The Media and Uninformed Law Reform: The Case of the Provocation Defence
| Author | Kiron Reid |
| DOI | 10.1350/jcla.2011.75.3.704 |
| Published date | 01 June 2011 |
| Date | 01 June 2011 |
| Subject Matter | Comment |
COMMENT
The Media and Uninformed Law Reform:
The Case of the Provocation Defence
Kiron Reid*
Keywords Provocation; Loss of control; Media; Law reform
This comment illustrates the premise that the media largely hinders
debate about law reform, by lack of serious reporting of law matters,
and fails to inform the public about important legal policy issues. The
example used is the change to the partial defence of provocation con-
tained in the Coroners and Justice Act 2009. This is an exposé of an
important legal topic that has been ignored by the British media rather
than a theoretical or legally grounded analysis. A sample of the media
coverage is summarised.
In the Coroners and Justice Bill, Parliament enacted the biggest
changes to the defence of provocation in England and Wales in over 50
years. Provocation has been replaced by a modernised ‘loss of control’
partial defence. The Bill received Royal Assent on 12 November 2009.
The sections relating to provocation came into force on 4 October 2010.1
I believe that the reforms are a significant improvement on the previous
mixture of common law and statute law, but that the defence should be
abolished altogether. There should be no defence of provocation to
murder at all; however, the judge should be given discretion to sentence
as appropriate to blameworthiness. The Director of Public Prosecutions,
Keir Starmer, is yet another eminent lawyer to give recent support to the
need for greater discretion regarding murder cases (though not abolition
of provocation).2
* Lecturer in Law, School of Law, University of Liverpool; e-mail:
K.J.C.Reid@liverpool.ac.uk. The author wishes to thank Mark May, Murder Review
Team, Criminal Law Policy Unit, Ministry of Justice for background information on
the Coroners and Justice Bill. Thank you to Frances Willmott and Matthew Gibson
for comments on a draft, and to Matthew Gibson and Sally Goodhall for discussing
the law with me. Opinions expressed and any errors are those of the author.
1 The partial defence is defined in ss 54–55 of the Coroners and Justice Act 2009. For
those unfamiliar with the reforms, articles include: S. Edwards, ‘Anger and Fear as
Justifiable Preludes for Loss of Self-control’ (2010) 74 JCL 223; A. Norrie, ‘The
Coroners and Justice Act 2009—Partial Defences to Murder: (1) Loss of Control’
[2010] Crim LR 275; A. Clough, ‘Loss of Self-control as a Defence: The Key to
Replacing Provocation’ (2010) 74 JCL 118; A. Carline, ‘Reforming Provocation:
Perspectives from the Law Commission and the Government’ [2009] 2 Web JCLI.
The changes were summarised by L. McGowan, Criminal Law Legislation Update
(2011) 75 JCL 4 at 5–6, also by C. Withey, ‘Loss of Control’ (2010) 174 Criminal
Law and Justice Weekly 197–9 (3 April 2010).
2 ‘Murder sentence changes supported by top prosecutor’, BBC News online, 8
September 2010, available at http://www.bbc.co.uk/news/uk-11224583, accessed 23
March 2011. For another example of call for reform, see Lord Carswell’s conclusion
in his dissenting judgment in Attorney-General for Jersey v Holley (Jersey) [2005] UKPC
23 at [77]: ‘I should not like to leave this case without registering my strong
agreement with both the majority and minority that the law of homicide needs
comprehensive and fundamental reform. It is a patchwork of rules which makes
185The Journal of Criminal Law (2011) 75 JCL 185–193
doi:10.1350/jcla.2011.75.3.704
To continue reading
Request your trial