PROVOCATION AS THE MITIGANT OF HOMICIDE (A CRITICAL REVIEW)


PROVOCATION AS THE MITIGANT OF HOMICIDE (A CRITICAL REVIEW)

CHAPTER ONE

INTRODUCTION
In Nigeria and other common Law Jurisdictions provocation operates as a mitigatory or partial defence to murder aimed at the reduction of that crime to the lesser offence of voluntary (or intentional) manslaughter. For a plea of provocation to succeed the Jury must be satisfied that the accused was deprived of her self-control at the time of the Killing (the subjective test) and that this was the result of wrongful conduct serious enough to provoke an ordinary or reasonable person (the objective test). If there is no evidence to support a finding of provocation, the defence will fail, whether the accused lost her self control or not. Moreover, even if the victim’s conduct was such as to amount to provocation in law, the defences cannot be relied upon if evidence shows that the accused did not lose self-control as a result. Determining the threshold of legal provocation presupposes a moral Judgement about what sort of offensive conduct is capable of arousing in a person such a degree of justified anger or indignation that might defeat her capacity for self-control. Although legal wrong doings of a significant nature should for the most part provide a sufficient basis for the defence, non-legal moral wrong doings may also be considered serious enough to pass the threshold of provocation in law over this threshold, provocations may vary from the less serious ones (eg verbal provocations) to those involving very serious ones (eg provocations involving physical violence.

1.0 BACKGROUNDS OF THE STUDY
It is an established fact under the law that any acts of killing which is unlawful is a criminal acts. Such acts under the specific offence are referred to as “unlawful homicide”. Also any intention to kill or cause grievous harms by a person to another and which is eventually termed “Murder” However, there are certain killing which is usually do not amount to murder. Section 317 of the criminal code prove that an unlawful killing which does not amount to murder is manslaughter. Manslaughter maybe voluntary or involuntary; involuntary manslaughter covers cases in which there is no intention to kill or cause grievous harm. Voluntary manslaughter on the other hand occurs when a person intentionally kills another but the offence is reduced from murder to manslaughter because of provocation.

Thus provocation under section 318 of the criminal code is to the effect that a person is guilty of manslaughter only, if he unlawfully kills another in circumstances which would otherwise have constituted murder if done in the heat of passion caused by sudden provocation and before there is time for his passion to cool. However, before the defence of provocation can avail a person the test to be applied is to see what effect the act or series of acts of the deceased would have on a reasonable man, so that an unusually excitable or pugnacious person will not be able to rely on it as a defence to a charge unless the provocation was such as to have led an ordinary person to act in the way the accused did.

1.1 STATEMENT OF THE PROBLEM
The offence is generally controversial because it appears to enable defendant to receive more lenient treatment because they allowed themselves to be provoked. Judging whether an individual should be held responsible for their actions depends on an assessment of their culpability. This is usually tested by reference to a reasonable person, that is, universal standard to determine whether an ordinary person would have been (provoked, and if so would have done as the defendant did. Thus, if the majority views of social behaviour would be that when provoked, it would be accepted to respond verbally and if the provocation persists, then to walk away, that will set the threshold for the defence.

Another controversial factor of the defence is that the provoked must have carried out their act immediately after the provocation occurred, otherwise known as a “sudden loss of self control” The controversy comes when asked “what is immediate” this argument on the grounds of time still occurs and has caused many defendants, particularly women to loose their cases on this ground as they will often wait in (Wife-battering cases) until their husband is asleep shown in RV Ahluwalca This led to the enactment of a new defence of “Loss of control ”. The new defence removed the “sudden” requirement as it to cover battered women who lose control over a long period but as Baker points out it will probably not succeed in achieving that aim. Provocation creates a culture of blaming the victim provocation laws are very difficult to enforce since the victim is dead and cannot present their version of facts. The ordinary person test has been criticized for ignoring characteristics such as age, ethnicity and culture which affect a person’s capacity to lose self control.

1.2 PURPOSE OF THE STUDY
The aim and objective of this work is to examine the meaning of the term ‘provocation’ its plea as a defence to criminal charge in Nigeria and the conditions under which it can avail a person by reducing its culpability from murder to manslaughter or culpable homicide punishable with death to that not punishable with death. In view of this, this work shall attempt to achieve the following.
1. To examine the defence as well as its element
2. To examine the defence under the Nigerian criminal justice system, what constitutes the defence and its grounds for reducing murder to manslaughter.
3. To examine the burden of proof, the effect, the adequacy using the limitation of the defence and to suggest or make recommendation on the defence if there is any.
4. To also examine why provocation laws are very difficult to enforce.

1.3 SIGNIFICANCE OF THE STUDY
The law of provocation has been the subject of much development both locally and in other common law Jurisdictions. Although the paper draws largely upon the doctrine of provocation as it operates in English law.

It also evaluate some of the development with regard to the relevance of the characteristics of the offender and the proportionality requirement in the objective test of the defence, it also considers whether certain triggering conditions must be before an offender’s characteristic may be considered for the purpose of assessing the sting of the provocative conduct or insult and the proper approach of the court faced with such a alleged characteristics.
It is hoped that the analysis offered has relevance to all systems where similar defences are recognized and can make a useful contribution to the continuing moral debate that the partial defences to murder generate.

1.4 SCOPE AND LIMITATION OF THE STUDY
This essay is limited in scope to the provision of the two statutes governing the Nigerian criminal justice system. How the defence of provocation mitigate murder to manslaughter and upon who lies the burden of proving provocation and why the laws of provocation is hardly being enforced.

1.5 METHODOLOGY
The approach of research taken into consideration is based on explanatory method, thus textbook, journal, articles by law writers, publications, judicial pronouncement and opinion will be looked into decided cases will also be employed in this essay to be able to understand more on the principles of law relating to the defence of provocation in criminal liability. The criminal code and the penal code will also be of immense use to this work.

1.6 DEFINITION OF TERMS
Provocation: The act of inciting another person to do something, especially to commit crime.
Mitigation: Reduction, abatement or Diminution of a penalty or punishment imposed by law.
Homicide: The killing of one human being by the Act, procurement, commission of another.
Burden of proof: This is a party’s duty to proof a disputed assertion or charge.

1.7 LITERATURE REVIEW
The quest for a better and easier enforcement of Homicide laws has drawn the attention of writers to the subject at one time or the other. However writers have written on the doctrine of provocation and its nature. Writers also makes use of case laws (both Nigerians and non Nigerians) the reason for this is to appraise the disposition of the court towards the defence. The provisions of the two codes (penal and criminal code) are also highlighted and expoused. Those provisions represent the main laws governing criminal liability in Nigeria. Provocation was defined by Delvin J in R v Duffy as an act done by the dead man to the accussed which could cause in any reasonable man temporary loss of self-control.

The Homicide Act 195 S.3 gives a partial definition of this. 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 loose his self-control, the question whether the provocation was enough to make a reasonable man to do as he did shall be left to be determined by the jury. And in determining that question the jury shall take into account everything both done and said according to the effect which in their opinion it would have had on a reasonable man.

Okonkwo and Naish in their book provides a comprehensive and authoritative coverage of the concept. Smith and Hogan in their book examined all aspects of criminal law and criminal liability and particular specific defence. All these were done with illustration from decided cases. L. B. Curzon in his book examined all aspects of criminal law and criminal responsibility and even defences Glanville Willams defined crime to be legal wrong and also consider crime as a conduct which “will include a formal and solemn pronouncement of the moral condemnation of the community”. Yahaya Abubakar survey the technical details of the defence of provocation and its relation to self defence, adultery, drunkenness and witchcraft. The facts of the defence are presented with a masterly grasp of the field of criminal law in Nigeria. He sees the plea of provocation to be founded on the loss of self-control both actual and reasonable.
Michael Jefferson examines provocation from the perspective of section 3 of the Homicide act 1957.

According to him that section 3 is traditionally divided into two “limbs” for the purpose of exposition, the first limb is whether the accused was infact provoked; the second limb is whether a reasonable person would have been provoked. He sees provocation as only a defence to murder, therefore, before the accused may rely on this defence, he must have intended to kill or commit serious bodily harm., the Acts places the question whether the provocation was enough to make a reasonable man do as he did before the Jury, but does not change the definition of provocation except that nowadays the Jury can take into accounts words as well as deeds. Also the enactment of section 3 had not affected the requirement of a sudden and temporary loss of self-control. He also explained the decision in Thorton , and explains the basis of the criticism being that, women are likely to kill their spouse on the basis of planning (the jargon phrase slow burn) on this approach men get the defence but women do not.

Catherine Elliot and Frances Quin according to this author, that since the Homicide Act 1957 provocation may be “by things done or “ by things said or by both together, so words alone may suffice. The old case of R V Duffy had ruled that provocation had to be something done by the dead to the accused; but the Act 1957 Act removes this requirement.

He explicitly examines the objective and subjectives test and also the discrimination against women according to him campaigners have suggested that the requirement for a sudden and temporary loss of self-control discriminate against women, in their view lashing out on a moment of temper is a male way of reacting and takes no account of the fact that women partly because they lack physical strength may react to gross provocation quite differently, yet lose self-control just as powerfully.
Owoade , examines manslaughter in relation to provocation and briefly writes on the position of the nature of provocation before the enactment of the Homicide Act of 1957 and what the defence is like after the Act. He however joins other authors to voice out a basic requirement in the defence of provocation. He however sides with Okonkwo and Naish to say that the burden of proof in a plea of provocation remains throughout on the prosecution to negative it and prove other beyond reasonable doubt.

Andrew Ashworth in his work examines the defence of provocation from the perspective of elements of excuse and elements of justification respectively in provocation. Cross and Jones in their book explain that evidence that the accused was provoked is what the Jury must take into account, along with other circumstances, in deciding whether he intended to kill or cause grievous bodily harm and that the defence of provocation is concerned with the situation where the accused did intend to kill or cause grievous bodily harm but acted under a sudden loss of self-control. He also outlined the function of the Judge or Jury section 3 of the Homicide Act requires the Judge to consider two questions.
(a) Whether there is any evidence of provocation of the accused and
(b) Whether there is any evidence that the provocation caused him to lose his self-control.

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