Defence of Provocation + Trisha 9(1)(a) burglary

Question 1

What is the old defence of provocation under the Homicide Act 1957

Answer 1

The old defence of provocation was a two part test;

1. Was the defendant provoked by things said or done (or both) to suddenly and temporarily lose their self control? (subjective)
2. Would the provocation have made a reasonable person lose their self control and do as the defendant did? (objective test)

The jury was then left to decide whether provocation was enough to make a reasonable man lose self control and do as the defendant did, and the jury could take into account everything said or done.

Question 2

Does Trisha Commit a Section 9(1)(a) Burglary?

Answer 2

No she does not.

Trisha does NOT have the intent to commit theft. The Actus Reus elements of theft are to appropriate, property, belonging to another. From the fact pattern we know the intention of Trisha is to ‘retrieve her jewellery’ from a house she co-owns with an ex, so as we can’t make out the AR of theft, the mens rea requirement of intent to commit theft for a s 9 (1)(a) burglary won’t be made out.

Trisha also does NOT have the intent to commit criminal damage at the point of entry. With regards to the smashing of the door panel, the damage to the door is irrelevant in the context of a section 9(1)(a) burglary as Trisha does the damage at/before the time of entry, she doesn’t enter with the intent to do criminal damage to the door panel.

Finally, Trisha does not intend GBH so as she satisfies no Mens Rea requirements for the offence Trisha has not carried out a section 9 (1)(a) burglary.

Question 3

Is the real issue the mandatory life sentence?

Answer 3

Yes, to an extent I do agree with Simon parson in this respect.

I think there are 2 main issues, the fact that a murder charge automatically comes with a life sentence and the fact that loss of control defence is so objective and stringent that it can rarely be used as a defence to murder. Unlike the old defence of provocation where anything done or said could at least be considered a provocation.

The issue here is that only characteristics that directly relate to the provocation can be taken into account e.g. R v Morhall (defendant was taunted about a glue sniffing addiction), but not morally sympathetic characteristics that do not directly relate to the provocation. There is no longer sympathy for people who ‘snap’, except if they can prove they meet the very stringent requirements of the loss of control defence.

I think that like the old law of provocation where there was more compassion and personal characteristics could be taken into account, perhaps sentencing for murder should be more subjective. Based on the facts of the case judges should have more discretion to weigh up all the triggers, provocations, instances of abuse in the past etc, to impose a sentence that reflects the nature of the crime, and the reasons why it was committed