Gross Provocation Model

The prosecutor must also consider the views of the victim in regard to the impact of the offence. With sexual offences the safety of victim and children must be considered.

Defences for Murder There are only three partial defences for murder; suicide pact, provocation-the loss of self control and reaction must be instantaneous and diminished responsibility. Amongst the three mentioned two are most frequently used, these are provocation and diminished responsibility, and only one full defence, self defence. These defences are used to reduce the sentence charge by the defendant to manslaughter from murder. In the following text I will be examining how men use provocation and diminished responsibility to walk free from murder.

Despite recent reforms on the law of murder and voluntary manslaughter; including the special defence of diminished responsibility and loss of control, there are still inconsistencies present making the law unsatisfactory. This area of the law is in ‘dire need of reform’; as pointed out by the Law Commission in their 2006 report; Murder, Manslaughter and infanticide. The report stated how ‘The Law governing homicide in England and Wales is a rickety structure built upon shaky foundations.’

Provocation was previously controlled under S2 of the homicide act 1957, the act stated where a person kills or is party to a killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing. The new defence S54-56 Coroners and Justice Act 2009 replaced defence of Provocation S3 Homicide Act 1957; it came into force October 2010.

Murdering someone may not be seen as been a proportionate response. However, recognition of the ongoing nature of domestic violence may result in the offender receiving a light sentence or even a good behaviour bond for their crime. The removal of the provocation defence may in fact disadvantage women who see no other alternative than to defend themselves against abusive partners.

The recently passed ‘Sentencing Amendment (Coward’s Punch Manslaughter and Other Matters)’ arose within a highly politicized context and has led to controversy. The amendment was introduced in response to a perceived increase need to legislate on deaths caused by king hit punches or “coward’s punch”. It amends both the Crimes Act 1958 (Vic) and the Sentencing Act 1991 (Vic), by defining a punch to head or neck as dangerous act, introducing a mandatory minimum sentence of 10 years for manslaughter by one punch, and increases the mandatory minimum sentence for manslaughter by gross violence to 10 years . However, there is likely little need for this legislation, as pre-existing law was already capable of dealing with the offence, and the implementation of this legislation will likely fail to effectively achieve its purpose. Moreover, the introduction, or increase, of a mandatory sentence will be unlikely to effectively deter individuals, and will remove the courts discretion regarding sentencing. In this essay I will argue that the legislation is unneeded to prosecute those who king hit others, and that it will likely fail to have its intended effect.

Under this act the defence of Provocation has been abolished (s.54). The requirement of the loss of control needing to be ‘sudden’ has been removed (s.54(2)) this change will make the defence more available to abused partners who kill in self-defence. This was an issue in the Ahluwalia case where eventually a diminished responsibility plea was accepted after a lengthy appeal and retrial. The new defence has also tightened the law (under s.55(6))so the loss of control defence can not be used in cases where someone has killed for revenge – as in the case of Ibrams and Gregory or for marital unfaithfulness as in the case of Davies. This may now have dealt with the long term suggestion that, due to its historical background and the nature of men as more likely to “snap” in anger, that provocation was a male orientated defence. Another major criticism of the previous defence of provocation was the reasonable person test (objective test). Prior to the new defence this part of the provocation defence was left in confusion with the House of Lords decision in Smith(Morgan) conflicting with the Privy Council decision in Holley and then the Court of Appeal following Holley rather than Smith(Morgan) thus departing from precedent. This may now be resolved because the new defence of loss of control under s.54(1)(c) seems to confirm the legal principle set out in Holley and Camplin.

However, in order for the purpose of partial defence for murder to be protected and to guard against abuse. The Law Commission decide to advocate the reform of the defence of provocation so that decisions like the one in the case of R v Doughty (1986) 83 Cr App 319) would no longer be followed. This was a case of a father who killed his seventeen day old child. The father was to take care of the child because the mother was in hospital in need of intensive care…. Because of cases like this, one might be easily persuaded to support the argument that killing in response to words or conduct should always be

The casualty helps in deciding if the case is the first degree or second degree. Furthermore, in some jurisdiction, the degrees of manslaughter are known as voluntary or involuntary manslaughter and non-negligent or negligent manslaughter. A person who has intentions to harm victims will face the most serious forms of manslaughter. Any offender that carries out an assault in a spontaneous act of violence with little time of deliberation will be legally processed as a first-degree manslaughter case. When a person kills or harms someone because of speeding, carelessness, or recklessness these cases or most of the time are considered as second-degree manslaughter. These types of cases consideration are the negligent or illicit behavior of the offender. Nonetheless, in this article it shows the commitment to regard provocation manslaughter as an offense as regulating hypothetical issues and that it is conceivable to do this as a functional issue (Huigens, 2011). The best hypothetical depiction of provocation manslaughter is as an offense and not as a partial justification defense or as an incomplete reason commenced a fractional loss of dependable

Discuss the extent to which recent reforms to murder in the Coroners and Justice Act 2009 are a change for the better but have not necessarily satisfied those who campaigned for change.  [50]

Provocation has already been abolished in Tasmania, Victoria, Western Australia and New Zealand. In the Northern Territory and the Australian Capital Territory, the defence has been modified so that a non-violent sexual advance cannot, without additional factors, constitute provocation. In New South Wales, non-violent sexual advance cannot provide a basis for provocation, and any other provocation must be “extreme” (Toole, 2015). The law had been abolished in these jurisdictions due to the unjust use of the defence that caused public outrage. The law was abolished in 2005 in Victoria due to the Ramage case, Julie Ramage became a rallying point for law alteration, with about 3,500 letters calling for change sent to her family to be conveyed to the government.

The Judge held that the phrase “sudden and temporary loss of control’ summarizes the main idea of the defence of provocation, and that its main purpose as a defence is strictly concerned with the actions of an individual who as not that that moment master of his own mind. However, the longer the interval of time between the provocation and the fatal act the stronger the evidence on deliberation.11

The rights forfeiture theory is rather self-evident when applied to mala in se crimes because the ‘wrongful harm’ is very clear; however, Wellman elaborates that mala prohibita offences are more convoluted because the crimes do not necessarily harm another individual directly (80). To reinforce his assertion, Wellman compares two cases of rape. In one instance, a thirty-year-old rapist forces a victim of the same age “to have sex at gunpoint” (80). In an alternative case, another individual, also thirty years old has consensual sex with an individual under the age of eighteen, meaning the offence is statutory rape (80). Wellman explains that the first case of rape “poses no special problems for the rights forfeiture theory” since the individual undoubtedly violated another individual’s rights (80). However, in the case of statutory rape the conclusion is rather

Also “Von Hentig criticised the traditional offender-oriented nature of criminology proposing a new dynamic approach to the study of crime that incorporated clear recognition of the victim’s role in the crime” Victim precipitation has its advantages, as today it can be used as a case of defence where by the defendant can plead man slaughter/self-defence due to the victim provoking the defendant which led to the murder/attack being committed. (Brookman, F2005)

The Supreme Court case, R v Vollmer[8], states that the appellant was convicted of murdering his de facto partner – where evidence as to the deceased’s past violent history in a previous relationship was available at the time of trial but not relied on by defence counsel – where there was no evidence led at trial or on appeal of a history of violence between the appellant and the deceased – where the appellant sought to rely on the defences of self-defence and provocation at trial under sections 271(2), 304 and 668E(1)[9]. Where the cases R v Hajistassi[10], R v Mogg[11] and Re Knowles[12] were applied as precedent to the final decision of the case.