lc290 Partial Defences to Murder report - Law Commission

PART 3
PROVOCATION
STRUCTURE OF THIS PART
3.1 The subject of the defence of provocation is central to this project. In this part we
set out our recommendations and the thought process which has led us to make
them. To assist readers to follow that thought process, we begin by outlining the
structure of this part.
3.2 In paras 3.13 – 3.14 we refer to the relevant parts of Consultation Paper No 173
without recapitulating their contents.
3.3 In paras 3.15 – 3.17 we refer to the provisional conclusions which we published
in April 2004.
3.4 In paras 3.18 – 3.19 we comment on the response of many consultees about the
need for a wider review of the law of murder.
3.5 In paras 3.20 – 3.31 we identify the major sources of consultees’ dissatisfaction
with the present law – the lack of a clear rationale and the unsatisfactoriness of
its key components (the concept of provocation, the supposed requirement of a
sudden and temporary loss of self-control and the supposed objective test). We
explore each of those factors in the paragraphs which follow, but not in the same
detail as in Consultation Paper No 173.
3.6 In paras 3.32 – 3.46 we address the question whether the defence should be
abolished or retained in some form.
3.7 In paras 3.47 – 3.59 we consider the case for reshaping the defence along the
lines of the EMED (Extreme Mental or Emotional Disturbance) defence under the
American Law Institute Model Penal Code.
3.8 In paras 3.60 and following we set out our approach to the reform of provocation.
We deal with:
• the rationale (paras 3.63 – 3.64)
• the trigger (paras 3.68 – 3.108)
• the objective test (paras 3.109 – 3.134)
• the exclusion of considered revenge (paras 3.135 – 3.137)
• the exclusion of self-induced provocation (paras 3.138 – 3.140)
• the role of judge and jury (paras 3.141 – 3.152)
• accident and mistake (paras 3.153 – 3.160)
• the exclusion of duress (paras 3.161 – 3.162)
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