Problematic provocation plea

CHIEF Justice Ivor Archie’s call for legislative intervention to deal with the provocation defence is one that should be heeded.

A panel of the Court of Appeal this week split over the finer details of the law in the case of a man who had been sentenced to hang for murder.

Two justices of appeal suggested the man suffered a procedural disadvantage because a jury had not been asked to consider provocation. But Chief Justice Archie disagreed.

“Any reasonable jury, properly directed, would reject the partial defence of provocation,” he said, before going on to suggest the law needs to be addressed.

A year ago, a different panel of the same court examined the same issue and called on MPs to act, saying, “We are of the view this is a matter which may require consideration by the legislative arm.”

The provocation defence of section 4B of the Offences Against the Person Act allows someone charged with murder to be found guilty of a lesser offence if the facts disclose goading.

The law has never made sense.

It requires proof that the killer was driven “to lose his self-control” because of words said or deeds done. At the same time, a jury must be sure that such was “enough to make a reasonable man do as he did.”

But how can it be “reasonable” to lose self-control because you are vex? How can rationality, once abandoned, be reinvoked?

The way this rule has been applied, too, suggests it is not a tool of justice but rather injustice, particularly for women.

For instance, in 2011, a security guard slept overnight under a shed with a cutlass before chopping a woman on the neck and killing her at her workplace. He claimed his actions were due to his discovering the woman was involved with another man. Rather than murder, this was classed as manslaughter.

In 2003, a man followed his ex-common-law wife and climbed into a maxi taxi she was in before stabbing her 19 times. Instead of murder, a court substituted manslaughter because he said he acted after he discovered the woman’s infidelity, and was ill.

A man who, in 2005, killed a woman and her son, stabbing the latter more than a dozen times, said an argument precipitated it all. He threw the woman’s body into a latrine, wrapped her son’s body in a fishing net and threw it into a river. Manslaughter, not murder.

Provocation, as applied in these cases, is not a defence. It is a perversion of justice.

This country is one of only two in the world that still retain this law. The UK and Commonwealth countries such as Australia have long moved on.

It is time for us to do the same.