If accepted it reduces the defendant’s liability to a charge of murder. Murder carries a mandatory life sentence; the sentence for manslaughter is at the judge's discretion.
What is the defence?
The accused claims that the victim made a homosexual advance that caused him to lose control and attack the victim. If there is any evidence that the accused was provoked (and the defendant’s own words are enough) the judge must let the jury decide whether the defendant was provoked and whether a ‘reasonable man’ would have been similarly provoked.
How it is used
In 1994 Al Francisco Delamotta was murdered in Ramsgate. Delamotta was a married man with three children; there is no evidence to suggest he was bisexual. He was stabbed in the chest and back by David Hunt, an unemployed labourer at Hunt’s home in Ramsgate. Hunt claimed that Delamotta, whom he had met while out drinking, made homosexual advances to him. There was no evidence other than Hunt’s word that this was the case; nevertheless Hunt’s plea of provocation was accepted and he was sentenced to five years for manslaughter.
How the law should be changed
The test of ‘loss of self control’ should be subject to greater scrutiny. In the Delamotta case Hunt claimed that he had been abused as a child and Delamotta’s conduct led to a flashback of his previous abuse; yet no evidence was produced to substantiate his claim.
There should be a ‘proportionality test’. Before the passing of the Homicide Act 1957 the House of Lords held that there must be a reasonable relationship between the provocation and the retaliation. Judges should be required to direct juries to consider the issue of proportionality. As Mr. Dalmotta’s widow said, “Even if it was true and my husband made an advance, why kill him?"
The Crown Prosecution Service should provide training for prosecutors dealing with gay murder cases. Prosecutors should be willing to challenge the homosexual panic defence.