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Relating your answer to unlawful homicide, discuss the major weaknesses in the current law

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Introduction

I am going to evaluate the Partial Defences to Murder, particularly Provocation found in Section 3 of the Homicide Act 1957. This section of the HA '57 Act states that provocation can be '...by things done or said or both...' This is a very broad definition and is possibly too broad e.g. in R v Doughty the persistent crying of a baby. It can be argued that this definition is too broad, as it gives the courts too much discretion in allowing the partial defence. Society has the right to impose certain standards of behaviour on its citizens and such standards should be enforceable. Secondly this in effect places the V's behaviour on trial, this cannot happen in the English Legal System and obviously as they are dead they cannot defend themselves. Finally perfectly natural and reasonable behaviour can in effect be used to partly justify a killing E.g. R v Doughty. This determines the reliability of the law. In the case of R v Cocker it was decided that provocation means a loss of temper. ...read more.

Middle

R v Pearson could use it but on similar facts battered women such as Ahluwalia (R v Ahluwalia) have not. Many people have pointed out these women do not react immediately there tends to be a gap between the provocative conduct. This has traditionally been seen as a cooling off period, thereby preventing them using the defence. Helena Kennedy describes this as 'a snapping in slow motion, the final surrender of frayed elastic' or as Lord Gifford described it 'the slow burning emotion of a woman at the end of her tether...may be a loss of self-control in just the same way as a sudden rage'. The LC commented that this defence is seen to favour those men who react in violent anger, over fearful women. A suggested reform would be to remove the need for a sudden and temporary loss of control and simply return to a loss of control taking all relevant factors into consideration. An additional would be to create a new defence of 'Self Preservation' which would take into account the way women react. ...read more.

Conclusion

age of 9, who had lived in "squats" for several years and who had been sexually assaulted on a number of occasions by the V and the jury were instructed to consider the effects of similar provocation on a reasonable person with similar disadvantages. Two possible reforms would be, firstly to make the characteristics to include a question of law; this would have the advantage of consistency but would take an important question away from the jury thus diminishing their role. Secondly the test could be made purely objective, this would be straightforward for the jury, how would they react to that provocation. The major drawback would be that it would defeat the whole purpose of the defence as by definition reasonable people do not go around killing their fellows. A straightforward reform would be to abolish the mandatory life sentence, there would then be no need for the partial defence and the provocation would become a mitigating facto in sentencing. Furthermore, the LC stated that the law of provocation is 'profoundly unsatisfactory'. ?? ?? ?? ?? Damien Greenhalgh A2 Law - Page 1 - P.T.O. � ...read more.

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