‘Fit for Purpose in Today's Society?’: Reflecting on Provocation Pleas in Modern Scotland

Published date01 April 2023
DOIhttp://doi.org/10.1177/00220183231165813
AuthorRachel McPherson
Date01 April 2023
Fit for Purpose in Todays Society?:
Reecting on Provocation Pleas in
Modern Scotland
Rachel McPherson
University of Glasgow, UK
Abstract
Provocation has been the subject of long-term, international scrutiny and is currently under con-
sideration by the Scottish Law Commission as part of their review of homicide and defences to
murder. This article reects on how provocation is used in practice in Scottish courts and consid-
ers two aspects of potential reform in particular: where the basis of the plea is indelity and where
the plea is used in the context of someone killing an abuser. It is recognised that reform of the plea
now appears inevitable (and required) but this article cautions against complete abolition or expan-
sion of the plea. The discussion is informed by critical feminist analysis of both reported and unre-
ported cases and seeks to better illuminate how the plea is currently operating in practice.
Keywords
Domestic abuse, indelity, provocation, Scotland, women who kill
Introduction
Provocation has been the subject of longstanding feminist commentary and concern. Discussions about
how best to reform the plea have taken place internationally over a number of years and Scotland is cur-
rently in the process of considering its own legal reform. In 2021, the Scottish Law Commission pub-
lished its discussion paper on homicide. In this article, the partial defence of provocation is discussed
and in particular, whether the plea is t for purpose in todays society.
1
This article reects on the
plea as it enters into a stage of likely reform and presents information on pleas of provocation which
have been put before the Scottish courts in recent years. It presents information on cases in which provo-
cation on the basis of indelity have been considered by the courts; cases in which men have pled provo-
cation on the basis of violence; cases in which women have used it following abuse and other contexts in
which women have raised the plea on the basis of violence. The article then goes on to discuss potential
reform of the plea. When discussing potential reform of the plea, two particular contexts are focused on
Corresponding author:
Rachel McPherson, School of Law, University of Glasgow, Glasgow G12 8QQ, UK.
E-mail: Rachel.Mcpherson@glasgow.ac.uk
1. Scottish Law Commission, Discussion Paper on the Mental Element in Homicide (2021) section 10.19. The articleis much
broader than the title suggests and reviews defences to homicide.
Article
The Journal of Criminal Law
2023, Vol. 87(2) 97108
© The Author(s) 2023
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/00220183231165813
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