Brief summary on prov 

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  • Created on: 04-01-11 20:09
Preview of Provocation

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D may be able to plead the partial defence of provocation to reduce his charge to voluntary
manslaughter. In order to use provocation as a defence there must be evidence of provocative
conduct. The Homicide Act 1957 states that provocative conduct can occur through "things done,
things said or both together". Such provocation does not need to be illegal or wrong (Doughty). The
provocative conduct does not need to be aimed at D (Pearson). D can also be provoked through a
mistake of fact, where D wrongly believes something is happening. In such a situation the law states
that a mistake of fact should be treated as if the facts were as D believed them to be, so long as the
mistake of fact is honest and genuine (Brown). Provocation can also be self-induced by D. In this
situation, the response of D must be extreme in comparison to D's original act (Edwards). Therefore
there is evidence of provocative conduct.
The second part of the defence of provocation is that D must suffer from a loss of control. The loss of
control must be through a loss of temper, unlike in Cocker where he was a compassionate killer.
Duffy added to this stating it must be "sudden and temporary". There must not be a cooling off
period between the provocative conduct and the killing (Ibrams). It is also possible for the
provocation to occur over a period of time, as long as one final act brings the loss of temper
The final part of the defence of provocation is the test of the reasonable man. This test has
developed from Camplin, so that the relevant characteristics of the D should be considered when
addressing this question. This can include Morhall (glue sniffing) or Battered Woman's Syndrome
(Thornton). In the case Holley it was decided that age and gender would always be the relevant
characteristics to consider. So therefore we ask the question, would a reasonable person of the
same age and sex have been provoked to behave in the same way?


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