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Criminal defence of provocation - Essay Example

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Criminal defence of provocation

A proposed bill however is pending in Parliament which seeks to remedy the ills of the law. Called the Coroner and Justice Bill, the proposed law is set to abolish provocation as a partial defence and introduce the ‘loss of control’ law in its lieu, using more stringent and specific language that will hopefully narrow down the application of the law and remove the hindrance to a more just application of the partial defence.
The doctrine of provocation is a common law doctrine, which has been altered by the statutory law. As embodied in the Homicide Act of 1957, the doctrine works to serve as a mitigating factor in the crime of murder. Section 3 of the said Act specifically delegates the task of determining its existence to the jury in murder cases. Thus:
There are, therefore, two things that a jury must do relative to the above provision: determine whether the defendant acted out of loss of self-control, and; whether a reasonable man would have similarly acted as the offender. The case of R v Camplin [1978] 2 All ER defined a reasonable man as “a person having the power of self-control, to be expected of an ordinary person of the same age and sex as the accused, but in other aspects sharing such of the accused’s characteristics as they think would affect the gravity of the provocation to him” (qtd Slapper & Kelly pp 108-109).
The doctrine of provocation acts as a partial defence, which if successful results in partial responsibility or in simple terms, reduces murder to manslaughter. The doctrine is not applicable to any other kind of offense (Ashworth & Mitchell pp 72-73). Provocation is raised by the defence and the judge himself directs the jury to consider the element. The judge has to determine first the acts done or words uttered that directly affected the defendant’s self-control and provoked him/ her to kill (Stone 68). In the case of R v Cocker [1989] Crim LR 740, for ...Show more

Summary

The present partial defence of provocation in the English law has its origin in the common law system but has been, since 1957, intruded into by the statute with the introduction of the Homicide Act. The doctrine of provocation has evolved into a broad law brought about by the…
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