The Defence of Provocation

Definition and Nature of provocation

Provocation and the defence of provocation are defined in the Criminal Code. In some jurisdictions like the United Kingdom and Ireland, provocation is a defence only available for the offence of murder. In Nigeria, however, provocation can be a defence for assault as well as for murder.

Basically, the defence of provocation in criminal law is a concession to human frailty. The law understands that sometimes, people can be pushed to the wall and overcome by such passion that in the moment where they are provoked and react to that provocation, they are not in control of themselves, and we excuse them for that momentary weakness because, after all, we are human with emotions.

The term provocation as used with reference to an offence of which an assault is an element, includes, except as hereinafter stated, any wrongful act, or insult of such a nature as to be likely when done to an ordinary person or in the presence of an ordinary person to another person who is under the immediate care, or to whom he stands in a conjugal, parental, filial, or fraternal, relation, or in the relation  of master or servant, to deprive him of the power of self-control, and to induce him to assault the person by whom the act or insult is done or offered-section 283 Criminal Code.

A person is not criminally responsible for an assault committed upon a person who gives him provocation for the assault if he is in fact deprived by the provocation of the power of self control, and acts upon it on the sudden and before there is time for the passion to cool; provided that the force used is not disproportionate to the provocation and is not intended and is not such as is likely to cause death or grievous harm - Section 284 Criminal Code.

When a person who unlawfully kills another in circumstances which, but for the provisions of this section, would constitute murder, does the act which causes death is the heat of passion caused by sudden provocation, and before there is time for his passion to cool, he is guilty of manslaughter only - Section 318,Criminal Code.

The provisions of the criminal code as stated above did not define the term “provocation” They merely attempted to explain it.

Elements of Provocation

The following may constitute the elements necessary in establishing the defence of provocation:

a.       the provocation was offered to the accused

b.       Capable of depriving the ordinary man of his power of self control.

c.       Accused was actually deprived of his power of self control.

d.      Accused acted on the sudden and in the heat of passion without cooling time.

e.  Unreasonable or excessive force was used, or the means of retaliation was appropriate.

Examples of words or acts to which the defence of provocation has succeeded are as follows:

a.      Wife telling her illiterate and primitive husband that hwe was impotent and for that reason, he has been committing acts of adultery with other men, R v Adekanmi (1944).

b.      Wife, taunting her husband with his impotence and spitting on his face, R v Igiri (1948).

c.       Deceased stabbing the appellant, Mensah v King (1945).

d.      Wife saying her illiterate husband and a dog were the same, Ruma  v Daura N A (1960).

e.      Wife calling her husband a slave, Edache v The Queen, (1962).

f.        Deceased suddenly gripping the throat of th3e appellantduring a dispute, R v Josiah Onyeamaizu,(1959).

The defence of provocation can succeed only if the effect of abuse or insult would cause a reasonable man to lose his self-control and also that the accused did actually lose his self-control consequent upon the provocation

In criminal law, words alone may not amount to constitute provocation. But the court has held that that in some particular cases they can. Much would depend on the words used and what they mean, having regard to the custom or background of the person son whom the words are used.

Provocation in Murder

In relation to murder, Devlin, J described provocation as some act of series of acts, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or  her for the moment not master of his mind - R v Duffy (1949).

The important element of what constitutes provocation is that the act leading to death must be shown to have been done “in the heat of passion caused by sudden provocation and before there is time for his passion to cool.”

In Bedder v DPP (1954), the accused was sexually impotent. He tried unsuccessfully to have intercourse with a prostitute. She thereafter jeered at him, and also kicked him causing him to lose self-control, whereupon, he stabbed her twice and killed her.

On a charge of murder, the accused pleaded provocation and the House of Lords upheld the direction that the proper test was the effect which the conduct of the prostitute would have on an ordinary person, not on a sexually impotent person.

The mode of resentment must bear a reasonable proportion to the provocation offered –a fist blow for a fist blow, not a savage attack with a lethal weapon in return for a mere vituperative abuse

Where the defence of provocation is successfully established, the offence of murder is reduced to manslaughter.

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