Ordinary self-control

Six days before Timoti v R was decided, applying the Rongonui interpretation of provocation, the Privy Council addressed the English law of provocation in Attorney-General for Jersey v Holley [2005] UKPC 23 (15 June 2005). Because of the need to sort out inconsistent decisions of the House of Lords and the Privy Council, the Board in Holley consisted of 9 members. It turned out that three of them, all with considerable criminal law experience, dissented. In the result, the majority took the same approach as had the New Zealand Court of Appeal (by a majority) in R v Rongonui [2000] 2 NZLR 385. Accordingly, the standard of self-control is fixed at that which the ordinary person has, and the level of provocation is to be assessed taking into account such matters as are relevant including, where appropriate, features peculiar to the defendant.

In Holley the Privy Council was dealing with law that was the same as that which applies in England. Plainly, the intention was to overrule (so to speak) the House of Lords majority decision in R v Smith (Morgan) [2001] 1 AC 146.

There is an air of unreality about distinguishing between the effect of provocative acts or words on the accused’s actual self-control, on the one hand, and the effect of those acts or words on the level of provocation he experienced, on the other. While the conceptual model applied in the Holley and Rongonui cases has a pleasing elegance, its use must be reviewed in the light of changes in the law concerning homicide. When the sentence for murder was mandatory life imprisonment, whereas life imprisonment was the maximum for manslaughter, there was some point in having the "partial defence" of provocation. Now, with the sentence for murder being a maximum of life imprisonment, provocation could be better placed as a matter relevant to sentencing. However, one should acknowledge that this is to ignore the symbolic significance of the terminology describing the offence. If provocation was limited to being a matter relevant to sentence for murder or manslaughter it could be understood in a more flexible sense than it is as a partial defence to murder.

Update: the partial defence of provocation has been repealed in New Zealand, from 8 December 2009.