Coddington on Provocation
I support the provocation partial defence going, but Deborah Coddington gives an example to argue the other way:
This is no criticism of Mrs Elliott’s stoicism, but if I heard someone stabbing one of my daughters on the other side of a locked door, I hope I would react swiftly.
Proficient with firearms, I would fire through the door lock. Finding my daughter dead inside, I would shoot and kill the bastard.
I would re-load and shoot again to make sure he was dead – probably not 216 times.
I would call the police, I’d be arrested and charged with murder, and I’d throw myself on the mercy of the court.
Should this crime be treated on an equivalent basis as the crime committed by Clayton Weatherston? Is it comparable as that committed by him, or other crimes committed by, say, Paul Dally (the killer of Karla Cardno) or Jules Mikus (the killer of Teresa Cormack)?
And what about when it comes to sentencing – should there be any mitigating circumstances taken into account by the judge?
My response is that firstly she could claim self defence. It is reasonable to think that having killed her daughter, he may try and kill her.
But what if he had finished the job and was walking away from the house so there is no issue of self defence.
Well yes if you do shoot him then, you would be convicted of murder, not manslaughter if provocation goes. But there already is a huge degree of range in the brutality of murders. Being found guilty of the same crime does not mean you are the same of them.
And the key thing is the circumstances could be taken into account with sentencing. A Judge can give a lesser sentence than life under s102(1) of the Sentencing Act 2002.
In the conditions Deborah describes, a Judge could give a suspended sentence (no jail time unless you reoffend) for the killing.
August 2nd, 2009 at 12:32 pm
But the big problem is you are effect removing a major finding of fact from the Jury to the Judge. Having a Judge decide if there was provocation in the Ambach case (for example) and thus requiring a lesser sentence than life is going to raise an even bigger stench than having the jury to decide it.
August 2nd, 2009 at 12:38 pm
“A Judge can give a lesser sentence than life under s102(1) of the Sentencing Act 2002.”
There is no other guidance in the act than that though.
What that means is that if your circumstances are the same as someone else who got 10 years for murder, even though it is no longer mandatory you will still get the same, as there is a further statutory principle that the ‘desirability of consistency of sentences’ must be given weight. At least this is how it has been applied so far.
Only one case of a 90 year old involved in a failed suicide pact attracted less than life as the judge found the situation had never arisen before.
Your call is too simplistic, unless accompanied by a call for the Sentencing Act to give proper guidance on when a judge can go below a mandatory life sentence.
Also, much of the blame for the outcry in the Weatherston case should lie with Justice Potter who rather incompetently allowed provocation to be run in circumstances where she could have found there was no evidential basis for it. Shame on her, as she has allowed Weatherston to bring disrepute on Sophie and the Justice system.
August 2nd, 2009 at 12:38 pm
METCALPH::::::::You are on to it if we are to continue removing the functions of a Jury and judicially sanitising the evidence that they are permitted to hear then we may as well dispense with them altogether. With all their weaknesses I would sooner trust a jury assessment than an ideologically weak Judicial one.
August 2nd, 2009 at 12:40 pm
Or to take an even uglier case – Bruce Emery. As if the provocation defense was removed, Bruce Emery would be convicted of murder. There will be a huge outcry about that. Then when the Judge sentences Bruce and gives him a lighter sentence, the family and other people are going to be extremely furious. I can’t see how this state of affairs is somehow superior to the current state.
August 2nd, 2009 at 12:45 pm
What about the cases of mercy killings that have come before the courts – its not the provocation defense I know and I am no supporter of euthanasia.
But surely the defendant in these cases has the right to put the facts surrounding the crime before the jury and the public for that matter – would you have it differently? So how can any consistency be maintained if don’t allow the defendant to do the same in provocation cases?
Just because someone is the victim of murder does not turn them into Mother Theresa you know?
August 2nd, 2009 at 12:48 pm
“In the conditions Deborah describes, a Judge could give a suspended sentence (no jail time unless you reoffend) for the killing.”
Could. But won’t as the caselaw has almost completely rejected any possibility of that occurring.
August 2nd, 2009 at 12:51 pm
If some one had just murdered my daughter and I had a loaded firearm, I wouldn’t bet on the guy living.
How would anyone really know how they would react in these circumstances? its not something you can prepare for.
The horror, and the effects of it, that sick human beings occasionally release on others should be recognized on our legal system.
Why should the balance of moral behavior be placed on someone who has witnessed the slaughter of a loved one?
August 2nd, 2009 at 12:51 pm
In this instance, and I find that increasingly rare, I agree entirely with Coddington.
I see no reason to remove the provocation partial defence. Moreover, I think the modern fashion to replace common law development with Parliamentary legislation should be opposed as it generally results in the wisdom of ages being discarded for poorly informed political over-reaction.
There is an interesting commentary on that here:
http://www.timesonline.co.uk/tol/comment/columnists/matthew_parris/article6735530.ece
August 2nd, 2009 at 1:02 pm
“Self defence” is legal jargon that includes the defence of others. It is a complete defence (unlike provocation). There are two ingredients:
1. What you BELIEVE the situation to be. Your belief may be mistaken or ill founded but that does not matter. In Deborah’s example this is no problem.
2. Your response needs to be reasonable. Again in Deborah’s example, using a gun (in the absence of some other means such as suitable dog or Tazer) would be reasonable and if the offender dies so be it. The aim is to cause sufficient trauma to the offender that he is immediately disabled – death is likely in such cases. Hence two bullets would be OK if you believed it was necessary to ensure disablement.
Once the ‘danger’ is over, ’self defence’ no longer applies. If the offender is fleeing or asleep, you have no basis for ’self defence’
The defence is open to all – police and anyone else, including prisoners in jail. a police officer frequently relies the defence in carrying out his or her duties. It is a very powerful defence.
Judges effectively allow or disallow running ’self defence’ or ‘provocation’ as a matter of law, and as far as I know you cannot run them together – if you run ‘provocation’ it probably stuffs up ’self defence’.
So the law already addresses Deborah’s concern.
One other point – if you use a firearm in self defence, if there are possession or licencing irregularities, firearms charges may ensue. The police thoroughly investigates this – if there is a death a coroner would expect such an investigation.
August 2nd, 2009 at 1:05 pm
Judges effectively allow or disallow running ’self defence’ or ‘provocation’ as a matter of law, and as far as I know you cannot run them together – if you run ‘provocation’ it probably stuffs up ’self defence’.
I think Bruce Emery’s lawyer ran with a plea of self-defence and the Judge allowed the jury to find him guilty of manslaughter (for which the only possible reason was provocation) instead.
August 2nd, 2009 at 1:11 pm
peterwn: “Again in Deborah’s example, using a gun (in the absence of some other means such as suitable dog or Tazer) would be reasonable.”
Rdiculous. A gun against a knife with most likely the cowardly thug slobbering “Don’t shoot me” is not going to hold up as self-defence.
These alternatives evolved in common law for a good reason – they were necessary.
August 2nd, 2009 at 1:22 pm
David, s102(1) has been used to provide for lesser sentences is euthenasia and assisted suicide type offences – which is one of the reasons we don’t have euthenasia legalised or a defence in NZ. It isn’t necessarily a good tool to be used for provocation.
August 2nd, 2009 at 1:47 pm
Shouldn’t the suspended sentence be reserved for Clayton Weatherston?
August 2nd, 2009 at 2:11 pm
Peterwn: “Judges effectively allow or disallow running ’self defence’ or ‘provocation’ as a matter of law, and as far as I know you cannot run them together – if you run ‘provocation’ it probably stuffs up ’self defence’.”
You can run provocation and self defence together; and self defence is really a ‘justification’ and not a defence. It justifies the use of force ie says that society sanctions it.
August 2nd, 2009 at 2:33 pm
No. We abolished suspended sentences a number of years ago – the 2002 Sentencing Act, I believe.
They were effectively replaced with home detention.
Metcalph – another possible reason is that he lacked the deliberate or reckless intent to kill. This is almost certainly the reason why the jury went the way they did. He didn’t argue provocation, and the judge didn’t put provocation to the jury. Emery argued self-defence and lack of intent.
No need. The law to allow the Sentencing Council to make sentencing guidelines has already been passed.
August 2nd, 2009 at 4:21 pm
Graeme – have another think. Suspended sentences of that sort were abolished much earlier than 2002 and even then were suspended by the Attorney General in most cases prior to that – if you get what I mean.
Re other comments – where judges decide things about running the provocation and ’self defence’, the decisions are appealable. A judge will err on the safe side to minimise the risk of a retrial being ordered.
There was a case where the judge would not let an accused a ‘bob each way’ on provocation and ’self defence’, but the decision may have been ituation dependent.
August 2nd, 2009 at 6:44 pm
“In the conditions Deborah describes, a Judge could give a suspended sentence (no jail time unless you reoffend) for the killing.”
Like Graeme said, there is no longer any such thing as a suspended sentence. The closest you can get now is an order to come up for sentence if called upon.
Don’t forget that in the situation Deborah describes, then to get a lesser sentence she would have to convince the Court that she was provoked. If the Crown, as the prosecuting party, did not accept it (and it may not, as it cannot be seen to encourage revenge killings) then Deborah would have to go to a disputed facts hearing in order to try and convince the Court that she should be allowed to claim provocation. Now the only way that she could convince the Court that she was provoked would be to attack the actions of the person she had killed.
But that is why everybody wants the law changed, so that the accused is not allowed to attack the actions and/or reputation of the deceased.
So what is the point to a change
Graeme, I personally hate the idea of a Sentencing Council and hope the law is changed very soon. Very glad it won’t be coming in.
Peterwn: I have been on a couple of defence teams where we have had ‘a bob each way’. It worked, too.
August 2nd, 2009 at 6:59 pm
I don’t, as it happens. I’m thinking of a judicially-ordered suspended sentence as could be ordered under s 21A of the Criminal Justice Act 1985. I understood such a suspended sentence to be what DPF was referring to. The section was repealed in 2002.
August 2nd, 2009 at 7:09 pm
Self defence must be proportionate and in response to imminent danger there is no other reasonable way out of. She would not qualify for it and without provocation would be convicted of murder.
Further, do you really want to say that vigilantism should net no conviction, no jail time?
In a case like Coddington describes manslaughter best balances our empathy with the motive to kill but our disapproval of the action. Precisely what the type of case a defence of provocation should apply to.
Coddington must have read my piece, In Defence of the Partial Defence of Provocation.
August 2nd, 2009 at 7:22 pm
Graeme, my memory says the same as you have do at your comment of 6.59pm.
August 2nd, 2009 at 7:41 pm
1. Your example is in no way self defence. He would, at the very least, need to be coming at the mother or threatening her in some way. A jury might buy it but they would be wrong in law (jury mercy!)
2. Peterwn – the third limb is that it must actually be self defence. Shooting some bastard for killing your daughter, whilst entirely understandable, is not self defence. Both defences can be run together although it is rare. There has been a school of thought that they are mutally exclusive but case law would suggest that this is not the case. The above scenario could perhaps give an example – if the jury finds on the fact that the killing was motivated not by self defence but revenge then the partial defence would apply.
3. The point that is most missed by opponets to provocation as a defence is that by making it a sentencing option it will not prevent a hearing. I cannot imagine a Judge being prepared to not impose a life sentence due to provocation without hearing evidence. In short, the decision is taken from a jury and givne to a judge.
August 2nd, 2009 at 7:52 pm
GPT1,
I have been in two murder trials where we ran both defences. However, you are right as to it being rare: we only ran the one defence in each case but both times convinced the judge that they had to put provocation to the jury because it was present on the facts. We got manslaughter both times. I remain convinced that one of them is innocent and that for the other it was the correct verdict. Your point at the last part of your second para sums it up exactly.
Your third para is something that both you and I have pointed out before but almost nobody seems to have picked it up for discussion. Are we being unclear or is it a case of the crowd not wanting to have their hobby horse taken away from them?
August 2nd, 2009 at 8:02 pm
FES, the crowd is enjoying picking its bone. Don’t trouble it with the facts.
August 2nd, 2009 at 8:12 pm
I hear you, Alan.
August 2nd, 2009 at 10:45 pm
Pretty much you have to agree with Coddington’s sentiments.
However, you wouldn’t need to shoot the lock off, if the bedroom door opens inward as most do. A decent kick should bust it open.
Then in light of FE Smith’s wisdom in the posts above, would this be a possible scenario? Coddington shoots the scumbag then puts the warning shot through the ceiling.
Might not this provide a reasonable defence FES? The scumbag advances on Coddington. Terrified she puts a warning shot into the ceiling. He keeps coming. Still terrified, and shaking, she drops him with a lucky shot that was meant to have gone over his head.
August 2nd, 2009 at 10:53 pm
Alan – lol.
FES – agree and as a tactic you would want to focus on self-defence but cover yourself (and client’s position) by getting the judge to advise the jury of the option. And that perhaps begs the question of why get rid of provocation? Or should the jury reject SD and then the judge apply provocation in sentencing?
August 2nd, 2009 at 10:55 pm
Ha ha! Yes, in theory it could, Alan, so long as there were no witnesses. And remember that with gunshots you have neighbours who are always willing to give timing on the number of shots and the gap between, so she would need to do the second shot relatively quickly after she shot him…
And then remember to be consistent her story throughout 5 hours of police questioning.
Remember, people, always take your lawyer’s advice and say nothing!
Edit: GPT, that is exactly what we did. I suppose that you could do it in sentencing, because you would already have had the trial. Of course, the judge may take a different view to the jury, so that isn’t such a good thing when a 10 year gap in the MPI is waiting.
August 2nd, 2009 at 11:11 pm
Well yes Jack5 but that wasn’t the scenario put. Equally we could say that IF the bad guy was advancing with a knife and threatening death shooting him would give rise to a self defence argument.
Or more bluntly if my aunt had balls she’d be my uncle.
August 3rd, 2009 at 12:37 am
Graeme Edgeler: “No need. The law to allow the Sentencing Council to make sentencing guidelines has already been passed.”
I thought National was abolishing the Sentencing Council (haven’t checked for a while).
August 3rd, 2009 at 9:37 pm
Why are people (including lawyers) advising lying as an option to get off? Is this a commentary on the sad state of our justice system or merely the true exposition of the defense industry (legal aid anyone)?
Killing someone after the fact may be justice but it is not self defense. That said, get me on a jury and I will let you off if you kill your childs murderer.
August 3rd, 2009 at 11:11 pm
It’s not a matter of how many years you get for murder vs manslaughter
A murder conviction is much more serious indictment than a manslaughter (involuntary) one.
This whole proposal to rid us of the plague of this provocation law is a joke. The law actually worked. That R sole didn’t get downgraded to manslaughter from a successful attempt to argue provocation. He got bounced on it. So the law actually worked, so why change it?? Sure, we didn’t like his attempt to smear her. But who in this country had any sympathy for that, or felt any worse towards Miss Elliot because of it? Noone.
So why change the law that came about because of a need. Laws come from necessity. Repealing a law because someone tried to use it (unsuccessfully) is ridiculous.
This is the same argument given against changing S.59. So it’s an about-face.
August 4th, 2009 at 8:33 am
1) removing the provocation defense sends a clear message to judges that murder by provocation has been moved to a higher standard of crime – and it gives them different maximums and minimums – so tit seems implausible that it would make no difference to the sentances handed down for people like deborah.
2) You have labled them a murderer. These sorts of things matter in terms of degrading the stigma of the word “murder” and excessively stigmatizing the person.
I expect that after they are released no one cares much about how many years you got they care about the crime you were convicted of.
August 4th, 2009 at 10:08 am
Get a life, Gumby, it was a joke and only a joke and GPT and I responded as such. If you think it represents fact then you need a dose of reality.
ADC, manslaughter is not just involuntary homocide. That is too narrow a way to look at it.
GNZ, good point. Murder is murder is murder. By removing provocation you are raising the level of sentence just by giving the killing a more serious description.
August 4th, 2009 at 3:13 pm
I believe most people believe the distinction between murder and manslaughter is one of motive / intent.
to prove murder, you must prove intent. It’s an intentional killing of someone.
To be labelled a murderer when you didn’t mean to kill someone, is wrong. Manslaughter is viewed as a much less serious crime (even though you may get the same sentence). people who drink and drive and run people over can get convicted of manslaughter. people who drive a boat and run over people also. It’s viewed by the large majority of people as largely an unfortunate accidental situation, and many people feel sorry for those convicted of manslaughter and view them as a victim of unfortunate circumstances which resulted in the even more unfortunate death of someone.
So as GNZ says, the crime you are convicted of is everything. Some people who are pressed so hard for so long that they snap, lash out and someone dies aren’t the same sort of people who plan to kill people. So IMO the defense of provocation is necessary and should remain.
August 4th, 2009 at 3:18 pm
ADC: agreed on the points you make. Especially the perception that manslaughter is less serious than murder. It can mean a lot. Also means a lot on parole!