The defence of provocation (1)

I have been meaning to write about the defence of provocation in the context of spousal abuse and in the meantime there have been at least three widely reported domestic homicides, the latest victim being Ronke Shonde.

We do not know exactly what took place at the Shonde residence that led to the death of Ronke Shonde. What we know are from the reports of the killings and the accused’s tale of an accidental death which he knows nothing about. The objective of this article is neither to consider the facts of this particular case nor to suggest a defence for the accused, but to simply consider the defence of provocation in Nigeria, and illustrate the difficulties with the defence using examples from other jurisdictions.

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 classic common law definition for provocation comes from Devlin J in R v Duffy [1949] 1 All ER 932: “Provocation is some act, or series of acts done … 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 or her mind.”

What was Devlin J’s direction to the jury in R v Duffy has been codified to a large extent in statutes. In whatever form it takes, there are three main elements to provocation. First, it requires that there be a sudden and temporary loss of self-control. In recent years, particularly with domestic killings, this aspect of provocation has been troublesome as it has been criticised as a typically male response to provocation. I will discuss this in further detail later.

The second element is the reasonable man standard. Although in jurisdictions like Ireland, the accused’s defence of provocation is considered subjectively (the accused’s state of mind and reaction to the provocative acts) most jurisdictions, including Nigeria, insist on an objective standard (the reasonable man) because everyone in society must be held to the same standard of what is acceptable behaviour. The third element to the defence is proportionality (whether the accused’s reaction was proportional to the provocative act).
Section 283 of the Criminal Code provides that,

The term “provocation,” 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 his 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.

When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as aforesaid, the former is said to give to the latter provocation for an assault.

A lawful act is not provocation to any person for an assault. An act which a person does in consequence of excitement given by another person in order to induce him to do the act, and thereby to furnish an excuse for committing an assault, is not provocation to that other person for an assault.

An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who knows of the illegality.

In other words, a wrongful act or an insult targeted at a person or their spouse, parents, children, or other relations can be provocation which leads to an assault on the person doing the wrongful act or insult. The ambit of provocation in our law extends quite comfortably to include chivalry.

Section 284 of the Criminal Code codifies the three main elements of the defence of provocation stated above, as follows:
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 his 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.

Whether any particular act or insult is such as to be likely to deprive an ordinary person of the power of self-control and to induce him to assault the person by-whom the act or insult is done or offered, and whether, in any particular case, the person provoked was actually deprived by the provocation of the power of self-control, and whether any force used is or is not disproportionate to the provocation, are questions of fact.