A Critique of the Reasonable Man Concept in Provocation

'The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.'¹

That may be true indeed, but the principle of treating alike cases alike - enshrined in the principle of precedents - has so created a legal framework where it is found necessary, by logical reasoning, to categorise different characteristics or circumstances which are to be legally recognisable or otherwise as lowering culpability and the punishment deserved. However, one of the most perplexing concept in the whole legal system is undoubtedly that of the 'reasonable man'. A being so described by Professor Ashworth as: 'an anthropomorphic (and male) standard which might be taken to suggest a paragon of virtue...'²

A student of law, when first met with the reasonable man finds it natural to ask what a reasonable man is. The answer, inevitably, is that a reasonable man is a reasonable man, an ordinary man, an average man, like me and you, the jury, the judge. The concept of a reasonable man however seems to be an aggregation of averages which so creates a being like no other found in our world. The reasonable man concept portrays a picture of a being superior, trained in logical reasoning, containing such high intelligence, a paragon of virtue. Moreover, that a reasonable man would kill shows a paradox in this concept. No lesser a paradox of a reasonable man who is a glue sniffer, or is prone to depression, or is an alcoholic, or is not a man at all but a woman, a boy, perhaps belongs to no gender, nor age for his mental mind may be much younger than his physique suggests.

The question of who can be a reasonable, ordinary, normal man has been taken on a roller coaster ride by the most senior judges of this country in cases of provocation. The legal world has even seen subversion of the rules of precedents, as the opinions of the most renowned and intelligent judges that this country has produced differ so fundamentally with a question which seems to defy logical categorisation. To understand this fundamental division of the judiciary in regards to the concept of a reasonable man in provocation, it may be necessary to start at the beginning.

The partial defence of provocation has its origins in common law and it may be raised only in cases of murder. In other offences, provocation may be taken into consideration when passing on the sentencing. However, due to the current mandatory life sentence for murder and the previous capital punishment, provocation creates a change in the offence itself and lowers it from murder to still the very serious offence of manslaughter.³ The defendant therefore is charged with murder to begin with as he had the sufficient intent to cause the act. If the jury accepts that the defendant was provoked to lose his self control and kill in the heat of the moment, the defendant is partially excused for his act. This is so as no man is perfect and due to the imperfection common to us all, even reasonable individuals may lose their self control and so kill in the heat of the moment.⁴ It is a condescension to human frailty therefore,⁵ as the law does not demand more from an imperfect creature than he can perform.⁶ Many of these statements were made circa two centuries ago, in a time very different from ours, when men were guided by a different code of honour and walked around with swords. A 'flip upon the forehead'⁷ was considered to be sufficient provocation to justify a partial excuse, yet words were not.

The more recent development of the contemporary law of provocation has its roots in the twentieth century. The year is 1954. The accused, in Bedder v Director of Public Prosecutions [1954] 1 WLR 1119, an 18 year old, was impotent and trying to have sexual intercourse with a prostitute. She taunted him about his impotence and tried to escape his grasp. In the course of her attempt to do so, she slapped him in the face. The young man lost his control and killed her. He raised the defence of provocation, but the jury was directed to disregard his impotence and consider whether a reasonable man would have reacted as he did. This may of course seem irrational. Why would a man be aggravated to such a degree and lose his self control when taunted about a quality which he does not have? However, as words were not to be taken into consideration at all, it may seem reasonable that one does not lose his self control because of a slap alone. Yet this erases completely a most crucial aspect of the circumstances in this event.

Bedder is considered to be the height of objectivity in regards to provocation.⁸ It can easily be seen that in this case and undoubtedly many others, this rigid objectivity gave rise to many judgments which seemed illogical, irrational, unjust and unfair. Because of this, the Royal Commission on Capital Punishment Report (1953) considered the defence of provocation while reviewing the then law of homicide. Based on this report section 3 of the Homicide act 1957 was enacted, which states that:

This act was not a codification of the common law partial defence of provocation;⁹ it did however amend it in two important ways. One of the changes made by the act is that words also, on their own or accompanied by acts, can amount to provocation. Another change is the relationship between the judge and jury. Prior to the enactment of the act the judge was able to withdraw the partial defence of provocation. The judge may no longer do so. If there is any evidence that the defendant was provoked, whether the provocation was enough is a question to be determined by the jury only. To understand the motives of parliament for making this change, an extended quote from the Royal Commission report is needed:

It may be suggested that the act changed the relationship between the role of the judge and the jury so that the jury may use its common sense in returning a verdict of manslaughter or murder, with clear consciousness, regardless of whether the judge, trained in reasoning and logics, thinks some aspect of the circumstances is irrelevant. The jury therefore is given a normative as well as a fact finding function in deciding not only whether the defendant was so provoked, but also whether the provocation was to such extend as to justify a partial excuse.¹⁰ In light of this change, it may seem that the judge is completely striped off his powers, yet the jury needs direction and is not to be left unguided.¹¹ It is while performing this function where the restriction of the jury function may occur. This can be illustrated by the case of R v Camplin [1978] A.C. 705 in which a 15 year old boy was so provoked as to lose his self control and kill. The trial judge instructed the jury to consider whether:

Because of the above direction by the judge, Camplin was convicted of murder, undoubtedly because the jury did not think that a reasonable man, and not a boy, would have acted as Camplin did. Yet:

The answer was yes, in a unanimous decision given by Lord Diplock where he stated that:

It was explicitly stated that the reasonable man is to be given the age and sex of the accused. He would therefore become a reasonable woman or a reasonable young man and is to be attributed such characteristic when both assessing the gravity of the provocation to the defendant and also the standard of self control to be expected. It is suggested that the natural evolution from this judgment has been to endow the reasonable man with any permanent characteristic of the defendant, as opposed to self induced intoxication, when applying the reasonable man test, which reached its height in R v Humphreys [1995] 4 All ER 1008, where it was decided that attention seeking and immaturity are to be attributed to the reasonable woman. It may be argued that due to this wide leniency in applying the objective test, the Privy Council in Luc Thiet Thuan v The Queen [1997] A.C. 131 reopened the debate in the law of provocation in regards to the way that the reasonable man should be presented to the jury. An individual, who had a brain defect which affected his power of self control, was so provoked to kill. The question was whether the jury should be directed to take into consideration his brain damage when applying the reasonable man test, so that the reasonable man becomes a reasonable man with a brain damage. The Privy Council decided that they should not.

To understand the difference between age, impotency, and brain damage which is not of such extent as to be considered abnormality of the mind, it needs to be mentioned that being, as judges are, trained in logical reasoning, they have applied the defence of provocation by considering two components. The first one is the subjective or factual element: was the defendant in fact provoked to lose self control? All the circumstances are to be taken into account when determining this fact finding aspect of the defence of provocation.

The second and objective question is whether the provocation was enough to make a reasonable man loose his self control and do as the defendant did. The objective question is said to contain two components: 'the gravity of the provocation addressed to the accused' and 'the degree of self-control to be expected of the ordinary person with whom the accused's conduct is to be compared'. To determine both of these two objective questions, the standard of a reasonable man is to be applied so that the gravity of the provocation is compared with the effect that it would have on a reasonable man and also whether a reasonable man would have lost his self control in these circumstances.

It may seem that this distinction is mental gymnastics¹⁵ as both the gravity of provocation and the los of self control are so 'muddled up with each other'¹⁶ and relevant only in determining whether the response of the defendant was proportionate to the provocation. Yet to accept the distinction allows the judges to treat one aspect differently from the other. It is, as mentioned, absurd to consider the gravity of the provocation in Bedder in comparison to a man who is not impotent, or the gravity of provocation to someone who is a dwarf and being taunted about this, in comparison to someone who is not, as:

However, although it is accepted that one should take into consideration the characteristics of the defendant when considering the gravity of provocation, it is suggested that the characteristics of the defendant should not be taken into consideration when asking whether a reasonable man would lose his self control. In Bedder for example, the fact that the defendant is impotent may be irrelevant when considering the standard of self control that the jury is to expect from the defendant as arguably impotency does not affect the ability to control oneself. As such, the defendant should have exercised 'such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today'.¹⁸ As a matter of policy, the law expects citizens to not over react to some triffeling provocation. If they are short tempered or pugnacious, they are to be compared to a reasonable, ordinary citizen in determining whether they should be partially excused. This is very different it seems from Luc Thiet however where the characteristic of the defendant was his brain imbalance which affected his power of self control. When determining the gravity of provocation it was accepted by the Privy Council that the jury may take the characteristic of the defendant into consideration. It may however be suggested that the fact that he had a brain damage is somewhat irrelevant as he was not being taunted about this characteristic, therefore the provocation to him would be the same as to any other ordinary man, unless the judges thought that due to his brain imbalance he would perceive the provocation as being of a greater magnitude than would an ordinary man without such brain damage. In such case, it seems puzzling to accept this, but disregard such consideration when determining whether a reasonable man would lose his self control and do as the defendant did.

However, the reasoning for the Privy Council decision might have been influenced by the presence of section 2 of the homicide Act 1957 which states that:

The defendant in Luc Thiet raised the partial defence of diminished responsibility, but the jury was not convinced thus convicted him of murder. It may be suggested that the Privy Council was of the opinion that this was primarily a diminished responsibility case hence the defendant should not be allowed to find recourse in provocation now that he has not convinced the jury that his mental abnormality was to such extent as to justify a partial excuse. However the partial defence of diminished responsibility is a general defence and the burden of proof is reversed, albeit on a balance of probabilities, while provocation depends on the circumstances of the case and it rests upon prosecution to prove beyond any reasonable doubt all the aspects of the defence. Moreover, diminished responsibility has been introduced so as to address the strictness of the defence of insanity¹⁹ which suggests that the two defences have different objectives. As there are instances when both defences may be relevant, 'the fact that by section 2 the distinct defence of diminished responsibility due to a mental abnormality was introduced should not be allowed to alter the scope or substance of the defence of provocation or colour one's approach to an understanding of it.'²⁰

The House of Lords in Regina v Smith (Morgan) [2001] 1 A.C. 146 disagreed with the Privy Council Decision in Luc Thiet. The defendant in this case suffered from severe depression and the question was once more on how the jury should be directed in regards to the standard of self control expected. He also raised the defence of diminished responsibility and provocation, but the jury convicted him as the judge directed them not to take into account his depression when considering whether a reasonable man would have lost his self control and do as the defendant did. The majority of the House of Lords, two of the Law Lords dissented, were of the opinion that the defendant's characteristic are of relevance when determining the standard of self control. After an extensive analysis of the law of provocation, it was suggested that the age of the defendant in Camplin was of relevance in regards to both the gravity of provocation and the level of self control that the jury should expect the defendant to have exercised. As the gravity of provocation to a 15 year old may be different than to a man, equally, one can not expect the same level of self control in a 15 year old young man as in an adult. It is suggested that if one is to take the age of defendant into consideration when determining the standard of self control, it seem illogical not to take the mental imbalance of the defendant into consideration in cases when such imbalance is not of such a level as to be considered mental abnormality, yet nor is it on a par with an ordinary man.²¹ It is not treating alike cases alike²² when someone's power of self control is affected by his severe depression, is to be compared with someone who is not affected by such characteristic.

However, one may argued that being a young man is normal and ordinary as everyone has to go through the physical and mental development of young age. As age and sex are universally found, they differ fundamentally from a rarer characteristic, such as brain imbalance, severe depression, glue sniffing, or chronic alcoholism.²³ Hence it is just in principle to take these two characteristic into account, yet disregard any other characteristic the defendant may have which would affect his ability to control himself. Such distinction may be supported by policy considerations as the objective test was born in common law to determine a standard of self control to be expected of everyone, so that a short tempered man or unusually excitable man does not rely on this characteristic and over react to a trifling provocation. Though the law therefore:

It may however be suggested that there is nothing unnatural about being short tempered. The person is born with it. His personality and temperament are innate, much as age or sex.²⁵ Yet as a matter of policy the law does not allow reliance on provocation when the provocation itself was not sufficient to justify a partial excuse as the short tempered is expected to control himself and respond proportionately. Equally, to show compassion for slight immaturity or attention seeking may be indulging human ferocity as the individual, much as the short tempered, may be able to exercise the same level of self control as an ordinary man or woman, thus they should be expected to do so and not rely on such excuse. However, this is quite different from a young man who may not be able to apply the same level of self control as an adult may. Equally, a man suffering from severe depression, or a woman from a battered woman syndrome, can not be expected to apply the same level of self control as someone who does not have such characteristic. To expect this would be to require more from an imperfect creature than they can perform.

Despite the above arguments, the majority of the Privy Council in Attorney General for Jersey v Holley [2005] 2 A.C. 580, three Law Lords dissented, decided that the characteristics of the defendant, but sex and age, are not to be taken into consideration when determining the standard of self control. The defendant in this case was a chronic alcoholic who was so provoked to kill his girlfriend. Self induced intoxication as a matter of policy is not a defence to crime, nor is it to be considered when applying the objective test in provocation. It may however be argued that chronic alcoholism differs as it is a characteristic as defined by North J, not much different therefore than depression, or a battered woman syndrome.²⁶

This judgment was a purely academical exercise as the decision was not to alter the sentencing for manslaughter because the defence had accepted that chronic alcoholism was a characteristic to be taken into consideration throughout the trial, but the attorney general was given leave to appeal as the issue in question was of public importance. Five of the House of Lords judges sat in the judgment and all the Lords accepted that the judgment was to determine once and for all whether the reasonable man is to be endowed with a certain characteristic of the defendant when determining the standard of self control to be expected.

However, the authenticity of this judgment seems to be in doubt, not only because the judgment was purely academic, but also because it might have been influenced by the characteristic of the defendant in question and the policy considerations in regards to alcoholism. It is therefore questionable whether this judgment will be upheld in a House of Lords decision which is yet to be seen. As the law currently stands, the Court of Appeal seems to be considering this judgment as overruling that of Smith Morgan,²⁷ hence the characteristics of the defendant are to be excluded and he or she is to be compared to an artificial reasonable man or woman which possesses a different ability of self control than they.

Perhaps one positive outcome from this decision is the fact that at least for now the law seems to be settled and certain. Hence the defendants are able to predict with some level of certainty the likelihood of the jury decision. Yet it may be suggested that for the judge to direct the jury not to take into consideration a certain characteristic of the defendant which they accept to lower his ability of self control, seems to trespass into their province²⁸ as the act makes it clear that the jury alone is to determine, taking into account everything both said and done, whether a reasonable man would have acted as the defendant did.

Many of the Law Lords in this decision called on parliament to review the law on provocation and suggested that to interpret the reasonable man otherwise than a purely objective concept would be to subjugate their duties. However, the reasonable man concept used in the act is a common law concept. It rests upon the judiciary therefore to interpret it. By so interpreting the reasonable man in an artificial manner, considering him as a paragon of virtue, completely detached from all the circumstances and aspects of the event, the judiciary seems to show no compassion for human frailty,²⁹ the law is taken back many years and also the intention of parliament is distorted as it intended to address the harshness of previous decision when the objective test was rigidly applied.

It may be suggested that the debate in regards to the concept of the reasonable man in provocation has been to some extent among absolute lines. Some judges regard the reasonable man to be detached from the characteristics of the defendant, becoming a rather artificial creature which may in some cases lead to injustice. Other judges are of the opinion that the concept of a reasonable man should remain objective, yet when the defendant is clearly not an ordinary man, such as suffering from severe depression or being a battered woman, the concept should accommodate such characteristic and ask what level of self control should be expected of an ordinary man or woman of this kind. This approach however seems to have developed to such extent as to accept attention seeking or immaturity as a characteristic to be given to a reasonable man, when the function of the objective test is arguably to exclude precisely such characteristics.

It may perhaps be suggested that although the reasonable man should not be a reincarnation of the defendant for that defies the purpose of the concept, the reasonable man should also not be an artificial creature containing such standards which the defendant can not attain. The debate should perhaps move to a stage where the judiciary, as a matter of policy and principle also, decides which characteristics of the defendant are to be given to the reasonable man and which not, so that the law guards against indulging human ferocity, but also shows compassion for human frailty where due. There is certainly a need for balancing these opposing considerations therefore. Where this balance should fall however remains to be seen.

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