For an
interesting authoritative – subject to statutory variation - survey of the law
of provocation, see Daniel v The State
(Trinidad and Tobago) [2014]
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defence of provocation has been repealed in some jurisdictions, including mine,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 [13], [56] 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 [33] with the Supreme Court of Canada’s conclusion on self-induced
provocation in Cairney v The Queen
[2013] 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 [46] 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 [57] 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.”
