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Critically evaluate the partial defence of Provocation.

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Assignment: Critically evaluate the partial defence of Provocation. (25) Partial defenses are only available in homicide cases. They apply in circumstances that, but for the defense, would constitute murder. They result in a lesser conviction, usually for manslaughter. Historically, the rationale for this was to avoid the mandatory sentence for murder (formerly capital punishment, and subsequently life imprisonment) in cases with mitigating circumstances. Provocation is a special defense to a charge of murder under S.3 of the Homicide Act 1957 which allows the jury to consider whether the defendant lost his self-control and killed because he was provoked by 'things done or by things said or by both together'. This covers a wide range of matters such as being teased about a facial scar, racial abuse, being battered by one's partner or even the crying of a baby. If the defence is successful, the charge is reduced to manslaughter. But in order for provocation to be accepted; the defence must establish that the defendant suffered a sudden and temporary loss of self-control and also that the things that provoked him would also have caused a reasonable man to be provoked and do as the defendant did. In DPP v Camplin (1978) the House of Lords ruled that the reasonable person was someone of the same age and sex as the defendant and sharing any characteristics which are relevant to the provocation. The defence of provocation can be analyzed as containing a two-part test. The first test is subjective, focusing on whether the defendant lost their self-control. The second test is objective, looking at whether a reasonable person would have reacted in the same way. The first test sets up the defence and the second test imposes a limit. A loss of self-control occurs when someone has lost their temper, and had a violent outburst. It was emphasized by the court of Appeal in R v Baille (1995) ...read more.


Later, after a fresh provocation, she went to the kitchen, took a sharpened carving knife and returned it to another room where she stabbed him. The original trial judge considered that, despite the time lapse, the issue of provocation should be left to the jury; nevertheless the jury convicted Sara Thornton of murder. At her appeal the Court of Appeal confirmed that the issue of whether there had been a sudden and temporary loss of self-control was one for the jury to decide. A striking example of the courts being lenient where there has been a time lapse is R v Pearson (1992) which I looked at earlier. It should be remembered though that the existence of a cooling-off period is not a matter of law, but a piece of evidence which the jury may use to decide whether at the time of the killing the defendant was deprived of self-control. This was emphasized in the case of Ahluwalia (1993). For the defence to succeed, it must be proved not only that a 'reasonable' person would have been provoked but that such provocation would have the same reaction as the defendant did- in other words, that the response was not out of all proportion to the provocation- this is the objective test. The House of Lords stated in R v Acott (1997) that where, on a charge of murder, there is evidence on the which the jury can find that the person charged was provoked to lose their self-control, the question whether the provocation was enough to make a reasonable person do as they did must be left to be determined by the jury. If there is only a speculative possibility of provocation the issue should not be left to the jury. Acott's mother was found dead after having consumed a substantial quantity of alcohol and having received multiple injuries. At the accused's trial for her murder, his defence was that his mother's injuries had been the result of an accidental fall and his unskilled attempts to resuscitate her. ...read more.


In General for Jersey v Holley 2005 After an argument, the defendant's girlfriend had told him she had just slept with another man. The defendant had been drinking heavily. When he picked up an axe that he had been using to chop wood, his girlfriend had said that he would dare not use it. He had then killed his girlfriend with the axe. There was expert evidence that the defendant was a chronic alcoholic, had a depressive personality and was dependent on alcohol and female partners. The trial judge in Jersey had told the jury that a person is drunk or under the influence of alcohol that at the time of the killing, and as a result he is provoked more easily than if he were sober, was not something that could be taken into account in his favour. The Court of Appeal held that this was misdirection because following Smith (Morgan) the trial judge should have drawn a distinction between being drunk, which gives rise to no arguable ground of provocation and suffering from the disease of alcoholism, which could be taken into account. The Privy Council makes the distinction between 'control characteristics' and 'response characteristics'. Control characteristics are those which merely have an effect on the defendant's ability to control themselves and these characteristics could not be taken into account for the objective test. Response characteristics are those which are the subject of provocation and could be taken into account. For example, if a boy is very sensitive because he has big ears, and is taunted about being a bad football player. If the boy kills, his big ears ought not to be a relevant characteristic because it merely makes him more susceptible to provocation- the taunt is just as provocative to a boy with ordinary ears. The Privy Council accepted a statement made by Professor Ashworth in 1976 that "The proper distinction.. is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused's level of self control should not." ?? ?? ?? ?? Tom Walker 13N ...read more.

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