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You are here: BAILII >> Databases >> The Law Commission >> Partial Defences to Murder (Appendix A) [2004] EWLC 290 (06 August 2004) URL: http://www.bailii.org/ew/other/EWLC/2004/290(appendix_a).html Cite as: [2004] EWLC 290

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APPENDIX A

THE PROVOCATION PLEA IN OPERATION – AN EMPIRICAL STUDY

By R D Mackay^[1]

Professor of Criminal Policy and Mental Health, De Montfort Law School, De Montfort University, Leicester.

1. Provocation is a plea which continues to be beset by controversy. The reasons for this are clearly outlined in the Law Commission's Consultation Paper on Partial Defences to Murder^[2] and need no further elaboration. The plea, although common law based, was modified by statute in s. 3 of the Homicide Act 1957 and there can be no doubting its importance as a vehicle for reducing murder to manslaughter. However, unlike its counterpart diminished responsibility, with which it has an important interrelationship, there are no official statistics kept on the successful use of provocation as a partial defence. Rather, such pleas are contained within the total number of cases of 'other manslaughter' recorded by the Home Office in its annual compilation of Homicide Statistics. This makes the identification of provocation cases difficult. However, discussions with the Home Office Research, Development and Statistics Directorate provided a means to identify some of the cases where provocation was raised during the proceedings, resulting in either a manslaughter or murder conviction. The period chosen for this research was the five years from 1997 to 2001 which matched the period for an analogous study of diminished responsibility cases. It is important to emphasise, however, that the following study does not claim to capture all those cases where provocation was pleaded during the five year research period. The reason for this is that resources only permitted the research team to access those cases where provocation had definitely been identified by the Home Office as a relevant plea. Accordingly, the team was unable to examine all 'multiple defence' cases some of which may or may not have used the provocation plea as part of a defence strategy.
2. So far as is known, unlike diminished responsibility,^[3] there are no empirical studies on the operation of the plea of provocation in English law. ^[4] The reasons for this may be to do with the difficulty of identifying such cases, referred to above. It may also be thought that there is little to be gained from such a study as the plea itself is essentially a matter for the jury, upon whose deliberations no research can be undertaken. However, be that as it may, a study such as the following, which gives data on some aspects of the provocation plea, is hopefully of some merit.

The Research Findings

3. During the research period of 1997-2001 there was a total of 71 defendants where provocation was identified as a defence which was raised during the course of the trial process. These 71 defendants resulted from cases with 63 victims. ^[5] This in turn meant that there were four cases (see cases 1 & 2; 36 & 37; 38 & 39; 59 & 60) where there was one relevant co-defendant and two cases (see cases 19, 20 & 21; 32, 33 & 34) with two relevant co-defendants (relevant in the sense that each of these co-defendants also faced a charge of homicide, with provocation as a possible plea). The following findings will be presented by giving data on each of the 71 defendants and where relevant on each of the 63 victims. This means that the totals will vary between 71 for defendants and 63 for victims.
4. With regard to sex and age, unsurprisingly, males constituted the vast majority of defendants with 60 (84.5%) males compared to 11 females (15.5%). This compares in the recent Homicide Statistics to an overall rate of 65% for males, excluding the victims of Harold Shipman.^[6]

Tables 1a and 1b give a breakdown of the sex/age distribution of the defendants. The mean age for defendants was 31.5 (age range 16-55).

Table 1a age range of accused * sex of accused Crosstabulation



Table 1b age range of accused * sex



The ethnic breakdown of defendants is presented in Table 2 and shows that around 87% (n=62) were White and born in the United Kingdom.

Table 2 born UK * ethnic group Crosstabulation


5. With regard to criminal records although 67.6% (n=48) of the sample had previous convictions, (two of whom were women) only 42% (n=30) had been convicted of offences of violence (of which only one was female) and a mere 8.5% (n=6, all male defendants) had perpetrated some form of domestic violence. Further, seven of the eleven female defendants (63.6%) had been the victims rather than the perpetrators of domestic violence.
6. Turning to victims, their sex/age distribution is presented in Table 3. The mean age for victims was 43.6 (range 16-77). Also, it may seem surprising that only 16 (22.4 %) of the victims were female, in the light of the concerns regularly expressed about men killing women and then pleading provocation successfully.

Table 3 age range of victims * sex of victim Crosstabulation


7. The relationship of the victim to each of the 71 accused is given in Table 4. As expected in the vast majority of cases victims (88.7%, n=63) were already known to the accused at the time of the killing, with only 11.3% (n=8) being classed as strangers. The biggest group of 32.4% (n=23) is "other known (acquaintance)".

Table 4 relationship of victim to accused

		Frequency	Percent	Cumulative Percent
	parent, step parent	2	2.8	2.8
	spouse	6	8.5	11.3
	cohabitant	10	14.1	25.4
	ex cohabitant	2	2.8	28.2
	lover	6	8.5	36.6
	other family	1	1.4	38.0
	friend	10	14.1	52.1
	stranger	8	11.3	63.4
	neighbour	3	4.2	67.6
	other known (acquaintance)	23	32.4	100.0
	Total	71	100.0

8. It has been stated recently that "15 per cent of all recorded homicides in England and Wales could be categorised under a 'domestic' heading. It is also clear from national and international data, and research literature, that women are most at risk from being killed by a partner. According to the Homicide Index, between 1995 and 1999, 44% of all female homicide victims in England and Wales – and 50% of those killed by men – were killed by a current or former sexual partner. This compares to just seven per cent of all male victims".^[7] Further, overall the recent Homicide Statistics reveal that "40% of male victims and 66% of female victims knew the main suspect".^[8]
9. It can be seen below from Table 5 that 100% of the female victims in the research sample knew the accused, the eight cases in the "stranger" category all relating to male victims.
10. Table 5 attempts to show the relationships of the victims to each of the 71 defendants from which it can be seen that 24 defendants (33.8%) killed a spouse, cohabitant, ex-cohabitant or lover. It can also be seen that of the female victims who were killed by current or former sexual partners, one was also jointly killed by two "other known (acquaintances)". They were a female and male co-defendant who had recently come to stay for a short period with the victim and her partner (see cases 19, 20 & 21). The single case classed as "friend" was the case of a male who killed his female friend with whom he was staying (see case 56). Although they knew one another well there was no suggestion on the facts of the case of any sexual relationship. Accordingly, the total number of female victims who were killed by a current or former sexual partners is 15 (93.8%), while by way of contrast only 9 (19.1%) of all male victims were killed by current or former sexual partners. This very high percentage of female victims who were killed by a sexual partner is almost certainly indicative of the fact that the cases in question were all the product of 'provocation'. What again is interesting, however, is that the research sample only accounted for a total of 16 (25.4%) female victims killed by 17 males and one female as a co-defendant (see cases 19,20 & 21).

Table 5 relationship of victim to accused * sex of victim Crosstabulation


11. The place or venue where the killing actually took place is given in Tables 6a and 6b. It can be seen from these that the vast majority of the offences took place in the victim's home (33.8%, n= 24) or the matrimonial/partner's/family home (26.8%, n=19). Taken together these two categories account for 60.6% (n=43) of the research sample. If one includes the accused's home (n=3) this rises to 64.8%.

Table 6a venue of offence



Table 6b venue of offence

		Frequency	Percent	Cumulative Percent
	matrimonial/ partner's/family home	19	26.8	26.8
	victim's home	24	33.8	60.6
	accused's home	3	4.2	64.8
	public house	2	2.8	67.6
	street	8	11.3	78.9
	other	15	21.1	100.0
	Total	71	100.0

12. Tables 7a and 7b give details of the "motive for the killing". As might be expected the two categories of "rage, quarrel or fight" predominate, accounting for 78.9% (n=56) of the total. If one includes "jealousy" (n=7) this rises to 88.7 %). Further, it is interesting to note that the motive in respect of all the female victims fell within these three categories. The most prevalent category in the recent Homicide Statistics is "quarrel, revenge or loss of temper", particularly where the accused and victim were known to each other.^[9]

Table 7a motive for killing

		Frequency	Percent	Cumulative Percent
	rage, quarrel or fight with related person	5	7.0	7.0
	rage, quarrel or fight with non-related person	51	71.9	78.9
	jealousy	7	9.9	88.7
	faction fighting	1	1.4	90.1
	drug related	4	5.6	95.7
	other	3	4.2	100.0
	Total	71	100.0

Table 7b motive for killing


13. Tables 8a and 8b show the "method of killing" and as expected the use of a "sharp instrument" predominates at 57.7% (n=41). This is much greater than revealed in the recent Homicide Statistics where although it remains the most common method of killing, the figure is 33%.^[10] The sole case of "blunt instrument" in respect of a female defendant applied to an accomplice who was found unfit to plead (see cases 59 & 60). The two cases of "kicking or hitting" in respect of female defendants occurred in cases 19, 20 &21 and 70. The sole case of "burning" was a case where an Asian woman set fire to her husband's genitals after he had informed her that he had divorced her a number of years ago in Pakistan (see case 50).

Table 8a method of killing

		Frequency	Percent	Cumulative Percent
	sharp instrument	41	57.7	57.7
	blunt instrument	11	15.5	73.2
	kicking or hitting	14	19.7	93.0
	strangulation	4	5.6	98.6
	burning	1	1.4	100.0
	Total	71	100.0

Table 8b method of killing


14. It can be seen from Table 9 that the method of killing for those victims who were killed by a current or former sexual partner was mainly a "sharp instrument" (n=16).

Table 9 relationship of victim to accused * method of killing Crosstabulation



Aspects of the Trial

15. The Crown Court files could not shed light on the intricacies of the trial in each case but the following data were extracted and may help to explain a number of different aspects of what took place. First, Table 10 shows that there was no trial in respect of 23.9% (n=17) of the defendants, four of whom were female defendants. This total includes the case where a female co-defendant was found unfit to plead (see cases 59 & 60) Also in three of the cases, male co-defendants pleaded guilty to murder despite some evidence of provocation (see cases 36 & 37, 38 & 39 and 59 & 60).^[11] This means that there were 13 (18.3%) cases in total where the defendants' pleas of guilty to manslaughter were accepted by the prosecution.^[12]

Table 10 sex of accused * jury trial Crosstabulation


16. In 44 cases the details available on the file revealed that a defence other than provocation was possibly available to the accused. In 19 of these cases a further defence was raised. Table 11a gives an indication of the first defence while Table 11b gives similar details of any further defence raised. It can be seen from Table 11a that the most frequent alternative first defence was "lack of intent"^[13] followed by "self defence".

Table 11a other pleas 1


17. Of those where a further defence was considered, self defence and causation were most frequent. Both tables reveal that in only 9 cases was diminished responsibility a possible alternative plea.

Table 11b other pleas 2


18. As for the use of psychiatric reports, 49 of the accused had at least one psychiatric report on file.
19. With regard to verdicts, Tables 12a and 12b reveal that 43.7% (n=31) of the cases, all of which were male defendants except for one case of a female co-defendant (see cases 19, 20 & 21), resulted in murder convictions. As already mentioned above, three of these murder convictions resulted from pleas of guilty to that offence. This means that out of 54 contested cases where provocation was under consideration 28 (51.9%) resulted in murder convictions. Even allowing for the 13 cases where the Crown accepted a plea of guilty to manslaughter, overall the defence was unsuccessful in 41.8% of cases. While the files shed no light on the reasons for these failures to obtain manslaughter convictions, the respective failure rates are by no means trivial.

Table 12a verdict



Table 12b verdict * sex of accused Crosstabulation


20. Of those that succeeded in obtaining a manslaughter conviction it can be seen from Tables 13a and 13b that there were 15 cases where it was uncertain what precise form the manslaughter verdict took. However, in 24 (20 males and 4 females) cases it seemed reasonably clear from the file details that the manslaughter verdicts were based on provocation, six of which were uncontested. In only two cases was it clear that the accused pleaded guilty to manslaughter on the basis of a combination of provocation and diminished responsibility. In one, the plea was not accepted and the jury convicted D of murder (see case 35), while in the other (case 61) the basis of the manslaughter verdict is unclear.

Table 13a verdict * jury trial Crosstabulation



Table 13b verdict * jury trial * sex of accused Crosstabulation


21. With regard to sentences Table 14a shows that overall, 22.5% (n=16) of defendants received a sentence of between 5 and 7 years, while 16.9% (n=12) fell within the 3 and 5 year category. Table 14b reveals the breakdown of sentences in relation to verdict and gender. Of those convicted of manslaughter (n=39), 6 defendants (all males, 15.4%) were sentenced to between 7 and 10 years, 16 defendants (all males except one, 41%) received sentences of between 5 and 7 years and 12 defendants (7 males and 5 females, 30.1%) fell within the 3 and 5 category.

Table 14a sentence



Table 14b sentence * verdict * sex of accused Crosstabulation


22. Below Table 15 shows the relationship between sentence and verdict. It can be seen from this that 17 provocation verdicts received 5 years or more compared to only 5 of the manslaughter verdicts.

Table 15 sentence * verdict Crosstabulation


23. Table 16 shows the relationship between the sentence and the sex of the victim. It reveals that of the 16 female victims, 11 resulted in murder convictions. These eleven murders were perpetrated by 10 single male defendants and in cases 32, 33 & 34 two male co-defendants and one female co-defendant. So far as this particular study is concerned what this may indicate is that the male defendants who killed women were more likely to be convicted of murder rather than manslaughter. As for provocation, only four cases (13, 24, 48 and 57) of a male killing a female clearly resulted in a successful plea of provocation, two receiving eight years (13 & 57) and four years (24 & 48) imprisonment respectively.

Table 16 sentence * sex of victim Crosstabulation


24. Table 17 below shows the relationship between the sentence, the sex of the accused and the relationship of the victim to the accused. In doing so it reveals the sentencing pattern of those women who were convicted of the manslaughter of a sexual partner. It shows that two received a community sentence, one was sentenced to between 1 and 3 years, four to terms of 3-5 years and one 5-7 years imprisonment. By way of comparison, no men convicted of manslaughter of a female sexual partner were given community sentences, while 2 were given terms of 3-5 years, one 5-7 years and two 7-10 years imprisonment.

Table 17 sentence * sex of accused * relationship of victim to accused Crosstabulation



Concluding Remarks

25. Clearly the study presented here has its limitations. In no way does it claim to catch all cases where provocation was pleaded during the research period of 1997-2001, the precise total of which is uncertain. Nevertheless, it does present data relating to 71 defendants where provocation was an issue of relevance within the trial process. In doing so the data from this particular piece of empirical research seem to reveal the following points:

Out of a sample of 71 defendants there were 11 females (15.5%), see Table 1a.

Victims were predominantly male (74.6%, n=47) with only 16 (22.4 %) females, see Table 3.

The vast majority of the victims (88.7%, n=63) were already known to the accused, only 11.3% all males (n=8) were strangers. All of the female victims except one knew the victim. 93.75 (n=15) of the female victims were killed by a current or former sexual partner compared to nine of the male victims (19.1%), see Table 5.

The vast majority of the offences took place in the home of the victim/partner/accused. This accounted for 64.8% (n=46) of the sample, see Table 6b.

"Rage, quarrel or fight" accounted for 78.9% (n=56) of the "motives" for the offences, see Table 7a.

The most common method of killing was a "sharp instrument" (59.2% n=42), see Table 8a.

13 defendants, three of whom were females, had their guilty to manslaughter pleas accepted by the prosecution. All 10 male defendants whose pleas were accepted had killed male victims.

Out of 54 contested cases where provocation was under consideration 28 resulted in murder convictions. Even allowing for the 13 cases where the Crown accepted a plea of guilty to manslaughter, overall the defence was unsuccessful in 41.8% of cases.

17 provocation verdicts resulted in sentences of imprisonment of 5 years or more compared to 5 unspecified manslaughter verdicts, see Table15.

Men (together with one female co-defendant) killed all the 16 female victims. In total 12 male defendants who killed 11 female victims were convicted of murder, see Table 16. Only four cases of a male killing a female (25%) clearly resulted in a successful provocation plea.

Of the 11 female defendants only one killed another female. She in turn was the only female convicted of murder. The remaining 10 all killed men, of whom 9 were in a sexual relationship with the victim. Nine were convicted of manslaughter and one was found unfit to plead.

ANNEX: PROVOCATION CASE SYNOPSES

Cases 1& 2

Two co-defendants, D1, a male of 35 and a D2 female aged 23, went to the victim's house. V was aged 67 and was alleged to have sexually abused D2. They wished to confront him and bring the abuse into the open. They argued. D2 slapped the victim. D1 got two knives from the kitchen. D2 held a knife at the victim's back. It entered the victim's body after V had lunged at D2. They claimed it was accidental. The victim, who had terminal cancer, died of stab wounds and injuries to his head. A jury convicted both defendants of manslaughter for which they each received three years imprisonment.

Case 3

D, a male aged 40, returned to his flat to hear V's TV on at a very high volume. There had been problems over the years about noise. D went upstairs to V's flat. There was a fight. D picked up the television set above his head and brought it down on V's head. D then applied pressure with the TV on top of the victim suffocating him. D admitted killing V, aged 53, "after a violent and heated argument. Many years of provocation led me to explode into a murderous and uncontrollable fit of fury". A jury convicted D of manslaughter and he received a sentence of six years imprisonment.

Case 4

D, a male aged 33, used to buy drugs from V, aged 30, a known hard man. He visited D in his home and demanded money for drugs. There was a fight. V threatened D with a knife. D grabbed the knife and stabbed V eighteen times. D claimed self-defence and provocation. His plea of guilty to manslaughter was accepted and he received four years imprisonment.

Case 5

D, a male aged 31, worked as a security guard at a supermarket. V, a female aged 40, also worked there. D claimed they sometimes had consensual sex in return for him stealing food for her. But she threatened to report him for rape and to tell his wife. In consequence, he strangled her behind the staff entrance of the supermarket. A psychiatric report found no evidence of mental disorder and concluded that diminished responsibility was not relevant. A jury convicted of murder and received a sentence of life imprisonment.

Case 6

D, a male aged 32, owed V's sister money for cannabis, which he had never given her. V, who had never met D, went to his house. He threatened to remove things from the house. D asked him to leave. A fight followed. D's partner got a knife from the kitchen. D got hold of it and stabbed V, aged 27. A psychiatric report found no mental disorder and was of the view that diminished responsibility was not relevant. A jury convicted D of manslaughter by reason of provocation and he received five years imprisonment.

Case 7

D, a male-aged 30, had an argument with V, a male aged 19, outside a local pub. A single blow to the head killed V, who was known to D as they drank together. D claimed he acted in self-defence. A plea of guilty to manslaughter was accepted and D received 21 months imprisonment.

Case 8

D, a male aged 26, had been assaulted by V, a male aged 25, on four previous occasions. V entered D's home with a knife and threatened him and his family. D managed to get possession of the knife and lashed out with it killing V. A jury returned a majority verdict of manslaughter by reason of provocation. D received nine years imprisonment which was reduced to seven years on appeal.

Case 9

D, a male aged 37 who was born in Ireland, went to V's flat where D's sister had returned having sought refuge from V's domestic violence by staying for a period at D's home. There was a long history of confrontation between D and V, aged 48. As they argued they fought and D hit and kicked V repeatedly killing him. A psychiatric report stated that there was no diminished responsibility. However, it concluded that there was compelling evidence that D had personality characteristics, namely dependent personality disorder and paranoid jealousy, "which made him singularly vulnerable to the provocation" such that "a reasonable man with these stable characteristics of personality would have behaved as he did under such very extreme provocation." A jury returned a manslaughter verdict on the basis of provocation and D was given a probation order for three years.

Case 10

D, a male aged 47, killed V, a male aged 48, who he had met in prison. It was described as a frenzied attack made after V had insulted him at the home of an acquaintance. The trial was stopped when D pleaded guilty to manslaughter. No jury was sworn. D received five years imprisonment.

Case 11

D, a male aged 21, killed V, a 72 year-old male, by striking him on the head with a heavy object. V was gay and the offence took place after he had propositioned D for sex. D, who had known V for several years, said he " flipped" and afterwards took V's TV set to make it look like a burglary. A psychiatric report prepared for the court found no evidence of mental disorder. Immediately before the trial D admitted the killing but claimed he had been provoked. A jury returned a murder conviction.

Case 12

D, a male aged 22, killed V, a 34 year-old male, in his partner's bedroom. A fight had ensued after D had found V having sex with his girlfriend. D hit V with a metal pole and also used a knife. D had consumed both alcohol and cannabis. A psychiatric report for the defence found no abnormality of mind but concluded that anxiety and "the disinhibitory effects of alcohol and cannabis may have further contributed to his extreme distress and anger". A jury convicted D of manslaughter by reason of provocation and he received six years imprisonment.

Case 13

D, a male aged 32, killed his 39-year-old partner by inflicting a single knife wound to her chest. V had been the subject of repeated assaults by D. Prior to the offence D and V argued. D claimed that V had goaded him about his appearance and the fact that when he went out shopping he had not bought what was asked of him. In his statement D claimed V had provoked him. A psychiatric report prepared for the court found no diminished responsibility but concluded that D "would have been prone to a considerable degree of disinhibition through the combined effects of alcohol and drugs." A jury convicted D of manslaughter by reason of provocation for which he received a sentence of 8 years and 18 months consecutive for breach of a suspended sentence, making a total of nine and a half years imprisonment.

Case 14

D, a male aged 21, was threatened by V, a male aged 29, over a period of time. His mother was also threatened. He went to a friend's home. V was already there. A fight broke out and D hit V over the head with a garden spade, killing him. A jury returned a majority verdict of guilty to manslaughter by reason of provocation and he received six years imprisonment.

Case 15

D, a male aged 26, killed his female partner, aged 29, by stabbing her with a kitchen knife. D was jealous of V's relationship with another man. A jury returned a majority verdict of murder.

Case 16

D, a male aged 31, killed V, a 52 year-old male, by repeatedly hitting him after an argument. They lived together in a DSS hostel. V had complained about the noise and was accused of being a grass. D and his friends had been drinking heavily. The jury returned the verdict of guilty to manslaughter by reason of provocation. D received a sentence of six years imprisonment.

Case 17

D, a male aged 26 and born in Australia, had an argument with his older brother who accused a mutual friend of being a grass to the police. The argument took place as they were parked at a local beauty spot. D hit V over the head with a car jack. A psychiatric report for the defence found no diminished responsibility but concluded that this was a case of " battered brother syndrome" and that the jury should consider the whole of what the deceased said and did to D. D's plea of guilty to manslaughter by reason of provocation was accepted and he received a sentence of five years imprisonment.

Case 18

D, a male aged 17, stabbed his stepfather, aged 34, after an argument at the family home. At the time D was intoxicated. A psychiatric report found no evidence of mental disorder. A plea of guilty to manslaughter by reason of provocation was accepted and D received a sentence of four years imprisonment.

Cases 19, 20 & 21

D1, aged 32, had a stormy relationship with his female partner, the 37 year-old V. The two co-defendants, a male-aged 28 and a female aged 36, came to stay. They all spent the day of the offence drinking. There was an argument because V was due to give evidence against D1 for domestic violence. V was beaten to death. Each blamed the other. Psychiatric reports on two of the defendants found no mental disorder. The jury convicted each of the defendants of murder.

Case 22

D, a male aged 54, killed his female ex partner, aged 33, by stabbing her in the stomach. D hounded V to resume their relationship but she told him she was to marry a former partner. D went to her home and stabbed himself after the offence. A psychiatric report for the prosecution found no mental disorder but concluded that although D had experienced feelings of jealousy "these were within the normal range and not pathological." A jury convicted him of murder.

Case 23

D, a male aged 32 and born in Bangladesh, stabbed his wife, aged 25, to death after an argument over the burning of some food while she was cooking. A psychiatric report instructed by the defence concluded that D was suffering from a depressive illness and that this "abnormality of mind was sufficiently severe to substantially impair his responsibility for the alleged offence". The jury returned a majority verdict of murder.

Case 24

D, a male aged 52 and born in Vietnam, stabbed his wife at the family home after she had refused to end an affair. D said she had laughed at him. A psychiatric report for the prosecution found abnormal personality traits affected by jealous possessiveness of his wife but concluded that this was not enough to support a plea of diminished responsibility. The jury returned a majority verdict of manslaughter for which he received four years imprisonment.

Case 25

D, a 31 year-old male, had an argument with a group of boys on the bus. He later sought them out. A fight followed and D stabbed V, a 16-year-old male, who was one of the group on the bus. D pleaded provocation, self defence and lack of intent. A jury convicted him of murder.

Case 26

D, a black male aged 32, was involved in a long-standing dispute with V, a male aged 42, who went to D's home and taunted him. D went out armed with a knife. There was an argument and D stabbed V. A psychiatric report prepared for the court found no mental disorder and concluded that a defence of diminished responsibility should not be available. A plea of guilty to manslaughter was accepted and D received a sentence of three and a half years imprisonment.

Case 27

D, a male aged 20, went to V's home to collect the proceeds of a burglary they had recently committed. An argument ensued. D stabbed V, aged 22, in the chest. D claimed that V had become violent. D's plea of guilty to manslaughter was accepted and he received a sentence of six years imprisonment.

Case 28

D, a male aged 23, who was a drug addict, stabbed the victim, a male aged 29, who was a drug dealer. D felt that V was pushing him to go back on to heroin. D entered the house of a friend of the victim's having consumed drink and drugs, he claimed he could not remember anything about the attack. A psychiatric report for the prosecution ruled out diminished responsibility but mentioned the possibility of provocation linked to D's physical dependence on drugs as a characteristic. The jury convicted D of murder.

Case 29

D, a male aged 36, was involved with the victim in the supply of drugs. Having bought drugs from V, a male aged 34, D sold them on. V went to D's flat to get him to pay the money he owed. An argument followed and D stabbed V twice. A plea of guilty to manslaughter on the basis of provocation was accepted and D was sentenced to 8 years imprisonment, reduced to five years on appeal.

Case 30

D, a female aged 32, killed her partner, aged 42, by stabbing him. They had been drinking and had an argument at their home. D claimed V was aggressive towards her and feared he was going to attack her. In her statement D said "he was going at me, I didn't mean to do it." Unable to calm V down D had run into the kitchen to get a knife. She then claimed D staggered towards her and was impaled on the knife. A psychiatric report for the defence diagnosed alcohol dependence syndrome and battered woman syndrome as a basis for diminished responsibility. It also stated "if the defence of provocation was presented... the psychological effect of battered woman syndrome was an enduring characteristic." The jury returned a manslaughter verdict and D was sentenced to four years imprisonment.

Case 31

D, a male aged 34, killed V, a male aged 58. Following his release from prison D visited a house and took part in an arm wrestling competition with V who lost. An argument followed and D repeatedly struck V with a broom handle. Prior to the offence D had consumed drink and drugs. A psychiatric report for the prosecution revealed no diminished responsibility. The jury returned a verdict of guilty to manslaughter by reason of provocation. D received a sentence of eight years imprisonment.

Cases 32, 33 & 34

3 male co-defendants aged 18, 19 and 22 were involved in a street fight which resulted in V, a male friend aged 34, being beaten to death. All three claimed the victim had provoked them. Psychiatric reports on the defendants ruled out diminished responsibility. The jury convicted all three of murder

Case 35

D, a male aged 28 killed his lover, aged 28, by stabbing her with a pair of scissors and a knife. After unprotected sexual activity V had told him that she was HIV positive. A psychiatric report for the defence found evidence of post traumatic stress disorder and substance abuse problems which "could be regarded as causing a degree of diminution of responsibility". It also stated that individuals who suffer from post traumatic stress disorder are "said to be more prone to acts of violence" because of irritability or outbursts of anger". D pleaded guilty to manslaughter on the basis of a combination of provocation and diminished responsibility. The jury returned a majority verdict of murder and D was sentenced to life imprisonment.

Cases 36 & 37

Two male co-defendants, aged 20 and 22, had an argument with V, a male aged 29, who was a stranger. V, who was blind, was alleged to have committed a rape. They argued in a car park outside a pub. V was beaten to death. Both Ds were intoxicated. One of the Ds pleaded guilty to murder and the other was convicted of murder by a jury.

Cases 38 & 39

Two male co-defendants, both aged 22, knew the victim, a male aged 59, who had made a homosexual advance to one of the defendants, D1. As a result D1 armed himself with a knife before returning to the victim's flat with his co-defendant. A struggle took place and the victim was stabbed to death by D1 with D2 present. A psychiatric report on D1 noted a long history of anti-social behaviour and drug abuse but found no mental disorder. D1 pleaded guilty to murder while a jury convicted D2 of murder after a trial.

Case 40

D, a male aged 18, was involved in an argument with the victim, a male aged 29, outside the latter's house. The argument was about drugs. D armed himself with a knife and confronted V who he stabbed to death. D admitted the stabbing but claimed self-defence and provocation. A jury convicted him of manslaughter for which he received six years detention and one year consecutive for having an article with a blade in a public place. A psychiatric report for the prosecution found no mental disorder and concluded that the diminished responsibility plea should not be available.

Case 41

D, a male aged 22, was involved in an argument in a public house with the victim, a male aged 29. The argument concerned D's girlfriend with whom the victim was also involved sexually. D had armed himself with a kitchen knife and stabbed V in the course of the argument. A psychiatric report for the defence found no evidence of mental disorder. At his trial the accused pleaded self-defence and provocation. The jury returned a manslaughter verdict on the basis of provocation for which he received a sentence of seven years imprisonment.

Case 42

D, a male aged 49, armed himself with a knife and forced his way into the victim's (a male aged 23) house. He accused the victim of informing the police about drug dealing. An argument ensued and D stabbed the victim to death. A psychiatric report for the defence found no evidence of mental disorder but a history of drug and alcohol addiction. The jury convicted D of manslaughter on the basis of provocation for which he received a sentence of three and a half years imprisonment.

Case 43

D, a male aged 42, stabbed his wife to death at the matrimonial home. V, aged 35, had informed D that she was seeing someone else as he had left to live with another woman. V had filed for divorce and refused take him back. D admitted the killing but claimed he was provoked. A psychiatric report for the prosecution concluded that although D had significant problems with alcohol misuse he did not come within the scope of diminished responsibility. The jury convicted D of murder.

Case 44

D, a male aged 42, was a friend of V, a male aged 33. Following an earlier argument between them, V went to D's house to continue the dispute. Both had been drinking. V hit D who picked up a knife he kept in the hall for defensive purposes having been burgled. D stabbed V fatally with the knife. A plea of guilty to manslaughter by reason of provocation was accepted by the prosecution and D was sentenced to five years imprisonment. D had been registered as disabled since 1992.

Case 45

D, a female aged 42, killed her male lover, aged 46, by inflicting a single stab wound to his chest with a kitchen knife. They were arguing about V's common-law wife with whom he still lived. They had both been drinking. V called D disgusting and a terrible mother. D said "I just flipped. I grabbed the knife and stuck it in him." The knife had been in a cutlery drawer some 8-9 feet away. A psychiatric report for the prosecution found a history of depression and anxiety together with long-standing alcoholism. However, it concluded that there was "no sufficient case to argue that she had an abnormality of mind at the material time that would substantially impair her responsibilities". A jury convicted her of manslaughter by reason of provocation for which she was sentenced to five years imprisonment.

Case 46

D, a black male aged 21, was involved in a dispute with V (a male aged 52) his neighbour about D's dog. This led to a fight between them outside D's home after he had been confronted by a group of neighbours unhappy about the noise his dog made. D had already picked up a kitchen knife at a friend's home before he returned to collect his dog. In the course of the argument V died from knife wounds inflicted by D. The jury returned a verdict of guilty to manslaughter by reason of provocation and D was sentenced to five years imprisonment.

Case 47

D, a male aged 29, met V, aged 38, in prison. They stayed friends. D believed V had informed on him and during a drive in D's car, D struck V on the head with a metal bar killing him. A psychological report for the defence found mild learning disability. D pleaded both diminished responsibility and provocation but the jury, by a majority verdict, convicted him murder.

Case 48

D, a male aged 16, stabbed his girlfriend, aged 30, with a kitchen knife outside a public house. V told D she had been raped. D planned to confront the man in question and armed himself with the knife before leaving home. All three had left the pub. D saw V behaving in an affectionate manner towards the man alleged to have raped her. In the course of their argument D stabbed V. A jury convicted D by a majority verdict of manslaughter by reason of provocation. He was sentenced to four years detention.

Case 49

D, a female aged 26, met V, a male aged 18, at a nightclub. They spent the night together. V invited his friends to D's house to meet her. As they were leaving D claimed that £45 was missing from her handbag. She armed herself with a kitchen knife and in the course of an argument stabbed V with it. A psychiatric report for the defence found no evidence of mental disorder. At the trial the jury by majority verdict convicted D of manslaughter on the basis of provocation. She received a sentence of three years imprisonment.

Case 50

D, a female aged 45 born in Pakistan, was informed by her husband, V aged 54, that he had divorced her 6 years earlier in Pakistan. D claimed to have been provoked by V over many years through sexual, violent and verbal abuse. In the course of massage she poured petrol over his groin and set him alight. He died of the injuries received. D said "On that night he came to the bedroom, there was an argument. He was abusive and using swear words. A psychiatric report for the defence concluded that "under repeated provocation it could be said that an irresistible impulse had temporarily deprived her of responsibility for her actions. A failure ' to exercise will power to control physical acts' in the words of Lord Chief Justice Parker in R v Byrne (1960)". The jury returned a verdict of guilty to manslaughter by reason of provocation for which she received a sentence of four years imprisonment.

Case 51

D, a female aged 36, had been the subject of considerable domestic abuse by her male partner, V aged 36. They had an argument in her flat. V grabbed her son and was choking him. D got a knife from the kitchen and stabbed V once. She was intoxicated at the time. A psychiatric report for the defence diagnosed a depressive illness which "would give rise to an abnormality of mind (induced by disease) such as to substantially impair her responsibility for her actions." With reference to provocation the report concluded that "she might be construed as 'the reasonable woman with a history of severe domestic violence, whose mental state was modified permanently such that she believed this to be the only course of action available'". The prosecution accepted a plea of guilty to manslaughter on the basis of provocation for which she received a sentence of three and a half years imprisonment, reduced on appeal to two years.

Case 52

D, a male aged 17, killed a male acquaintance, V aged 16, by stabbing him in the neck. V had made suggestive comments to D's girlfriend at a party. The offence took place at a local park after the party. A psychiatric report for the prosecution considered that there was no evidence to suggest diminished responsibility but that D presented as a jealous individual who "may be considered to have lost his self-control at the time of the killing." A jury convicted D of murder

Case 53

D, a male aged 29, killed V, a male aged 19, by striking him on the head with a wooden pole. Both D and V were drunk. V was a friend of another man who lived opposite D. V had become aggressive. A psychiatric report for the defence concluded that D was suffering from a depressive illness and at the time of the act "was out of control in an abnormal state of mind, and could not have formed intent to kill". Ds plea of guilty to manslaughter on the basis of provocation was accepted and he was sentenced to five years imprisonment.

Case 54

D, a male aged 42, strangled V, a female aged 77, in her bedroom. D had known V for five years. They had had a sexual relationship for some time. A psychiatric report for the prosecution concluded that there was no evidence of diminished responsibility but stated that " the risk of his sexual practices with the victim being exposed in a setting of an already precarious self image, would have constituted potent triggers for his having erupted with an outburst of violence." A jury convicted D of murder.

Case 55

D, a male aged 22, met V, a male aged 53, on the underground train. V took D home. D stabbed V after an unwanted sexual advance. A psychiatric report for the prosecution found no evidence of diminished responsibility. The jury, by a majority, convicted D of manslaughter on the basis of provocation and he received a sentence of ten years imprisonment reduced to seven years on appeal.

Case 56

D, a male aged 23, was lodging on a temporary basis with V, a female friend, aged 23. They had an argument over the fact that D had a gambling problem. As a result D strangled V with a cord from her judo outfit. A psychiatric report for the defence found no evidence of diminished responsibility and considered that, although V had kicked him in the groin, this would not have been adequate to trigger his anger in the context of provocation. The jury convicted D murder.

Case 57

D, a male aged 26, killed his former partner, V, a female aged 26, by stabbing her with a knife. V had moved out and begun a relationship with another man. She complained of D's continued violence, including knife threats. There was a dispute over the children. D admitted the killing and said he had snapped. At his first trial D was convicted of murder but an appeal was allowed on the basis that the verdict was unsafe as result of the decision in R v Smith (Morgan). A psychiatric report for the defence concluded that "a combination of his over controlled personality and the subsequent building up of huge anger, with it being unleashed, and the depressive illness, would render him at the time of the killing, in a state of abnormal mind such that his responsibility for the killing would have been substantially impaired". It also concluded that the " enduring characteristic of over control" and " temporary characteristic of depression which would have reduced his self-control" together might mean that " a reasonable man could have reacted in the way that he did." At his second trial the file reveals that the jury asked the judge the following questions:

1. Do we pose questions of provocation or mental health separately (as individual tests) or in combination?

2. Many of the jury consider that neither factor was sufficient by itself but maybe the combination of the two justifies manslaughter.

The jury returned a majority verdict of manslaughter by reason of provocation and D was sentenced to 8 years imprisonment.

Case 58

D, a male aged 53, killed V, a male aged 27, in a public house by stabbing him. Both had been involved in a long running feud. D said he acted in self-defence and claimed he had not taken the knife to the pub but had disarmed someone there and then used it. A psychiatric report for the prosecution found no grounds for a plea of diminished responsibility. A jury convicted D of murder.

Cases 59 & 60

Two co-defendants, D2, a mother aged 51 and D1, her son aged 19, lived with V, the husband/father of each, aged 50. V was abusive towards D2 and threatened to kill her. In response D1 hit V over the head with a golf club while he was asleep. Despite evidence of provocation D1 pleaded guilty to murder. Psychiatric reports on behalf of D2 diagnosed dementia and she was found unfit to plead.

Case 61

D, a male aged 38 and born in Jamaica, killed his partner, a female, aged 34, by hitting her over the head. V had ended their relationship. D claimed self defence because V had attacked him with the knife. The jury convicted him of manslaughter and he received six years imprisonment reduced to five years on appeal. In the course of the appeal the court stated:

"The defence to the charge of murder was threefold: it was suggested that he lacked the necessary intent; it was suggested that he suffered from diminished responsibility; and, it was suggested that this was a killing under such provocation as to reduce the appropriate verdict murder to manslaughter.

In sentencing him, the judge had no positive indication from the jury as to which of those or any combination of them had led them to conclude that he should be acquitted of murder. But it was pretty clear, as the judge said, that their verdict was either because he was suffering from diminished responsibility or because of provocation. Perhaps diminished responsibility was the front runner of those two.

The defence had proffered, among other witnesses, a psychiatrist, who had concluded that the applicant had suffered from what he referred to as a "depressive episode ". The Crown's case apparently was that the depression, which he undoubtedly suffered from, was a result of the incident and not a cause of it, but that was not the psychiatrist's view. In his opinion, the depressive episode constituted an abnormality of mind for the purpose of the statute.

The judge, in his sentencing remarks said that he assumed that the verdict of manslaughter was connected with the accused's mental state."

Case 62

D, a male aged 19, knew V, a male aged 34. V was the boyfriend of his girlfriend's mother. V and the mother had a history of domestic problems which caused ill feeling within the family. On the day of the offence V and the mother were involved in a scuffle. D was telephoned and arrived armed with the knife. A fight followed which resulted in D stabbing the victim. A jury convicted D of murder.

Case 63

D, a female aged 50 of Spanish origin, killed her partner, V a male aged 55, by stabbing him with a knife. There was a history of domestic violence in the relationship. On the day of the offence D was drunk and became aggressive towards V. He picked up a knife and threatened her with it. In the course of the struggle D stabbed V. A psychiatric report for the prosecution concluded there was no diminished responsibility but that there was evidence of self induced intoxication. With regard to provocation it stated "there are known psychological characteristics applicable to the deceased which could be taken into account when deciding whether she was in fact provoked." The jury convicted D of manslaughter for which she received four years imprisonment.

Case 64

D, a male aged 52, stabbed his best friend, V a male aged 32, who had begun an affair with D's wife. The couple had recently separated and as a result of the affair D was angry and jealous. He went to his wife's home and found her with V. He attacked V with the knife before cutting his own throat, which required emergency surgery. A psychiatric report for the defence diagnosed acute adjustment disorder and concluded that as result D "was suffering from diminished responsibility due to a mental illness. This resulted in low mood, suicidal thoughts and behaviour, as well as an inability to control his anger on extreme provocation, leading to the fight. Patients with adjustment disorder show symptoms beyond the normal and expected reaction to the stressor." The jury convicted D of murder.

Case 65

D, a male aged 27, hit V, a male aged 37, on the head with a piece of wood. They had argued outside a pub. D armed himself with the wood and returned to assault V fatally. He also assaulted a second V. D relied on provocation and lack of intent at his trial. He also argued that V had an abnormally thin skull. A jury convicted D of murder and he was sentenced to life imprisonment.

Case 66

D, a male aged 43, stabbed V, a male aged 45, in D's garden. D was drunk. They had never met but V was the stepfather of Ds daughter's boyfriend of whom D did not approve. V had gone to Ds house to 'sort him out'. D relied on provocation, lack of intent and self defence. A jury convicted D of manslaughter for which he was given 6 years imprisonment.

Case 67

D, a male aged 47, strangled his wife, aged 41. They argued about Vs affair and the fact that she might leave him. A single psychiatric report for the CPS found no DR but stated that the killing was likely to have resulted "from his intense emotional arousal at that time." A jury, by a majority verdict, convicted D of murder and he was sentenced to life imprisonment.

Case 68

D, a male aged 17, killed V, a male aged 53, by kicking and stamping on him. D claimed V, whom he knew as a passing acquaintance, had grabbed his private parts and indecently assaulted him outside Ds flat. D pleaded self defence but refused to plead provocation. The trial judge left provocation to the jury but only dealt with it briefly. A jury convicted D of murder and he was detained for life. An appeal was lodged on the basis that manslaughter by reason of provocation was the appropriate verdict. The result is not on file.

Case 69

D, a female aged 55, stabbed her male partner, aged 39. Theirs was a violent relationship and V was drunk. They argued and D grabbed a knife. D had a psychiatric history. 2 reports, one for the defence and one for the CPS both favoured "abnormality of mind" on the basis depression but considered that the matter of "substantial impairment" was a matter for a jury. The report for the defence also favoured provocation stating that Ds depression and anxiety "may have rendered her increasingly liable to react to circumstances in an uncontrolled, sudden and impulsive fashion." Ds plea of guilty to manslaughter was accepted and she was given a 2 year probation order with a condition of mental treatment.

Case 70

D, a male aged 52, beat his female partner, aged 46, to death during a drunken rage. D had a history of violence towards V and was a heavy drinker. A psychiatric report found no mental disorder. However, there is a suggestion on the file of DR based on chronic alcoholism as well as provocation. A jury convicted D of murder and he was sentence to life imprisonment with a recommended tariff of 16 years.

Case 71

D, a female aged 21, stabbed her male partner, aged 27. Theirs was an abusive relationship and they argued over a plate of chips. One psychiatric report for the CPS found no DR but a second for the court diagnosed 'battered woman syndrome' but also was of the view that "it does not appear that the defendant had, at the material time, an abnormality of mind such that she might be able to offer a defence of diminished responsibility, although I am not going to exclude this confidently on the basis of a single examination." This report also considered that 'battered woman syndrome' might be a characteristic which the jury would be entitled to take into account in considering provocation. A third report for the defence also diagnosed 'battered woman syndrome' but considered that the question of "substantial impairment" was a question for the jury. It also viewed this condition as an enduring "'mental characteristic', which would mark her out from the ordinary woman in such a situation." Ds plea of guilty to common law manslaughter was accepted and she was given a 3 year probation order. The trial judge stated that it was a "wholly exceptional case" giving rise to "a wholly exceptional sentence."

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