The Doctrine of Provocation

Abstract

In English law the defence of provocation operates to reduce to manslaughter a killing which would otherwise be murder. The defence is not available on any charge other than murder: provocation is generally regarded as a matter which goes in mitigation of sentence, being insufficiently fundamental to qualify as a complete defence. Even in murder cases the defence ought only to succeed where the jury is left in reasonable doubt that the accused killed during a sudden loss of self-control caused by provocation which was enough to make a reasonable man do as he did, a test which has been criticised as unduly restrictive. The objective standard, embodied in the requirement “enough to make a reasonable man do as he did,” has attracted almost unremitting criticism from the writers. What function is the objective standard intended to perform? Does it perform this function successfully? In searching for the answers to these questions, the two factors isolated by Aristotle—the role of the provoker in causing the incident and the role of perceived injustice in weakening self-restraint —foreshadow the lines of inquiry.