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KembaraXtra-Provocation & Retaliation - Brown (1972)
Case Citation: Brown (1972) (Court of Appeal - England & Wales)
Key Issue: Relevance of the manner of retaliation in assessing the "reasonableness" element of the provocation defence.
Facts:
"... a jury should be instructed to consider the relationship of the accused's acts to the provocation when asking themselves the question "Was it enough to make a reasonable man do as he did?"
Significance:
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Case Citation: Brown (1972) (Court of Appeal - England & Wales)
Key Issue: Relevance of the manner of retaliation in assessing the "reasonableness" element of the provocation defence.
Facts:
- Defendant (D) accused his wife of adultery.
- A violent struggle ensued.
- D claimed to have blacked out immediately before fatally cutting his wife's throat with a razor.
- D was found guilty of murder.
- The manner of retaliation to the alleged provocation is a relevant factor in determining the objective reasonableness of the defendant's actions. This confirms that the mode of retaliation has to be a proportionate response to the provocation.
- When considering the objective "reasonable man" test in provocation, the jury must consider the relationship between the accused's actions and the level of provocation that they experienced.
"... a jury should be instructed to consider the relationship of the accused's acts to the provocation when asking themselves the question "Was it enough to make a reasonable man do as he did?"
Significance:
- Clarifies that the objective test for provocation involves assessing whether a reasonable person, subjected to the same provocation, would have reacted in a similar manner AND with a similar level of violence. The mode of retaliation has to be proportionate to the nature of provocation.
- Emphasizes the importance of proportionality in the response to provocation.
- The defence of provocation is less likely to succeed if the defendant's response is disproportionate to the provocation, regardless of whether the defendant subjectively lost control.
- The Brown (1972) precedent can be used to argue that even if some level of retaliation may have been reasonable to the provocation, the specific actions undertaken by the defendant were excessive and unreasonable in the given circumstances.
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