Saturday, February 22, 2014
Provocation and law
For an interesting authoritative – subject to statutory variation - survey of the law of provocation, see Daniel v The State (Trinidad and Tobago)  UKPC 3 (13 February 2014).
The partial defence of provocation has been repealed in some jurisdictions, including mine, making it difficult for me to get up enthusiasm for a detailed discussion. This mental sluggishness might also be found in students who no longer encounter what was an intellectually stimulating part of the criminal law course. Still, law wasn’t invented to amuse lawyers, was it?
What would be interesting to discover, in places where there is no longer a partial defence of provocation, is whether juries are nevertheless instinctively applying something similar – perhaps a commonsense feeling for justice? – and returning verdicts of guilty of manslaughter instead of murder in cases where the result would have been the same if the law of provocation had applied.
There is, in Daniel, the generally important point that ,  the judge must leave defences to the jury if they are available on the evidence, even if the defendant has not relied on them. See also Holt, discussed here on 21 February 2014.
Harmony was found  with the Supreme Court of Canada’s conclusion on self-induced provocation in Cairney v The Queen  SCC 55, mentioned briefly here on 1 November 2013.
Is a partial defence of provocation inconsistent with the so-called felony murder rule whereby a killing in the course of the commission of certain offences is automatically murder regardless of the defendant’s intention? The answer  is yes, the felony murder rule (again, in jurisdictions where it or its equivalent applies) makes the defendant’s state of mind irrelevant and there is no room for the defendant to say he acted under provocation.
The Board in Daniel swept away  the Camplin rule which had required provocation to be left to a jury if there was evidence of loss of self-control regardless of whether any reasonable jury could possibly find that a reasonable person with the defendant’s characteristics would have responded as the defendant did. In enacting the legislation under which Camplin was decided, “it was not the intention of Parliament to legitimise a perverse verdict.”