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1
Mousourakis, George. "Defending Victims of Domestic Abuse who Kill : A Perspective from English Law." Les Cahiers de droit 48, no. 3 (April 12, 2005): 351–71. http://dx.doi.org/10.7202/043935ar.
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The term “cumulative provocation” is used to describe cases involving a prolonged period of maltreatment of a person at the hands of another, which culminates in the killing of the abuser by her victim. Since the early 1990s there has been a plethora of academic commentary on the criminal law’s response to such cases. More recently, the debate has been re-opened following the publication of the English Law Commission’s proposals on the partial defences to murder. This article examines doctrinal issues that arise in relation to claims of extenuation stemming from the circumstances of cumulative provocation. It is argued that, given the scope and limitations of the provocation defence, one should view the circumstances of cumulative provocation as likely to bring about the conditions of different legal excuses. Identifying the relevant legal defence would require one to reflect on the nature of the excusing condition or conditions stemming from the circumstances of each particular case. Although the paper draws largely upon the doctrines of provocation and diminished responsibility as they operate in English law, it is hoped that the analysis offered has relevance to all systems where similar defences are recognized (or proposed to be introduced), and can make a useful contribution to the continuing moral debate that the partial excuses to murder generate.
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Howe, Adrian. "‘Red mist’ homicide: sexual infidelity and the English law of murder (glossingTitus Andronicus)." Legal Studies 33, no. 3 (September 1, 2013): 407–30. http://dx.doi.org/10.1111/j.1748-121x.2012.00254.x.
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For over 300 years, criminal courts have regarded sexual infidelity as sufficiently grave provocation as to provide a warrant, indeed a ‘moral warrant’, for reducing murder to manslaughter. While the warrant has spilled over into diminished responsibility defences, wounding, grievous bodily harm and attempted murder cases, it is provocation cases that have provided the precedents enshrining a defendant's impassioned homicidal sexual infidelity tale as excusatory. Periodically, judges and law reformers attempt to reign in provocation defences, most recently in England and Wales where provocation has been replaced by a loss of control defence that, most controversially, specifically excludes sexual infidelity as a trigger for loss of control. This paper reflects on this reform and its reception, glossing Shakespeare's scathing critique of warrants for murder inTitus Andronicus.
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Howe. "‘Endlessly Valuable’ Discursive Work—Intimate Partner Femicide, an English Case Study." Laws 8, no. 4 (November 28, 2019): 33. http://dx.doi.org/10.3390/laws8040033.
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Against the trend of roll-backs of pro-feminist initiatives by right-wing governments, feminist-led reforms to the law of murder deserve accolades as hard-fought feminist victories. For three decades, feminist analysts have critiqued the operation of provocation defences in intimate partner femicide cases. Their work has been rewarded with the implementation of reforms in several anglophone jurisdictions that have abolished or curtailed that defence. This article focuses on the revolutionary impact of the reform implemented in England and Wales. It argues for the continuing purchase for feminist legal scholars of a methodology championed by Carol Smart in her seminal 1989 text, Feminism and the Power of Law. She counselled feminist law scholars to read law as a site for contesting law’s truth about gendered relationships. This methodology has not only been critical in exposing the misogyny and injustice embedded in traditional provocation by infidelity defences; it also enables researchers to chart shifts in law’s discursive constitution of truth in the post-reform era.
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Pichhadze, Amir. "Proposals for Reforming the Law of Self-Defence." Journal of Criminal Law 72, no. 5 (October 2008): 409–40. http://dx.doi.org/10.1350/jcla.2008.72.5.525.
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The English law of self-defence has attracted significant attention following the controversial decision of the Court of Appeal in R v Martin. At the heart of the controversy is the determination of the reasonableness of a defendant's apprehension of the necessity to use a particular amount of force in self-defence. When comparing the defendant's apprehension and actions to those of a reasonable person in the same circumstances, what characteristics of the defendant must be attributable to the reasonable person in order for the test to be appropriate? This article argues that while the Court of Appeal's reluctance to allow a psychologically individualised standard of reasonableness may have been correct, the court should have reformulated the purely objective standard into a contextual objective standard. It is suggested that unless such reform is undertaken, the English law of self-defence will remain unduly constrained. Reform proposals by the Law Commission have made it clear that such reform is not on the horizon. As an alternative, the Law Commission proposed a reformulated defence of provocation. While this alternative is commendable, it does not remove the need to reform the objective standard of reasonableness in the law of self-defence.
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Stannard, John E. "Towards a Normative Defence of Provocation in England and Ireland." Journal of Criminal Law 66, no. 6 (December 2002): 528–40. http://dx.doi.org/10.1177/002201830206600608.
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This article compares, in the light of the House of Lords' decision in R v Smith (Morgan James), the English and Irish approaches to the objective test in provocation. Though the law on this point has developed in radically different directions as between England and Ireland, both jurisdictions demonstrate a profound dissatisfaction with the objective test in its traditional formulation combined with a reluctance to dispense with it altogether. It is suggested that Lord Hoffmann's approach in Morgan Smith, by drawing out the essentially normative function of the objective test, provides a useful way forward for the law on both sides of the Irish Sea.
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Kesselring, K. J. "No Greater Provocation? Adultery and the Mitigation of Murder in English Law." Law and History Review 34, no. 1 (December 22, 2015): 199–225. http://dx.doi.org/10.1017/s0738248015000681.
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Reformers in much of the common law world have recently turned their attentions to laws pertaining to murder and manslaughter; however, perceptions of the past maintain a hold. In England and Wales, the Coroners and Justice Act (2009) abandoned notions of provocation that developed in the seventeenth century, instead stipulating that “loss of control” would serve as the means of mitigating charges of murder to a lesser offence. If a person has reasonable grounds for losing control, of a sort that accords with contemporary norms and values, that loss of control can be adduced as a partial defense on a homicide charge. Concerns about blaming victims and gender bias have helped shape the shift away from provocation defenses. Whether a married woman's sexual infidelity might in some way serve as a partial defense that moderates her husband's killing of her from murder to something less serious has proven especially controversial. (The reverse, a wife killing an adulterous husband, receives far less attention, but then women kill their partners for any reason far less often.) Drafters of the 2009 act expressly abandoned the older notion that sexual infidelity constituted sufficient provocation to mitigate charges in a husband's killing of his wife. Angry, jealous men killing their spouses in revenge or a passionate rage might no longer cite infidelity as sufficient provocation to kill. Some people, including lawmakers and judges, expressed concerns about the change. One MP (and later attorney general) complained that “thousands of years of human experience and history should be jettisoned for a piece of political correctness.” He need not have worried: recently, the decision in R. v. Clinton (2012) reintroduced the substance of the defense in a new guise, seeing a wife's adultery not as provocation, but as a trigger for a husband's understandable “loss of control.” Among other factors, the Court of Appeal alluded to “experience over many generations” in treating a man's suspicion of his wife's sexual infidelity as reasonable grounds for mitigation.
7
Horder, Jeremy, and Kate Fitz-Gibbon. "WHEN SEXUAL INFIDELITY TRIGGERS MURDER: EXAMINING THE IMPACT OF HOMICIDE LAW REFORM ON JUDICIAL ATTITUDES IN SENTENCING." Cambridge Law Journal 74, no. 2 (May 8, 2015): 307–28. http://dx.doi.org/10.1017/s0008197315000318.
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AbstractIn October 2010, the UK Parliament brought into effect law that replaced the partial defence to murder of provocation with a new partial defence of “loss of control”, applicable to England, Wales, and Northern Ireland. Although it retained some key features of its controversial predecessor, the new partial defence was in part designed better to address the gendered contexts within which a large number of homicides are committed. In examining the impact of the reforms, we will focus on long-held concerns about the treatment of sexual infidelity as a trigger for loss of control in murder cases. The article undertakes an analysis of English case law to evaluate the way in which sexual infidelity-related evidence has influenced perceptions of a homicide defendant's culpability, for the purposes of sentencing, both before and after the implementation of reform. The analysis reveals that, in sentencing offenders post reform, the higher courts have failed to follow the spirit of the reforms respecting the substantive law by effecting a corresponding change in sentencing practice.
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Lagunathan, Sharmilaa. "Battered woman syndrome and PTSD in women who kill their abusing partner: a study in medical jurisprudence." BJPsych Open 7, S1 (June 2021): S266. http://dx.doi.org/10.1192/bjo.2021.708.
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AimsThe aim of the study was to identify any symptoms or features of Battered Woman Syndrome (BWS) or Post-traumatic Stress Disorder (PTSD) that may be associated with, or explain, abused women killing their abuser; and the extent to which such identified symptoms or features have been deemed, or are potentially relevant, to past and now reformed partial defences to murder in English law. Hence two sub-studies were completed.MethodThe first sub-study identified mental symptoms of BWS or PTSD apparent in battered women who kill their abuser; achieved by identifying relevant research papers, through applying a ‘rapid review’ approach to three databases: PubMed, PsychInfo and PsychArticles. The second sub-study identified by legal research reported Court of Appeal (CA) judgments on women appealing their conviction of the murder of their abusive partner. It then analysed the legal approach taken towards evidence of the effects of abuse upon these women before and after relevant statutory law reform (although no CA cases were identified post-reform).ResultThe first sub-study identified and reviewed six symptoms or features, within three quantitative and three qualitative studies, that appeared to be associated with, or described by, abused women killing their abuser. These included helplessness, symptoms associated with PTSD, plus fear, isolation, experience of escalation of violence and cycle of violence. From the CA cases the perpetrators of killings that occurred prior to 04.10.2010 (the date of law reform) were usually successful in having their conviction overturned based upon diminished responsibility; but not provocation, because of the requirement of ‘sudden loss of self control’. ‘Loss of control’, which replaced provocation, appears highly likely to be capable of reducing murder to manslaughter based upon symptoms of BWS, or PTSD. However, the amended defence of diminished responsibility is likely to exclude evidence of BWS, but allow evidence of PTSD, because of its requirement of the defendant suffering from ‘a recognised medical condition’.ConclusionThis study demonstrated particular symptoms or features of BWS or PTSD associated with abused women killing their abusers plus their very different relevance to two partial defences to murder, pre and post law reform.
9
Holton, R., and S. Shute. "Self-Control in the Modern Provocation Defence." Oxford Journal of Legal Studies 27, no. 1 (October 28, 2005): 49–73. http://dx.doi.org/10.1093/ojls/gql034.
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Baker, Brenda M. "Provocation as a Defence for Abused Women Who Kill." Canadian Journal of Law & Jurisprudence 11, no. 1 (January 1998): 193–211. http://dx.doi.org/10.1017/s0841820900001740.
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After the decision by the Supreme Court of Canada in Lavallee, Canadian women who are victims of serious domestic abuse have been able to invoke an ‘enlarged’ conception of self-defence to exonerate some acts of killing abusers. While concern remains about Lavallee, this judgement broke important ground in insisting on a more sensitive account of the actual experience of abused women, and in giving recognition to the reasonable fears that such women have for their lives. However, other than self-defence, there is no criminal law defence or plea that has been effective as a (partial) excuse or justification for killings by abused women. In this paper, I will consider the potential for a plea of provocation to serve such a role. Provocation has acquired some standing in other jurisdictions as a defence for abused women who kill but it has not as yet been effectively used in Canada. I will look at the appropriateness of provocation as a plea in some abuser homicides. The paper will discuss some ways in which the plea of provocation could be enlarged in scope and in normative power; the paper will also examine some shortcomings of the current understanding of provocation to serve a defence for women who kill. Since homicides by women make up a small fraction of all homicides, even a reformed defence of provocation would be rarely used. But the more important question is whether a plea which has been available to men for several centuries should not also be (much more) available to women who kill, and whether closer attention to the situations and perspectives of women in abusive relationships yields good grounds for thinking some kill as excusable or reasonable responses to serious provocation. The underlying concern is an equality concern; that women have equal access to suitable defences for their putative breaches of the criminal law, and that standards of reasonableness operative in criminal case deliberation be as responsive to women’s experience and women’s values as they are to men’s.
11
Horder, J. "Reshaping the Subjective Element in the Provocation Defence." Oxford Journal of Legal Studies 25, no. 1 (March 1, 2005): 123–40. http://dx.doi.org/10.1093/ojls/gqi006.
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Da Silva, Michael. "Quantifying Desert Prior to the Rightful Condition: Towards a Theoretical Understanding of the Provocation Defence." Canadian Journal of Law & Jurisprudence 26, no. 1 (January 2013): 49–82. http://dx.doi.org/10.1017/s0841820900005956.
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The provocation defence, which militates against full legal responsibility for unjustified killings in several common law jurisdictions, has been the subject of considerable controversy during recent decades. Much of the criticism focused on substantive legal issues. This article examines the philosophical bases for the defence in hopes of establishing a theoretical groundwork for future debate on the legal defence. The defence originated on desert bases and continues to be understood on those grounds. This article thus examines it in light of two dominant desert-based theories of punishment originating with Aristotle and Immanuel Kant respectively.Ultimately, the best theory of punishment and the best theory of defence are provided by different approaches. The more plausible and robust Kantian theory of punishment can nonetheless be supplemented by the Aristotelean theory of defence as a continent sociological morality to create a more nuanced account of defence that better explains both excuses in general and the provocation defence in particular. From a substantive legal perspective, this position justifies continued use of the provocation defence in our imperfect legal order, but the partial excuse of provocation will not exist in the ideal legal order. An ideal political order will sufficiently control its citizens’ emotions such that the defence cannot be justified. A partial excuse of provocation is only necessary in the interim.
13
McAuley, Finbarr. "Anticipating The Past: The Defence Of Provocation In Irish Law." Modern Law Review 50, no. 2 (March 1987): 133–57. http://dx.doi.org/10.1111/j.1468-2230.1987.tb02569.x.
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Hall, J. M. "Recent Legal Issues in the Defence of Provocation." Medicine, Science and the Law 38, no. 3 (July 1998): 206–10. http://dx.doi.org/10.1177/002580249803800305.
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The Homicide Act 1957 has been in force for over 40 years. This article briefly reviews the state of the law regarding provocation prior to the Act, and subsequent attempts to modify the interpretation of the Act to date.
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McGeary, Rebecca, and Kate Fitz-Gibbon. "The homosexual advance defence in Australia: An examination of sentencing practices and provocation law reform." Australian & New Zealand Journal of Criminology 51, no. 4 (January 11, 2018): 576–92. http://dx.doi.org/10.1177/0004865817749261.
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In May 2015, the judgment of the High Court of Australia in Lindsay v The Queen reignited debate surrounding the use of the partial defence of provocation in cases involving a non-violent homosexual advance. Lindsay re-established the legal possibility that a man provoked enough to lose self-control and commit lethal violence in response to a non-violent homosexual advance could be convicted of manslaughter by reason of provocation rather than murder. The judgment arrived in the midst of two decades of national law reform activity, whereby all Australian jurisdictions have either introduced or proposed reform to abolish or restrict the application of the controversial partial defence of provocation. In doing so, cases involving a homosexual advance defence are increasingly shifting to the realm of sentencing. This article offers a timely analysis of the sentencing of homosexual advance defence cases in New South Wales and Queensland. In doing so, it examines the judicial treatment of a defendant’s claim of a ‘special sensitivity’ to a homosexual advance, problems arising from the private nature of an alleged homosexual advance and the treatment of intoxication in sentencing. It reveals that reform of legal categories alone may not be sufficient in ensuring a just legal response to homicides incited by alleged homosexual advances.
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Virgo, Graham. "Defining provocation." Cambridge Law Journal 58, no. 1 (March 1999): 1–48. http://dx.doi.org/10.1017/s0008197399231017.
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WHEN a defendant is charged with murder and wishes to rely on the defence of provocation, two conditions need to be satisfied. First, the provocation must have caused the defendant to lose his or her self-control suddenly and temporarily. This is the subjective condition. Secondly, the provocation must be such that the reasonable person might have reacted to it in the same way as the defendant. This is the objective condition. This condition is, however, qualified, since it is possible to imbue the reasonable person with relevant characteristics of the defendant, to see whether a reasonable person with such characteristics might have killed had he or she been provoked. Although this qualification of the objective test has been recognised for some time, it has become a matter of recent controversy as to when a particular characteristic of the defendant can be considered to be relevant and what the rationale of this qualification of the objective test actually is. Two distinct lines of authority can be identified. According to the first line, a characteristic can, generally, only be relevant if it affects the gravity of the provocation: Camplin [1978] A.C. 705 (H.L.). So, for example, if the provocation relates to the defendant's characteristic then it can be considered to be relevant, because the reasonable person would be more likely to have lost self-control if he or she had such a characteristic: Morhall [1996] A.C. 90 (H.L.), Luc Thiet Thuan [1997] A.C. 131 (P.C.). This line of authority does, however, recognise an exception to the general principle, namely that the reasonable person can be imbued with the defendant's age or gender, not because these characteristics affected the gravity of the provocation, but because they are characteristics which may affect the defendant's ability to exercise self-control: Camplin. But these are the only characteristics which can be taken into account for this reason. According to the second line of authority, however, any characteristic can be treated as relevant simply because it affects the defendant's ability to exercise self-control. This has been recognised in six recent decisions of the Court of Appeal, where the reasonable person was imbued with a wide variety of characteristics, such as battered woman syndrome (Thornton (No. 2) [1996] 1 W.L.R. 1174) and attention-seeking (Humphreys [1995] 4 All ER. 1008), simply because such characteristics affected the defendant's ability to exercise self-control.
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Pingree, Andrew. "Provocation as a Complete Defence to Trespass to the Person." Deakin Law Review 15, no. 2 (December 1, 2010): 205. http://dx.doi.org/10.21153/dlr2010vol15no2art124.
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The basis on which the law of trespass to the person denies mitigation of compensatory damages is a purely philosophical position which can be described as high minded but impractical. The law is criticised in this article on a number of bases including the fact that the leading case, Fontin v Katapodis, established this position without revealing the judicial reasoning which was applied. The notion of a victim’s fundamental right not to be touched or threatened is criticised and an argument of implied consent by the provocateur is put, as also is an argument that a person’s actions can be so much a function of external influences that their blame ought to be reduced proportionally. Some policy considerations are also raised to justify a change in the law.
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Kerrigan, Kevin. "Provocation: the fall (and rise) of objectivity." International Journal of Mental Health and Capacity Law 1, no. 14 (September 5, 2014): 44. http://dx.doi.org/10.19164/ijmhcl.v1i14.188.
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<p align="LEFT">This article reviews the recent turbulent history of the partial defence of provocation. It assesses the current state of the law, the continuing dissatisfaction among the judiciary and academic commentators, and goes on to consider the current proposals for reform from the Law Commission. In an attempt to retain the reader’s attention, it takes the form of a (wholly imagined) exchange between a professor and student.</p>
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Côté, Andrée. "Violence conjugale, excuses patriarcales et défense de provocation." Criminologie 29, no. 2 (August 16, 2005): 89–113. http://dx.doi.org/10.7202/017391ar.
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Canadian law provides many excuses for men who commit crimes of violence against women; this article analyses the defence of provocation, in light of the Common Law's historical bias in favour of male domination and of the current judicial treatment of conjugal femicide. The statutory defence of provocation partially excuses murder committed in a fit of anger, if the accused lost his self-control and if the legal authority is of the opinion that an "ordinary man", in the same circumstances, would also have been provoked by the victim to the point of losing his self-control and killing his spouse. Past and present case-law indicates that a threat to a man's right to sexually appropriate a woman is the paradigmatic foundation of this defence in cases of conjugal femicide. The plausibility of the "crime of passion" scenario is supported by popular culture and and by interpretative techniques that decontextualize the crime and render it susceptible to mythologization. The idea that men who commit crimes of violence against women "lose control" of themselves is a myth that has been debunked by social science research, but that lives on in the imagination of the legal profession. But why should we excuse crimes committed by men in anger, on a morbid desire to control "their" woman, but refuse to acknowledge the person who killed out of fear, or compassion ?
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Reid, Kiron. "The Media and Uninformed Law Reform: The Case of the Provocation Defence." Journal of Criminal Law 75, no. 3 (June 2011): 185–93. http://dx.doi.org/10.1350/jcla.2011.75.3.704.
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Tadros, Victor. "The Structure of Defences in Scots Criminal Law." Edinburgh Law Review 7, no. 1 (January 2003): 60–79. http://dx.doi.org/10.3366/elr.2003.7.1.60.
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One central pillar of scholarship about criminal defences concerns their structure. Three categories of defence are commonly recognised in the academic literature, and to a degree by the courts: capacity defences, justifications, and excuses. This article considers how defences should be structured and the impact that such a structure has on the content of legally recognised defences such as diminished responsibility, necessity, coercion, and provocation.
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Nathan, Rajan, and Simon Medland. "Psychiatric expert evidence and the new partial defences of diminished responsibility and loss of control." BJPsych Advances 22, no. 4 (July 2016): 277–84. http://dx.doi.org/10.1192/apt.bp.114.014431.
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SummaryPsychiatric expert witnesses instructed to undertake assessments of defendants charged with murder should be familiar with the partial defences of diminished responsibility and loss of control. The Coroners and Justice Act 2009 enacted major amendments to the partial defence of diminished responsibility and introduced a new defence of loss of control to replace the provocation partial defence. In this article, the changes to the law are described with particular focus on the implications for the psychiatric assessment.
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Slater, James. "CAPACITY, MORAL RESPONSIBILITY AND THE CRIMINAL LAW." Denning Law Journal 19, no. 1 (November 27, 2012): 33–68. http://dx.doi.org/10.5750/dlj.v19i1.377.
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This article is concerned with the conflict between two theories of moral responsibility for wrongdoing, one of which I shall term the shallow capacity theory and the other the self-control theory. This conflict is of interest for two reasons. First, and fundamentally, it is important from the perspective of moral philosophy: in this regard, I will argue that the shallow capacity theory is incomplete, and as a result inferior to the self-control theory, which offers a complete account of moral responsibility for wrongdoing. Secondly, given the criminal law’s interest in moral responsibility and blame, I will argue that the self-control theory offers two important insights for the criminal law, insights that the shallow capacity theory does not provide. First, it offers the most accurate understanding of the moral significance of killing under provocation, and thus the best framework for understanding the partial defence of provocation. Secondly, it demonstrates that there is a need in the criminal law for a defence based on radical impairment of an agent’s capacity for self-control, and in so doing offers a vital insight into the notion of a partial denial of moral responsibility. It should be noted that these insights for the criminal law emerge from those features of the self-control theory that make it superior to the shallow capacity theory as a theory of moral responsibility.
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Edwards, Susan. "Descent into Murder: Provocation's Stricture—The Prognosis for Women Who Kill Men Who Abuse Them." Journal of Criminal Law 71, no. 4 (August 2007): 342–61. http://dx.doi.org/10.1350/jcla.2007.71.4.342.
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This article considers the ruling in Attorney-General for Jersey v Holley1 and its impact on limiting the ambit of the defence of provocation by restoring to the reasonable person a normative capacity for self-control. In particular, the implications of this limitation on legal outcome in cases where women kill men who abuse them are explored. The inevitable demise of provocation as a defence, which follows from the ruling in Holley, is of particular concern as is the new framework for sentencing in convictions for murder2 which in removing judicial discretion from the sentencing decision prohibits judges from tempering the harshness of the mandatory sentence. This new murder/sentencing regime will undoubtedly result in injustice, especially in those cases where battered women kill, which, although deserving of mitigation, nevertheless fail to satisfy the strictures of provocation's requirements post Holley, thereby resulting in an increase in convictions for murder. The Law Commission's report on Murder, Manslaughter and Infanticide3 recommends a new framework for murder and manslaughter, including a new definition of provocation and also a new direction in the murder sentencing framework. This area of the law is still far from fixed.
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Raj, Senthorun. "Review: Homicide Law Reform, Gender and the Provocation Defence by Kate Fitz-Gibbon." Current Issues in Criminal Justice 27, no. 1 (July 2015): 133–35. http://dx.doi.org/10.1080/10345329.2015.12036036.
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Elvin, Jesse. "The Doctrine of Precedent and the Provocation Defence: A Comment on R v James." Modern Law Review 69, no. 5 (September 2006): 819–31. http://dx.doi.org/10.1111/j.1468-2230.2006.00611.x.
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Elliott, Catherine. "What Future for Voluntary Manslaughter?" Journal of Criminal Law 68, no. 3 (June 2004): 253–63. http://dx.doi.org/10.1350/jcla.68.3.253.34453.
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This article examines the Law Commission's Consultation Paper, Partial Defences to Murder, which was published in June 2003. There are fundamental problems with the defence of provocation. The author suggests that this partial defence should therefore be abolished and replaced by a new partial defence of self-preservation. This could provide a defence where the offender, or another person with whom he or she is closely associated, has been repeatedly subjected to serious violence or tormenting behaviour. This conduct must have caused the offender to be in a state of severe emotional disturbance at the time of the killing.
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Elliott, Catherine. "What Future for Voluntary Manslaughter?" Police Journal: Theory, Practice and Principles 68, no. 3 (July 1995): 253–63. http://dx.doi.org/10.1177/0032258x9506800311.
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This article examines the Law Commission's Consultation Paper, Partial Defences to Murder, which was published in June 2003. There are fundamental problems with the defence of provocation. The author suggests that this partial defence should therefore be abolished and replaced by a new partial defence of self-preservation. This could provide a defence where the offender, or another person with whom he or she is closely associated, has been repeatedly subjected to serious violence or tormenting behaviour. This conduct must have caused the offender to be in a state of severe emotional disturbance at the time of the killing.
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Hoctor, Shannon. "Non-pathological criminal incapacity relating to provocation or emotional stress – an overview of developments in South African law." South African Journal of Psychology 49, no. 2 (April 4, 2019): 177–87. http://dx.doi.org/10.1177/0081246319841224.
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The development of the defence of non-pathological incapacity reflects a movement towards recognizing that an accused person should not be punished unless he or she is indeed blameworthy. This is furthermore consistent with the rights to dignity, and freedom and security of the person, set out in the Bill of Rights. However, policy concerns about the availability of a defence based on provocation or emotional stress have been raised. The development of the defence in this context and its apparent, but as yet uncertain, demise in the wake of the judgement of the Supreme Court of Appeal in S v Eadie is examined in this article, which provides an overview of the issues animating this area of law.
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Edwards, Susan S. M. "Anger and Fear as Justifiable Preludes for Loss of Self-Control." Journal of Criminal Law 74, no. 3 (June 2010): 223–41. http://dx.doi.org/10.1350/jcla.2010.74.3.638.
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Following the Coroners and Justice Act 2009, s. 56, the common law defence of provocation, which depended on a sudden and temporary loss of self-control (following R v Duffy1), is now abolished, as is s. 3 of the Homicide Act 1957. In its place is substituted a statutory defence of loss of self-control, which relies on some of the principles that constituted the grounds for provocation, its predecessor. For the first time fear qualifies as a new ground for loss of self-control (2009 Act, s. 55(3)). This article examines the new partial defence of ‘loss of self-control’ and considers what distinguishes the new defence from its predecessor and the features which are retained. It also evaluates whether the overarching objectives of restricting the ambit of the earlier defence and providing a new defence for battered women, shared by both the Law Commission and the government, are well considered and likely to be achievable. The new partial defence will be considerably restricted both by the new criteria and by returning the power to the judge, as ‘gatekeeper’, to prohibit an un***meritorious defence from going to the jury (2009 Act, s. 54(6)). The inclusion of fear as a new ground for loss of self-control will continue to present difficulties as long as the definition of ‘extremely grave’, a requisite of the qualifying trigger to this loss of self-control, is a jury question, and also insofar as ‘justifiable sense of being seriously wronged’ is to be judged on objective grounds. Further difficulties are presented by the requirement that the capacity for self-control, now expressed as the ‘tolerance’ and ‘restraint’, required of the defendant, is to be decided on objective grounds.
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Manganas, Antoine. "Quelques réflexions à propos du document de la C.R.D. traitant de l'homicide." Les Cahiers de droit 26, no. 3 (April 12, 2005): 787–98. http://dx.doi.org/10.7202/042688ar.
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The present study is a critical approach to the Canada Law Reform Commission document concerning homicide. This study deals with two particular aspects of the law of homicide. In the first chapter we suggest the creation of a special category of homicide, the « homicide passionnel », for the following reasons : first of all the substantive defences, like intoxication, self-defence, diminished responsibility and provocation are too narrow. Especially with provocation, the application of the objective test is detrimental to the more vulnerable population which lacks educational and financial resources. Secondly, we cannot compare the robber who kills by using his weapon with the person who kills in a state of excitement, jealousy or anger. Besides, many foreign laws have recognized this category of « hot-blood » homicide. So, we think that is time for Canada to abolish the defence of provocation (s. 215 Cr. C.) and create this specific offence. In the second chapter, we suggest criminalization of homicide by negligence. Actually, we can see the difficulty judges have in convicting someone for criminal negligence when the death of a person is due to trafic « accident ». Many foreign criminal codes have created this offence. We find it fair to impose the duty of the reasonable person on those who take certain risks by using motor vehicles or other machines for their benefit or spare time.
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McDonald, Elisabeth. "No Straight Answer: Homophobia as Both an Aggravating and Mitigating Factor in New Zealand Homicide Cases." Victoria University of Wellington Law Review 37, no. 2 (July 1, 2006): 223. http://dx.doi.org/10.26686/vuwlr.v37i2.5569.
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This article discusses recent New Zealand homicide cases in which male defendants have sought to rely on the partial defence of provocation to excuse the killing of a man who allegedly made them the subject of unwanted sexual advances. The author argues that at least in cases in which such claims are unsuccessful, reference should be made to section 9(1)(h) of the Sentencing Act 2002, which renders homophobia an aggravating feature in sentencing. To the extent that section 9(1)(h) is not relied on, while provocation is successfully pleaded in some cases, the author concludes that gay male citizens are not afforded equal protection under the criminal law.
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Broadbent, Graeme. "Provocation—Does Paria Add Anything Useful?" Journal of Criminal Law 68, no. 3 (June 2004): 244–52. http://dx.doi.org/10.1350/jcla.68.3.244.34456.
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There has been much controversy in recent years relating to aspects of the partial defence of provocation. A particular issue has centred on whether, and in what circumstances, the defendant's characteristics can be taken into account with regard to his ability to exercise self-control. In the recent case of Paria v The State, an appeal originating from Trinidad and Tobago, the Privy Council was invited to apply the decision of the House of Lords in R v Smith (Morgan). In the event, the Privy Council declined to do so, but nonetheless made some observations on that case. This article considers the more fundamental question of whether the Privy Council should have been considering Smith at all, and argues that, for precedent-based reasons, it should not. It draws on criticisms made by other commentators to the effect that observations made by the Privy Council in Paria about Smith are not soundly based, and concludes that the case adds little of value to the law in either England and Wales or Trinidad and Tobago.
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Broadbent, Graeme. "Provocation—does Paria Add Anything Useful?" Police Journal: Theory, Practice and Principles 68, no. 3 (July 1995): 244–52. http://dx.doi.org/10.1177/0032258x9506800310.
Full textAbstract:
There has been much controversy in recent years relating to aspects of the partial defence of provocation. A particular issue has centred on whether, and in what circumstances, the defendant's characteristics can be taken into account with regard to his ability to exercise self-control. In the recent case of Paria v The State, an appeal originating from Trinidad and Tobago, the Privy Council was invited to apply the decision of the House of Lords in R v Smith (Morgan). In the event, the Privy Council declined to do so, but nonetheless made some observations on that case. This article considers the more fundamental question of whether the Privy Council should have been considering Smith at all, and argues that, for precedent-based reasons, it should not. It draws on criticisms made by other commentators to the effect that observations made by the Privy Council in Paria about Smith are not soundly based, and concludes that the case adds little of value to the law in either England and Wales or Trinidad and Tobago.
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Tamblyn, Nathan. "Private Necessity in English and American Tort Law." Global Journal of Comparative Law 1, no. 1 (2012): 38–72. http://dx.doi.org/10.1163/2211906x-00101002.
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This article seeks to provide a comprehensive formulation of the tortious defence of necessity in English law, and to identify the lessons which can be learned by comparing it with the American privilege of private necessity set out in the Restatement (Second) of Torts.
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Fitz-Gibbon, Kate. "Replacing Provocation in England and Wales: Examining the Partial Defence of Loss of Control." Journal of Law and Society 40, no. 2 (May 13, 2013): 280–305. http://dx.doi.org/10.1111/j.1467-6478.2013.00623.x.
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Thornton, James. "Is publicly funded criminal defence sustainable? Legal aid cuts, morale, retention and recruitment in the English criminal law professions." Legal Studies 40, no. 2 (January 13, 2020): 230–51. http://dx.doi.org/10.1017/lst.2019.31.
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AbstractThis paper examines how continued reductions in fee levels for criminal legal aid work affect recruitment and retention in the English publicly funded criminal defence profession. Data from 29 qualitative interviews with English defence solicitors and barristers are analysed to explore the impact of these reductions on recruitment of new lawyers and retention of current lawyers. On the basis of these findings, also building on research conducted by lawyer professional associations, I argue that a combination of cuts to legal aid, the resulting working patterns and low morale has led to a position where the criminal defence profession, as we know it, is unsustainable.
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Arenson, Kenneth J. "The Paradox of Disallowing Duress as a Defence to Murder." Journal of Criminal Law 78, no. 1 (February 2014): 65–79. http://dx.doi.org/10.1350/jcla.2014.78.1.892.
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The common law has long recognised that what would otherwise constitute murder should be reduced to the lesser offence of voluntary manslaughter in instances where the accused was induced to kill because of provocative conduct on the part of the deceased that does not amount to lawful excuse or justification such as self-defence or defence of others. In what is often termed as a reasonable concession to human frailty, the law has opted to treat those who kill under such circumstances as less morally blameworthy than those who kill in the absence of such provocation or other mitigating circumstances such as a genuinely held, albeit objectively unreasonable belief, that the use of deadly force was necessary in self-defence or the defence of another person. In sharp contrast, the common law has steadfastly declined to allow the defence of duress to be interposed in like manner as a partial defence to the crime of murder. The discussion to follow will examine whether this disparate treatment is justifiable in light of the stated underpinnings of these defences. The discussion will conclude by exploring various proposals for reform and the extent to which they are likely to result in sanctions that are commensurate with the relative degrees of moral culpability of those who seek to interpose these defences as complete or partial defences to the crime of murder.
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O'Sullivan, Janet. "In Defence of Foakes v. Beer." Cambridge Law Journal 55, no. 2 (July 1996): 219–28. http://dx.doi.org/10.1017/s0008197300098135.
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This paper aims to defend what many academic commentators regard as indefensible—the rule in Foakes v. Beer.For almost four hundred years (since Pinnel's Case) English law has been clear: the payment of, or promise to pay, a smaller sum than the amount due does not discharge the debt, since the debtor provides no considerationfor the creditor's promise to waive the balance—there is no “accord and satisfaction”. The House of Lords approved this rule, albeit reluctantly on the part of Lord Blackburn, in Foakes v. Beer.
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Bosland, Jason, Andrew T. Kenyon, and Sophie Walker. "PROTECTING INFERENCES OF FACT IN DEFAMATION LAW: FAIR COMMENT AND HONEST OPINION." Cambridge Law Journal 74, no. 2 (June 1, 2015): 234–60. http://dx.doi.org/10.1017/s0008197315000343.
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AbstractDistinguishing “comment” from allegations of “fact” within the defamation defence of fair comment has long been notoriously difficult. While the defence has recently been replaced by a statutory “honest opinion” defence, the distinction remains highly relevant. There is a real need for judicial determination of the treatment of factual inferences within the defence. In recent years, some judgments have equated “comment” with unverifiable opinions, which would exclude verifiable factual inferences from the defence. This is inconsistent with the defence's aims to protect public reasoning and contrary to its history. We explain how a better approach is possible for English courts.
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Memon, Rafiq. "Legal theory and case law defining the insanity defence in English and Welsh law." Journal of Forensic Psychiatry & Psychology 17, no. 2 (June 2006): 230–52. http://dx.doi.org/10.1080/14789940600554609.
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Wake, Nicola. "‘His home is his castle. And mine is a cage’: a new partial defence for primary victims who kill." Northern Ireland Legal Quarterly 66, no. 2 (August 17, 2018): 151–77. http://dx.doi.org/10.53386/nilq.v66i2.148.
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This article provides an in-depth analysis of the Crimes Amendment (Abolition of Defensive Homicide) Act 2014 which had the effect of repealing the Australian state of Victoria’s only general ‘partial defence’ of defensive homicide, and replaced the existing statutory self-defence in murder/manslaughter provisions and general common law self-defence rules with a single test. The abolition of defensive homicide means there is now no general ‘partial defence’ to accommodate cases falling short of self-defence. The change is likely to mean that some primary victims will find themselves bereft of a defence. This is the experience in New Zealand where the Family Violence Death Review Committee recently recommended the reintroduction of a partial defence, postabolition of provocation in 2009. Primary victims in New Zealand are being convicted of murder and sentences are double those issued pre-2009. Both jurisdictions require that a new partial defence be introduced, and accordingly, an entirely new defence predicated on a fear of serious violence and several threshold filter mechanisms designed to accommodate the circumstances of primary victims is advanced herein. The proposed framework draws upon earlier recommendations of the Law Commission for England and Wales, and a comprehensive review of the operation of ss 54 and 55 of the Coroners and Justice Act 2009, but the novel framework rejects the paradoxical loss of self-control requirement and sexed normative standard operating within that jurisdiction. The recommendations are complemented by social framework evidence and mandatory jury directions, modelled on the law in Victoria. A novel interlocutory appeal procedure designed to prevent unnecessary appellate court litigation is also outlined. This bespoke model provides an appropriate via media and optimal solution to the problems faced by primary victims in Victoria and New Zealand.
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Phillips, Anne. "When Culture Means Gender: Issues of Cultural Defence in the English Courts." Modern Law Review 66, no. 4 (July 2003): 510–31. http://dx.doi.org/10.1111/1468-2230.6604002.
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Descheemaeker, Eric. "Winner of the SLS Annual Conference Best Paper Prize 2010: ‘Veritas non est defamatio’? Truth as a defence in the law of defamation." Legal Studies 31, no. 1 (March 2011): 1–20. http://dx.doi.org/10.1111/j.1748-121x.2010.00191.x.
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Despite the limited exception introduced by statute in 1974, the principle that truth is and ought to be a complete defence to all actions in defamation is typically regarded as self-evident in modern English law. The fact that England stands here against not only the whole of the civilian tradition but also a number of common-law jurisdictions suggests, however, that it is not. This paper, after surveying the history of the principle in English law and the debates that it has spurred in the past, argues that English law is right on this question, but needs to understand more cogently why. This, in turn, requires an examination of the interests protected by the cause of action. It is only if we accept that it is, and is solely, reputation founded in character that the defence of veritas will be secured.
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Briggs, Adrian. "In Praise and Defence of Renvoi." International and Comparative Law Quarterly 47, no. 4 (October 1998): 877–84. http://dx.doi.org/10.1017/s0020589300062576.
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It is sometimes asked whether English private international law has a theory, or, if it has a theory, what this actually means. This may be a question for some, but it may have no answer. The purpose of this article is to take issue with the claim, sometimes made, that since Spiliada1 the subject has become less theoretical. To be sure, the deplorable quality of recent law reform lends powerful support to the proposition that concern for the theory of the subject (indeed, any form of reflective intelligence) has been notably lacking. But Spiliada may have been one of those defining moments in which the large theory of the English conflict of laws underwent a dramatic change and shone a light into areas of the subject which had been peacefully gathering dust.
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Shaw, Elizabeth. "Automatism and Mental Disorder in Scots Criminal Law." Edinburgh Law Review 19, no. 2 (May 2015): 210–33. http://dx.doi.org/10.3366/elr.2015.0272.
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In this article, Elizabeth Shaw examines the rule of Scots law that mental abnormality can sometimes entirely eliminate a person's criminal responsibility for her actions. Two separate defences are considered: (1) mental disorder excluding responsibility and (2) automatism. The former is a new statutory defence, replacing the old defence of insanity, which was created following a report by the Scottish Law Commission. That report ignored automatism, an omission argued by the author to be unfortunate since automatism and the mental disorder defence are very closely related. By looking at the mental disorder defence in isolation, the Commission missed an opportunity to make sure that the criminal law takes a philosophically coherent and practically workable approach to people with mental abnormalities. The author's analysis of the Scots law is undertaken in comparison with legal developments in the same field in English law.
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Waddington, P. A. J. "Pilkington, H. (2016). Loud and Proud: Passionand Politics in the English Defence League." Policing: A Journal of Policy and Practice 14, no. 2 (June 21, 2018): 564–65. http://dx.doi.org/10.1093/police/pay014.
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Highet, Keith. "Evidence, the Court, and the Nicaragua Case." American Journal of International Law 81, no. 1 (January 1987): 1–56. http://dx.doi.org/10.2307/2202130.
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The decision in the Nicaragua case is one of the most important judgments ever delivered by the International Court. It is by far the “heaviest” case, in the parlance of the English barrister, ever decided by the Court in the absence of a party. It has broken new ground for the application of Article 53 of the Statute. It deals in detail with the multilateral treaty reservation of the United States (the “Vandenberg amendment”). It contains provocative reasoning about the genesis and maintenance of rules of customary international law, separate from treaties such as the United Nations Charter. It contains seminal findings on the use of force and the exercise of the inherent right of self-defense under Article 51 of the Charter. It presents fresh and doubtless controversial interpretations of the principle of nonintervention. It prescribes limits to “collective counter-measures” in response to conduct not deemed to amount to “armed attacks.”
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Kugler, Itzhak. "Necessity as a Justification in Re A (Children)." Journal of Criminal Law 68, no. 5 (October 2004): 440–50. http://dx.doi.org/10.1350/jcla.68.5.440.43222.
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In criminal law theory, it is common to distinguish between the defence of necessity as a justification and the defence of necessity as an excuse. However, it is sometimes said that English law does not clearly distinguish between justification and excuse. In Re A (Children) the Court of Appeal permitted the separation of conjoined twins although the separation would lead to the immediate death of one of the twins. In his judgment, Brooke LJ invoked the defence of necessity and appears to be ready to base his decision on necessity as an excuse. It is, however, submitted in this article that Brooke LJ's decision should be interpreted as having been based on necessity as a justification. Consequently, it cannot be said any longer that English law does not distinguish between justification and excuse.
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Sanger, Andrew. "REVIEW OF EXECUTIVE ACTION ABROAD: THE UK SUPREME COURT IN THE INTERNATIONAL LEGAL ORDER." International and Comparative Law Quarterly 68, no. 1 (January 2019): 35–66. http://dx.doi.org/10.1017/s0020589318000374.
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AbstractIn January 2017, the UK Supreme Court handed down landmark judgments in three cases arising out of the UK government's conduct abroad. In Serdar Mohammed v Ministry of Defence, the Court considered whether detention in non-international armed conflicts was compatible with the right of liberty in Article 5 of the European Convention on Human Rights. The second case, Belhaj v Straw, involved an examination of the nature and scope of the foreign act of State doctrine, and its applicability as a defence to tort claims arising out of the alleged complicity of the UK Government in human rights abuses abroad. Finally, Rahmatullah v Ministry of Defence saw the Court examining the nature and scope of the Crown act of State doctrine, and its use as a defence to tort claims alleging unlawful detention and maltreatment. All three cases raise important doctrinal issues and have significant consequences for government accountability and access to a judicial remedy. At the heart of each decision is the relationship between international law and English law, including the ways in which international norms influence the development of English law and public policy, and how different interpretations of domestic law affect how judges resolve questions of international law. These cases also see the judges grapple with the role of the English court in the UK constitutional and international legal orders.