuristic device, and the implications for legal analysis. I then consider the problem of rage and whether it can or should be accommodated within a provocation framework. The article wll then considers the implications of research on addiction and impulse control disorder as morbid impulses and other psychological factors that may have relevance to provocation. I conclude by suggesting some ways in which the idea of loss of control might be better accommodated within a reworked provocation doctrine.
A central claim in this paper is that the axiomatic notion of loss of self-control is essentially a cognitive heuristic device employed in the provocation defence to avoid the need for a closer and more critical analysis of the causes of an explosive homicidal response. In the vast bulk of cases where provocation is raised, loss of self-control, uncritically presented, becomes a given, provided there is some evidence to support it. For the most part, its aetiology is not further investigated. In this sense the idea of loss of self–control has become a legal sinecure, offering profit to those who claim it without any particular duties attending its use. It avoids the need to investigate other conscious and unconscious variables and processes, or to examine whether other conflicts, anxieties or cognitive events may have contributed to the explosive conduct and, if so, in what measure.
This minimalist approach to the aetiology of provocation involves employing heuristic reasoning, in that ‘loss of self-control’ becomes the basic rule for decision and a simple cognitive device for calculating whether the conditions for partial exculpation have been met. In particular, in employing this simple rule of thumb, trial judges need not engage more complex questions, such as ‘in what sense was control ‘lost?’’ or ‘what measure of impulse control did the offender actually possess before they ‘lost’ it?’ or ‘could the offender have recovered their self-control had they chosen to?’ In most jurisdictions juries seem to uncritically accept evidence of loss of control and proceed directly to the evaluative question of whether a ‘reasonable person’ would have lost self-control in the same circumstances. Thus there is a sense that ‘loss of self-control’, while not necessarily a particularly apt description of what has actually taken place, is deemed to be ‘good enough’ for the purposes of applying the legal rule. This is the sense in which heuristic reasoning is commonly employed by clinicians and other human decision-makers.[11] As ‘aids to calculation’, heuristics are simply tough rules of thumb used to solve problems. Yet as useful as they might be in clinical judgment, by eliminating the need to solve the same or similar problems over and over again,[12] their role in legal settings is seriously to be questioned. In particular, it is doubtful whether a major decision concerning loss of liberty should hang on a simple rule of thumb, albeit drawn from personal knowledge and experience, but which tells nothing of the complex mental processes which are engaged when a person reacts with homicidal violence.
Other writers have observed how other simple, and equally unrevealing heuristics — ‘my head just went’, ‘I lost it’, ‘I went into one’ — are commonly employed by violent offenders in an attempt to mask specific rages by conferring on them, in the popular mind, the attributes of epilepsy.[13] When pushed to explain what was ‘lost’ or what ‘one’ the actor went into, the invariable answer is ‘I just blacked out’, to which Dalrymple retorts ‘O epilepsy, what crimes are committed in thy name!’ Dalrymple observes a sequence, whereby a pattern of conduct is noticed and given a name, for example, ‘road rage’. This then becomes a bona fide medical diagnosis, which then becomes an excuse or justification. For Dalrymple the essential weakness of this process lies in the fact that all of us, when about to commit an act we know in advance to be wrong, rehearse justifications for our ensuing ‘wickedness’. However, by increasing the repertoire of justifications available to us for our own misconduct, a necessary result is an increasing deterioration in social behaviour. He suggests the more rage is a diagnosis the more rage there will be.
The point for provocation is that the availability of a ‘loss of control’ heuristic may have conferred an implicit excuse for the impugned conduct before the merits of the claimed provocation have been forensically examined. Thus the offender is presented as one suffering from an acknowledged syndrome, namely, ‘loss of self control’, regardless of the character of the alleged ‘loss’ or attempts by the offender to take control of his anger. The task of the fact-finder becomes merely one of evaluation of the claim from a purely factual perspective, without any need to examine the merits of the construct itself. To this extent the ‘loss of self control’ heuristic has become virtually institutionalised within provocation jurisprudence, with almost no analysis as to what it means or even whether it is a valid construct. As such it has become a pretext for the expression of rage but without the accountability controls that typically accompany common cases of losing one’s temper. If the jury accepts that control was ‘lost’, that is enough to engage the factual question, regardless of the merits of the psychological processes involved in bringing about the loss.
The point I wish to make here is that while heuristic reasoning is endemic to decision-making at many levels, and may be instrumental in simplifying repetitive decision-making tasks, it should have no role to play in legal decision-making. This may mean that instead of reciting as a mantra the requirement that the offender be provoked ‘to lose his self-control’, we take time to examine what was distinctive about this offender’s mental presentation that justifies the judgment that they were not in control when the prohibited event occurred. Such an inquiry may reveal features of the accused’s mental processes that point to clear pathology for which therapeutic intervention and treatment may be justified. Alternatively, it may reveal an offender who has simply lost their temper because they possess a ‘vile, ungovernable, abusive, threatening and ill-tempered disposition’.[14] In both scenarios the loss of self-control may be evident, yet only in the first should it demand a concession to human frailty.
Holton and Shute[15] usefully observe that self-control is a broadly-based concept that cannot always be analogised to succumbing to a temptation, for example, to kill. On this view self-control may be needed, for example, in a situation of danger, to overcome the fear that would otherwise make a person flee.[16] Essential to the notion of self-control is an attempt to overcome an inclination that would otherwise move a person. It is the ability to bring one’s actions into line with one’s judgment. However, this account must be qualified by the realisation that a feature of anger, temptation etc is that they corrupt judgment. Therefore, self-control requires an actor to keep judgments free from such corruption or, if that is not possible, to develop strategies to enable the actor to avoid acting on corrupt judgments.[17]
Empirical evidence suggests that we are more effective in overcoming temptation if we have formed a prior commitment (ie as an act of the will), particularly where that commitment includes specific intentions for how it is to be implemented.[18] These might include, for example, a commitment not to rise to the bait, not to resort to violence except in self-defence etc.
This analysis leads the author to conclude that there is a distinct faculty of self-control which enables agents to do what they judge best in the face of strong inclinations to the contrary. Typically, the faculty works by employing prior resolutions.[19] Although, as they note, this view of a self-control ‘faculty’ is largely based on a ‘folk psychology’ model, support for it can also be derived from psychological research, which suggests that self-control may work in much the same way as a muscle: the more it is exercised the more efficacious it becomes.
Importantly, for the purposes of this discussion, there is evidence that self-control is a developmental concept, the healthy development of which is a strong predictor of later success in a range of life skills. Furthermore, it is possible to develop strategies to obtain self-control.[20] However, factors endemic to an individual, like depression, anxiety, tiredness and the effects of alcohol, may have the effect of diminishing an actor’s ability to act in line with their resolutions and, more importantly, may operate to undermine or destroy self-control.
If we accept for argument’s sake that self-control is a ‘faculty’ that can be exercised, then it would seem to follow that as a faculty, it may also be undermined, or even destroyed. The manner in which self-control may be ‘lost’, may be critical to its availability as a partial exculpatory claim, in a way seldom acknowledged by the courts. Holton and Shute suggest that there are two possible ways in which this may work, only one of which could lead to the provocation defence being invoked. The first explanation suggests that at the time of the provocation, the agent lacked sufficient
self-control. On this basis provocation can be said to have given rise to violent inclinations which overwhelmed what self-control the agent had and moved them to perform the violent act. The second explanation suggests that at the time of provocation the agent did have sufficient self-control, but that the provocation gave rise to violent inclinations and undermined the self-control that would otherwise have restrained the inclinations to violence[21] Importantly, in the second model, without the undermining effect of the provocation, the agent’s self-control would have been sufficient to have prevented the violent response. Thus it is only in the second case that it is possible to speak of the agent losing their self-control as a result of provocation. Since a normative condition of provocation as a defence is loss of self-control, only in the second scenario can provocation be properly invoked [22]
Assuming the correctness of this analysis, we now have a conceptual basis for examining a fundamental problem for provocation, namely, the problem of rage.
Rage in an offender is often the most visible feature of loss of self-control. Indeed, it is difficult to visualise the idea of loss of self-control without some mental appeal to rage or an extreme state of anger. At common law the idea of a sudden and explosive loss of control, implicit in the idea of rage, was expressed in the requirement that the offender must have been acting in ‘hot blood’ or ‘in the heat of passion’ at the time of the homicidal assault. It is hard to imagine that ‘heat of passion’ meant anything other than that the offender was in an uncontrolled rage. Yet the law is clear that mere rage may not suffice to ground excusatory provocation. In R v Smith (Morgan)[23] Lord Hoffman stated that ‘a tendency to violent rages or childish tantrums is a defect of character rather than an excuse’.[24] Similarly, in the New Zealand case of R v Warren[25] the Court of Appeal appears to suggest that ‘mere anger’ is an insufficient basis for a successful provocation defence.[26] Nevertheless, to say that ‘a tendency to violent rages’ or ‘mere anger’ is insufficient for provocation is ultimately not terribly helpful. On the basis of the earlier discussion, two problems would seem to emerge. First, if it is accepted that provocation can be invoked only where there has been a genuine loss of self-control, should it matter that the loss was manifested as a violent ‘rage’ as opposed to some less dramatic form of loss of self-control (eg a more deliberative and apparently controlled response)? Second, what if the offender’s ‘tendency to violent rages’ was the product of a morbid impulse control disorder and not simply a character defect? Should he be penalised because at the time of the violent rage he simply lacked sufficient self-control, according to Holton and Shute’s first scenario? For example, the offender may suffer from a catathymic crisis[27] or a recognised intermittent explosive disorder which it is impossible for him to control.[28] In such circumstances the descriptors, a ‘violent rage’ or ‘mere anger’ may be inadequate to describe and assign responsibility for complex mental processes that may bear much closer examination, regardless of whether self-control was actually lost, or insufficiently present in the first place. Furthermore, rage and anger are increasingly understood as separate affects with their own treatments.[29] Some violent people may act in a style to which they have been trained. Sometimes extreme violence is a learned response to stress and difficulty which has been modelled by parents or other authorities.[30]
The problem with rage as a descriptor of loss of self-control is, as one writer suggests, that it has become a ‘quasi-neurological explanation for outbursts of aggressive and violent conduct,’ especially among adults.[31] As such, rage, in this quasi-neurological sense, may be resorted to in order to explain a wide range of dysfunctional conduct, resulting in death or injury. Dalrymple suggests that ‘everyday situations’ may bring on an irresistible impulse to attack others, as in road rage, air rage, even grocery-cart rage![32] Rage, it seems, covers a multitude of sins, not all of which are exculpatory, yet some of which clearly are. The challenge for ongoing analysis is to decide which sorts of rage reactions should be favoured sufficient to amount to a partial excuse. Yet this is a complex challenge. Some individuals lacking in social skills and with poor psychological functioning may more quickly resort to extreme forms of aggression in a desperate effort to win a particular status or satisfaction.[33] Similarly, people who have suffered minor brain damage and are lacking in certain skills may resort to violence more quickly than others. For organic reasons related to the brain trauma suffered they may be more prone to experiencing unpleasant thoughts and emotions, including rage and paranoia.[34] On this basis rage, and its sequelae of violence, may take many different forms. Its seriousness will depend on many factors interacting in a complex manner, in particular the offender’s mental health, their acquired learned behaviours, the actual social context and other environmental factors (including alcohol and availability of weapons).[35]
Unfortunately, because legal convention sometimes appears to favour particular types of rage responses and not others, perceptions of inequality may arise. Some writers have pointed to the discriminatory character of successful provocation defences based on killing in anger. Bernadette McSherry notes that while killing in anger (rage) is often tolerated by the courts in provocation cases involving male defendants in contexts of sexual intimacy, killing based on other emotions, such as compassion or fear of future abuse, is not.[36] Arguably implicit is a cultural assumption about unruly women being somehow blameworthy or partially deserving their own deaths.[37]
McSherry concludes that basing provocation on a partial loss of self-control implies that some defendants who kill their partners could have controlled themselves, but lacked the strength of will to do so. She suggests that the criminal law should be about setting standards of self-control and punishing those who breach them rather than excusing people from criminal responsibility because they killed in anger.[38]
The point is well made and is consistent with the approach taken by Shute and Horton. If the truth is that an offender simply did not possess sufficient
self-control and what self-control they did possess was overwhelmed by the provocation, then a case may be made that the person needs assistance to develop strategies in order to obtain self-control or at least psychological examination to determine the effects of morbid impulses, depression, fatigue, anxiety etc in order to minimise the risk of repetition of homicidal uncontrolled violence. This could occur within the framework of administration of a sentence for murder, with the incentive that significant improvement in the acquisition of self-control strategies could influence the parole board or equivalent to consider parole earlier than might otherwise be the case.
Where, on the other hand, normal self-control has been lost as a result of provocation, mitigation of the offence to manslaughter may still be available, in order to reflect the fact that the undermining of the offender’s self-control was an unavoidable outcome of the provocation for which the offender should not be held responsible. Again, evidence of any morbid conditions affecting impulse control, would be assessed to determine the character of any rehabilitative regime, but would not affect eligibility for mitigation, provided normal self-control was present before the provocative event. A catathymic crisis would be such an event, since its singular non-repetitive nature would militate against any judgment that the offender was typically prone to loss of self-control.
In a period in which manifestations of aggressive and violent conduct are altogether too common and socially destructive, the partial excuse of loss of self-control struggles for legitimacy. Its continued existence and regular utilisation in the courts arguably points to a wider problem of a collective loss of self-control manifested in a growing tendency to blame others for one’s failures[39] and unwillingness to accept responsibility for one’s own insufficiencies. Indeed, it could be argued that the widespread judicial willingness to mitigate culpability in cases of ‘provoked’ killings, reflects a broader cultural reluctance or inability to assign moral blame.[40] As Alan Dershowitz has suggested, the proliferation of ‘abuse’ excuses ‘may be a symptom of a national abdication of personal responsibility’.[41] In a sense, provocation is the archetypal ‘abuse excuse’, yet one that has, thus far, avoided the critical rejection that has accompanied other such excuses.
In the realm of homicide law, the ‘self-control’ heuristic mediates a perception that people who are uncontrollably angry and kill do so, not principally for reasons of angry retaliation, but rather, because they have been temporarily deprived of their reason. While this analysis has little scientific merit to commend it, it has prevailed in provocation defence jurisprudence. It derives from 19th century criminal jurisprudence, which employed rich metaphorical language to convey the forfeiture of reason endemic to loss of self-control. Thus the state of the soul after provocation was depicted as an ‘ungoverned storm’, being carried off in a ‘transport’, or the provocative conduct ‘throwing a man’s mind off its balance’.[42] On one view, the emotions released as a result of provocation were like an ‘unruly horse’ whose rider — reason — might lose control after such provocation.[43] As Yannouladis observes, such metaphors convey the idea that the experience of strong passion produces a mental condition beyond the reach of reason that is analogous to insanity.[44]
Whether argued as provocation or mental impairment defence, the essential claim in such cases is that the defendant’s loss of control over their violent impulses founds an argument that such a person is incapable of reasoning as to the wrongfulness of their actions, and should be (partially) excused. However, there are obvious dangers in exculpating impulsive offences carried out in a setting of rage. As Forrester and Carroll observe,[45], to exculpate on the basis of acquiescence to violent impulses where, for example, a depressive illness may have made self-control more difficult, would considerably widen the insanity defence. Equally, to partially excuse on grounds of provocation for similar reasons gives the provocation defence more ‘pulling power’ than is warranted. For these reasons, it is submitted that more weight should be given to evidence of a pathological syndrome capable of producing loss of self-control, while giving less weight to claims based simply on uncontrolled rage.
A range of phenomena have been advanced to explain impulsivity. In relation to neurobiology, episodic dyscontrol of emotional impulses has been linked with aberrant functioning of brain circuitry, linking the prefrontal cortex with limbic structures such as the amygdala.[46] From a neuro-chemical perspective, such deficits have also been correlated with serotonergic hypoactivity, such phenomena evidently being common amongst habitual violent offenders.[47] Yet while most violent crimes are fuelled by fleeting states of rage that are impervious to calm reason,[48] it is also clear that some such behaviour may be the result of a specific impulse control disorder, over which the actor has little or no control. In particular, one group of the two major groups of impulse control disorders, characterised by one or many isolated impulsive acts usually of a recurring quality, includes catathymic crisis, defined as an isolated, non-repetitive act of violence.[49] Typically, it explains extreme, ostensibly unmotivated, violence that takes place in the context of an interpersonal relationship.[50] Importantly, for the purposes of this discussion, the catathymic process has as a hallmark, the idea that violence must be committed as a way of liberating unbearable inner psychic tension.[51]
While this particular disorder may provide a better foundation for a finding of legal insanity than a factual finding of uncontrolled rage for provocation, the catathymic process may be useful in explaining to a court the motivation and thinking patterns of an offender, in addition to what a psychiatric diagnosis alone can offer.[52] It also illustrates how a specific impulse control disorder may provide the evidential basis for a partial or complete exculpation. Significantly, the clinical description of catathymic homicides is consistent with abandonment-precipitated rage killings, which typically describe many spousal homicides where provocation is pleaded. However, I would agree with Dalrymple that espousing quasi-neurological explanations for outbursts of aggressive and violent conduct is an insufficient response to the problem of bad temper. If such connections are to be made for purposes of mitigation or exculpation, there must be sound scientific evidence given by appropriately qualified experts of a clear causal connection between the claimed disorder suffered and the behaviour alleged. Without that, the claimed loss of self-control is no more than an abuse excuse.
Another impulse control disorder that may be relevant to provocation is Intermittent Explosive Disorder. This disorder is generally evidenced by episodes of acting out aggression and causing bodily harm and/or property destruction. While loss of control is also a feature of this disorder, the usually male subject has typically had several incidents of losing control of anger, resulting in aggressive acting out. The degree of aggression manifested is always out of proportion to any precipitating factors (eg an argument) and usually the individuals involved will not take responsibility for their loss of control. Typically, they blame the victim, life circumstances, or a third party who said something that ‘caused’ their uncontrolled anger.[53] Intermittent Explosive Disorder has been accepted as a relevant factor in causing loss of self-control in two recent cases from the jurisdictions of Tonga and New Zealand.
In Taufa v R[54] an appeal against sentence on charges of grievous bodily harm and bodily harm was dismissed by the Court of Appeal of Tonga. However, although it concluded that the appellant had been under control and was capable of walking away from the situation where control was lost, it recognised the existence of Intermittent Explosive Disorder, characterised by discrete episodes of failure to resist aggressive impulses resulting in serious assaults or destruction of property. Similarly, in Murray v R[55] the New Zealand Court of Appeal acknowledged that the condition had been present when the appellant had battered and killed his infant daughter. It was, however, considered an insufficient factor to have raised a defence of diminished responsibility, had that been available, although the Court found sufficient mitigation in the accused circumstances to reduce the seven year jail sentence to five years.
Where Intermittent Explosive Disorder occurs together with other disabling conditions (eg psychosis, major mental illness, personality disorder or substance abuse), the potential for dangerous, unpredictable behaviour is increased. However, recent research suggests a possible neuro-chemical basis for impulsive behaviours, offering hope of newer pharmacological therapies.[56] These combined with Cognitive Behavioural Treatment may suggest a basis for mutually enhanced treatment possibilities for some offenders who are at risk of morbidly explosive outbursts of anger.
While it cannot be said that these conditions are typically associated with rage killings where provocation is pleaded, their existence as clinical categories deserves further examination in appropriate cases, especially those involving spousal homicides. The more we understand about those mental states that might provide an evidential basis for ‘provoked’ rage killings, the more we are free to move beyond heuristic accounts of loss of self-control and to embrace evidential models that offer greater hope of understanding the praxis of uncontrolled anger and the development of appropriate treatment methodologies.
Whether it is useful to continue to persist with a defence that appears to have outlived its usefulness is an open question. However, assuming that provocation still has a role to play in criminal law, how might it be recast to better accommodate clinical insights around the notion of loss of self-control?
First, the heuristic character of ‘loss of self-control’ must be conceded. Rather than asking the question ‘did the accused lose self-control?’ in addressing the factual question in provocation, perhaps another approach might be to ask: ‘what were the features of the accused’s rage, or fear, reaction that caused their judgment to be overwhelmed with such devastating consequences?’ Such an inquiry might disclose the presence of a recognised impulse control disorder, justifying both mitigation of responsibility for the homicide and therapeutic intervention to assist the offender to learn how to deflect anger so that it can be controlled. Where, perhaps, a catathymic crisis is disclosed, responsibility may also be mitigated, while the offender is assessed for future risk with a view to identifying those personality features disposed towards lethal violence.
Second, provocation theory, if the defence is to have a continued existence, should be shorn of its common law origins, related as they are to an ancient system of ‘honour killings’.[57] The defence should be recast, not as a concession to human frailty, but as a statutory recognition of the disabling effects of uncontrolled rage on the particular individual. On this basis not every claim of ‘loss of self-control’ would be allowed to prevail, but only those claims where it was proved that the accused suffered from a relevant impulse impairment or other pathological condition that made control of their anger impossible for them in the circumstances that prevailed. This would avoid the fiction of the ‘ordinary’ or ‘reasonable’ person and would mean that partial exculpation would be available only where the accused’s lethal reaction was attributable to a recognised psychiatric condition that affected their ability to control their violent rages.
This is in contrast to the approach advocated by Bernadette McSherry.[58] McSherry advocates restricting the boundaries of provocation as a defence by expressing the ‘ordinary person’ test more clearly as a normative standard. This, she argues, would avoid the exceptional difficulty of applying the current ‘two limb’ test, which allows consideration of the accused’s characteristics when measuring the gravity of the provocation, but dismissing them all except for age in the evaluative assessment as to whether an ordinary person would have lost self-control and done what the accused did.
In addition, McSherry advocates rejecting ‘mere words’ as sufficient to amount to provocation and suggests that provocation should be unavailable where the victim has ‘left, attempted to leave or threatened to leave an intimate sexual relationship’.[59] Curtailing the ambit of a claim of loss of self-control in such circumstances, it is suggested, would recognise a presumption that individuals ought to take appropriate steps to maintain self-control.[60]
While I agree with the thrust of these recommendations, in my view they do not go far enough. If provocation is to have a future as a partial exculpation, it must be separated from archaic constructs which lock it into the mythic concept of loss of self-control. As this discussion has attempted to show, loss of self-control is a cognitive heuristic which serves to perpetuate inaccuracies in the understanding of the psychological foundations of lethal rage. Furthermore, conceived as a concession to human frailty, provocation has become a mere cipher for a range of uncontrolled homicidal dispositions in which offenders have effectively been rewarded for failing to exercise appropriate control over inappropriate rage reactions. The heuristic of ‘loss of self-control’ has, for the most part, been uncritically employed by the courts to avoid the need to delve at all deeply into the psychological antecedents of uncontrolled rage, on the basis that the mythic ordinary person, would have reacted to the provoking event in the same way.
[*] WARREN BROOKBANKS is Professor of Law at the University of Auckland, New Zealand.
© 2006 Warren Brookbanks
The article is based on a seminar presented at the Law Faculty, de Montfort University, Leicester, on 12 October 2005. The writer also acknowledges the support and hospitality of the Faculty of Law, University of Otago, Dunedin, where the bulk of research for the article was undertaken while the writer was on sabbatical leave in July/August 2005.
[1] See eg AG for Jersey v Holley [2005] UKPC 23; [2005] 3 All ER 371 (Lord Bingham and Lord Hoffmann).
[2] R v Kirkham [1839] EngR 273; (1837) 8 C & P 115, 117 (Coleridge J).
[3] AG for Jersey v Holley, above n 1, [45].
[4] Mancini v Director of Public Prosecutions [1942] AC 1, 9 (Viscount Simon).
[5] See, eg, R v Lesbini [1914] UKLawRpKQB 204; [1914] 3 KB 1116; Bedder v DPP [1954] 1 WLR 1119.
[6] See R Holton and S Shute, ‘You Can’t Lose What You Ain’t Never Had: Self-Control in the Modern Provocation Defence’, Unpublished paper, 19.
[7] United Kingdom, Law Commission, Partial Defences to Murder, No 290, Cm 6301 (2004).
[8] AG for Jersey v Holley, above n 1, [27].
[9] Victorian Law Reform Commission, Defences to Homicide: Final Report (November 2004).
[10] See Crimes Act 1958 (Vic) s 3B.
[11] See A D Murdach, ‘Clinical Practice and Heuristic Reasoning’ (1995) 40 Social Work 752.
[12] Ibid 753.
[13] T Dalrymple, ‘Rages of the Age’ (2002) 2/54 National Review 22.
[14] Ibid 24.
[15] Holton and Shute, above n 6.
[16] Ibid 4.
[17] Ibid.
[18] Ibid 7.
[19] Ibid 8.
[20] Ibid n 23.
[21] Ibid 11.
[22] Ibid.
[23] [2000] UKHL 49; [2001] 1 AC 146.
[24] Ibid 173.
[25] CA 315/00, 20 November 2000.
[26] Ibid [22].
[27] An isolated, non-repetitive act of violence.
[28] For a full discussion of the different types of impulse control disorders see C A Soutullo, S L McElroy, and R J Goldsmith, ‘Cravings and Irresistible Impulses: Similarities between Addictions and Impulse Control Disorders’ (1998) 10/28 Psychiatric Annals 592–601.
[29] J Gunn and P Taylor, Forensic Psychiatry: Clinical, Legal and Ethical Issues (1995) 521.
[30] Ibid.
[31] Dalrymple, above n 13.
[32] Ibid.
[33] Gunn and Taylor, above n 29, 521.
[34] Ibid.
[35] Ibid.
[36] B McSherry, ‘Criminal Responsibility, “Fleeting” States of Mental Impairment, and the Power of Self-Control’ (2004) 27(5) International Journal of Law and Psychiatry, 445–57.
[37] Santo De Pasquale, ‘Provocation and the Homosexual Advance Defence: The Deployment of Culture as a Defence Strategy’ [2002] MelbULawRw 6; (2002) 26 Melbourne University Law Review 110, 117, cited in McSherry, above n 36, n 44.
[38] McSherry, above n 36, 454.
[39] Dalrymple, above n 13, 23.
[40] J R Cornwell, ‘The Confusion of Causes and Reasons in Forensic Psychology:’ Deconstructing mens rea and other Mental Events’ (1999) 33 University of Richmond Law Review 107.
[41] A M Dershowitz, The Abuse Excuse (1994) 41.
[42] S Yannoulidis, ‘Excusing Fleeting Mental States: Provocation, Involuntariness and Normative Practice’ (2005) 12(1) Psychiatry, Psychology and Law 23, 26.
[43] R v Hayward [1833] EngR 771; (1833) 6 C & P 157, 159[1833] EngR 771; , 172 ER 1188, 1189 (Tindal CJ) cited in Yannoulidis, above n 42, 32.
[44] Ibid.
[45] A Carroll and A Forrester, ‘Depressive Rage and Criminal Responsibility’ (2005) 12(1) Psychiatry, Psychology and Law 36, 40.
[46] See E S Barratt, and A R Felthous, ‘Impulsive versus Premeditated Aggression: Implications for Mens Rea Decisions’ (2003) 21 Behavioural Sciences and Law 619, 630, cited in Carroll and Forrester, ibid.
[47] Ibid.
[48] Ibid.
[49] C A Soutullo, S L McElroy, and R J,Goldsmith, ‘Cravings and Irresistible Impulses: Similarities between Addictions and Impulse Control Disorders’ (1998) 28(10) Psychiatric Annals 592.
[50] L B Schlesinger, ‘Familicide, Depression and Catathymic Process’ (2000) 45(1) Journal of Forensic Science 200–203.
[51] Ibid.
[52] Ibid 203.
[53] Psychology Information Online, Impulse Control Disorders <http://psychologyinfo.com/education> at 1 November 2006.
[54] Court of Appeal of Tonga AC 17/2004, 21 July 2005.
[55] CA 391/96, 27 February 1997.
[56] S Hucker, PsychDirect, Impulse Control Disorders <http://www.forensicpsychiatry.ca/impulse/overview.htm> at 1 November 2006.
[57] See Bernadette McSherry, ‘Afterword: Options for the Reform of Provocation, Automatism and Mental Impairment’ (2005) 12(1) Psychiatry, Psychology and Law 44.
[58] Ibid.
[59] Ibid 45.
[60] Ibid.
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