Development of Defense of Provocation

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Development of Defense of Provocation

Question: Critically evaluate the development of common law principles applicable to the defence of provocation in criminal law from the decision in Mancini v DPP [1942] AC 1 to Mascantonio v R (1995) 183 CLR 58. Assess the degree to which the common law has proved inflexible in responding changing societal needs and expectations. Are there other legal means of achieving substantive justice?

At the time of the case of Mancini the concept of provocation as a defence to murder was already a well established one dating back centuries. It originated from the days when men bore arms and engaged in quarrels of violence that often resulted in a homicide being committed. For provocation to be an ample defence to murder it needed to be something which incited immediate anger, or "passion" and which overcame a person's self control to such an extent so as to overpower or swamp his reason. What this something can be has been the subject of many views through the centuries, and these views have strongly depended upon the type of person whom the law has regarded as deserving extenuated consideration when provoked to kill. In the words of Viscount Simon "the law has to reconcile respect for the sanctity of human life with recognition of the effect of provocation on human frailty. " In this regard the difficult concept of the "reasonable man" or the "ordinary man" has developed and with it the legal doctrine that provocation must be such as would not only cause the person accused to behave as he did but as would cause an ordinary man to so lose control of himself as to act in the same sort of way. It is therefore interesting to examine how the doctrine of common law in relation to provocation has responded to changing societal needs and values. It also provides a useful case study in which the development of common law doctrine can be observed. It is useful to conduct a case-by-case analysis of the rule of provocation as a defence to murder in order to more effectively observe the legal evolution that has taken place.

In the case of Mancini v DPP [1942] AC 1 the appellant had been convicted for murder after stabbing a man to death in a club. The appellant's counsel contended that the trial judge should have directed that the jury was open to find provocation to reduce the appellant's conviction to manslaughter. Lord Simonds provided direction upon what kind of provocation would reduce murder to manslaughter. He said that the provocation must temporarily deprive the provoked individual of self-control and in deciding this regard must be had to the following circumstances: the nature of the act which causes death, the time which elapsed between the provocation and the act which caused death, the offender's conduct during that interval and all other circumstances which indicate his state of mind. It is here that the well known characteristics of "an unusually excitable or pugnacious" person are excluded from amounting to provocation. Lord Simonds also said that "the mode of resentment must bear a reasonable relationship to the provocation if the offence is to be reduced to manslaughter."

The case which was to follow Mancini was Holmes v DPP [1946] AC 588. In this case a man killed his wife after a confession of unfaithfulness on her behalf. He was convicted of murder and appealed that the defence of provocation should have been left open to the jury. In his judgment of the case Viscount Simon stated that the crux of the case was whether "mere words can ever be regarded as so provocative to a reasonable man as to reduce to manslaughter felonious homicide committed upon the speaker in consequence of such verbal provocation." "Mere words" however were attributed with having more than one meaning. There were words which were provocative by insulting or abusive language, and words that conveyed information of a fact, or an alleged fact. In regards to verbal abuse Viscount Simon made his opinion...
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