Manslaughter - Provocation

Date: Produced 24 February 2010
Title: Homicide
Offence: Manslaughter: Provocation
Legislation: Offences Against the Person Act 1861 section 5
Mode of Trial: Indictable only
Statutory Limitations & Maximum Penalty: Life imprisonment
Sentencing Range: Serious specified violent offence. Schedule 15A CJA 2003 applies

Relevant Sentencing Guidelines

Definitive Guideline "Manslaughter by Reason of Provocation" issued by Sentencing Guidelines Council applies to sentences imposed after 28 November 2005

Factors to take into consideration:

• The sentences for public protection must be considered in all cases of manslaughter.
• The presence of any of the general aggravating factors identified in the Councils Guideline Overarching Principles: Seriousness or any of the additional factors identified in this Guideline will indicate a sentence above the normal starting point.
• This offence will not be an initial charge but will arise following a charge of murder. The Council Guideline Reduction in Sentence for a Guilty Plea will need to be applied with this in mind. In particular, consideration will need to be given to the time at which it was indicated that the defendant would plead guilty to manslaughter by reason of provocation.
• An assessment of the degree of the provocation as shown by its nature and duration is the critical factor in the sentencing decision.
• The intensity, extent and nature of the loss of control must be assessed in the context of the provocation that preceded it.
• Although there will usually be less culpability when the retaliation to provocation is sudden, it is not always the case that greater culpability will be found where there has been a significant lapse of time between the provocation and the killing.
• It is for the sentencer to consider the impact on an offender of provocative behaviour that has built up over a period of time.
• The use of a weapon should not necessarily move a case into another sentencing bracket.
• Use of a weapon may reflect the imbalance in strength between the offender and the victim and how that weapon came to hand is likely to be far more important than the use of the weapon itself.
• It will be an aggravating factor where the weapon is brought to the scene in contemplation of use before the loss of self-control (which may occur some time before the fatal incident).
• Post-offence behaviour is relevant to the sentence. It may be an aggravating or mitigating factor. When sentencing, the judge should consider the motivation behind the offenders actions.

Tables:

Type/Nature of Activity Sentence Ranges & Starting Point
Low degree of provocation: Sentence Range: 10 years life
A low degree of provocation occurring
over a short period Starting Point 12 years custody
Substantial degree of provocation: Sentence Range: 4 9 years
A substantial degree of provocation
occurring over a short period Starting Point 8 years custody
High degree of provocation: Sentence Range: if custody is necessary, up to 4 years
A high degree of provocation occurring
over a short period Starting Point 3 years custody

Additional aggravating factors Additional mitigating factors
1. Concealment or attempts to dispose of evidence 1. The offender was acting to protect another
2. Dismemberment or mutilation of the body 2. Spontaneity and lack of premeditation
3. Offence committed in the presence of a child/children or other vulnerable family member 3. Previous experiences of abuse and/or domestic violence
4. Evidence that the victim presented an ongoing danger to the offender or another
5. Actual (or reasonably anticipated) violence from the victim

Relevant Sentencing Case Law:

AGs Ref. Nos. 74, 95 and 118 of 2003 (Suratan and others) [2003] 2 Cr. App. R. (S.) 42 When sentencing for manslaughter by reason of provocation, the judge just make these assumptions in the offenders favour:-
at the time of the killing, the offender lost his self-control;
this was caused by things said or done by the deceased;
the offenders loss of control was reasonable in all the circumstances;
the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence to manslaughter.

Recent Decisions in CSP at B 1-2.3 divided into: arising out of family relationships etc; arising out of disputes etc.