Is the defence of provocation a good defence, and should it be extended? Discuss using case law.

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Is the defence of provocation a ‘good defence’, and should it be extended? Discuss using case law. 2500-3000


Provocation is only a defence to a charge of murder. The effect of this defence is to reduce manslaughter what, in the absence of provocation, would have been murder. According to Delvin  J provocation is defined as “some act, or series of acts, done the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self control , rendering  the accused so subject to passion as to make him or her for the moment not master of his mind” section 3 of the1957 Homicide Act expands on that,

Where on a charge of murder there is evidence on which a jury can find that the person charged was provoked (whether by things done or by things said or both together) to lose his self control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury  shall take into account everything both done and said according to effect to which , in their opinion, it would have on a reasonable man” 

Therefore it is the conduct of the victim that constitutes as provocation, because at common law words alone could not amount to provocation (Holmes v DPP). With two exceptions, actual violence by the deceased upon the accused was required. One was the exception were discovery by a husband of his wife in the act of committing adultery and discovery by a father of someone committing sodomy on his son. But with the act there are no restrictions. The provocation need not be illegal or wrongful and may even be something as natural as a baby crying (Doughty (1986)

There has been much controversy about provocation being a defence as it appears to enable defendants to receive lenient treatments because they allowed themselves to be provoked. Additionally defendants can vindicate from punishment a function of the state therefore defendants are not subjected to democratic control. Some state that provocation can encourage prejudices, Wells in Ashworth and Mitchell argued this when he states “[The provocation defence], is bound to encourage and exaggerate a view of human behaviour which is sexist, homophobic, and racist”. While others such as McAuley, asserts that partially provocation is a partial justification: “the true basis of the defence is the contribution of the victim, in the fact that his wrongful conduct was the cause of the defendant’s violent outburst”.

Many have argued that provocation should not be a defence and therefore should be abolished and while others believe that provocation should exist but requires reformation. In my essay I will critically analyse whether provocation can be considered as a good and bad defence and conclude whether it should be extended or abolished. (

The 1957 Homicide Act identifies two test requirements that need to satisfy the defence of provocation, the objective and subjective test. First, the subjective test question whether there was a reasonable possibility that the accused was provoked and suffered a sudden and temporary loss of self control. This indicates that provocation is a good defence as it distinguishes between killings,those promoted by revenge and unplanned outburst. This is highlighted in R v Duffy , when Delvin J states, “Circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has the time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is of the sense of the essence of provocation.”

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In Ibrahim v Gregory the courts held that the interval of time and the formulation of a plan negatived claims of loss of self control. This decision complies with the test provided by Delvin that the longer the period to cool down the more likely the killings is not a revenge killing. In this case Appellant had been terrorised by v other a period up to 7th October they contacted the police but nothing was done. They then agreed on a plan and killed v on the 14th October. But the Delvin’s test is an assumption not borne out by psychological/ physiological ...

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