Provocation
| Author | Alec Samuels |
| DOI | 10.1177/002201838304700407 |
| Published date | 01 November 1983 |
| Date | 01 November 1983 |
| Subject Matter | Article |
PROVOCATION
Alec Samuels*
In English criminal law provocation is not a defence.
If
provoked,
you are supposed to
treat
it with disdain or contempt, to keep your
temper, to go away. The civilised Englishman keeps a stiff upper lip.
If
he iswronged, he uses his legal or
other
non-retaliatory remedies.
If
provocation were a defence, then every person accused of an
offence of violence would plead provocation as a justification. In
sentence, provocation is a mitigating or extenuating or excusing
matter, reducing, but not eliminating, the degree of culpability.
In homicide the sentence is
fixed-life
imprisonment (formerly
capital
punishment)-so
as a realistic and pragmatic matter, as a
concession to human weakness, infirmity or frailty, the law recog-
nises provocation as an excuse, a palliative, and reduces it to
manslaughter, thus giving the judge complete discretion in sen-
tence, according to the facts of the case.
Provocation is a case of voluntary manslaughter,i.e. by reason of
intent to kill or cause grievous bodily harm the case would otherwise
be murder, but for the provocation.
The test
The test for provocation is a combination of the subjective and
the objective approach. You take a reasonable man of the age and
sex and characteristics of the accused and ask whether, in the
circumstances in which the accused found himself, a reasonable
man would have acted as he did.
To take two examples. The accused was 15 years of age. He was
mocked by a much older man exulting over ahomosexual triumph
over the accused. How would a reasonable person of 15, subjected
to such provocation, have reacted? Would he have lost his
self-control or not? (See R. v. Camplin [1978] A.C. 705, H.L.,
leading case and R. v. Newell (1980) 71 Cr.App.R. 331.)
•J.P., Barrister,
B.A.(Cantab.),
Reader
in Law in University of
Southampton.
276
Get this document and AI-powered insights with a free trial of vLex and Vincent AI
Get Started for FreeStart Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting
Start Your Free Trial of vLex and Vincent AI, Your Precision-Engineered Legal Assistant
-
Access comprehensive legal content with no limitations across vLex's unparalleled global legal database
-
Build stronger arguments with verified citations and CERT citator that tracks case history and precedential strength
-
Transform your legal research from hours to minutes with Vincent AI's intelligent search and analysis capabilities
-
Elevate your practice by focusing your expertise where it matters most while Vincent handles the heavy lifting