lc290 Partial Defences to Murder report - Law Commission

We can see strong arguments for a rule of law precluding selfinduced
provocation in the narrower sense from affording a partial
defence to murder, and we can see no good argument to the
contrary.
To exclude from a defence of provocation all forms of conduct which
might fall within the broader sense of self-induced provocation
would in our view go too far. While there is much to be said, for
example, in denying the defence to criminals whose unlawful
activities expose them to the risk of provocation by others, we see
considerable problems in trying to devise a rule of law which would
differentiate satisfactorily between forms of self-induced provocation
in the broader sense which should, and which should not, preclude
a defence of provocation. The circumstances are too potentially
variable for a clear and simple rule.
We are not putting any particular question to consultees on the topic
of self-induced provocation, but we would be interested in any
observations by consultees who disagree with our comments
on this subject.
3.140 We had no comments on those observations and we adhere to them. Where an
issue arises about self-induced provocation in the broader sense, it would be for
the jury to take a common-sense view whether the defendant’s conduct met the
requirements of the objective test.
Role of judge and jury
3.141 A judge should not be required to leave the defence of provocation to the
jury unless there is evidence on which a reasonable jury, properly directed,
could conclude that it might apply.
3.142 If provocation is to be defined by general principles rather than specific
categories, this proposal is important. The restoration of this power to the trial
judge (which was removed by section 3 of the Homicide Act 1957), coupled with
the supervision of the appellate courts, will enable the law to set boundaries in a
reasoned, sensitive and nuanced way, whereas an inflexible statutory formula
would have no room for development.
3.143 Consider, for example, the decision of the High Court of Australia in the leading
case of Stingel. 84 The defendant stalked a former girlfriend. She obtained a court
order preventing him from approaching her, but he ignored it. After a party he
found her (according to his account) in a car with another man having sex. He
was sworn at and told where to go. He fetched a knife from his car and killed the
man. The judge withdrew the defence of provocation from the jury and the High
84 (1990) 171 CLR 312.
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