Provocation as a Defence Essay

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Provocation as a Defence

For a person to be criminally liable they must be commit the relevant prohibited act, or omission; the actus reus, and also be in the requisite mental state; mens rea, and also have no valid defence. Defences available cover situations such as insanity, duress or intoxication. However the Courts have accepted that there are situations in which a defendant has committed the relevant actus reus for murder, and also displayed thee relevant mens rea, and does not have a reasonable defence, however in the interests of giving the judges discretion and avoiding the mandatory life sentence dictated by a verdict of murder, the Courts have prepared to accept a series of partial
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In the case of Lesbini 1914, the Courts refused to accept a plea of provocation for a man who shot and killed a girl in charge of a firing range after she make insulting remarks about him, and in the case of Holmes v DPP 1946, the House of Lords did not allow the defence for a man who killed his wife after hearing her verbal confession of adultery. The decisions were often see as unfair and biased though, particularly angering womans groups with the defence of provocation’s easy availability to male defendants.

However in 1957, s3 of the Homicide Act 1957 removed the restrictive nature of the defence, this extended the definition of provocation to ‘things said’ aswell as ‘things done’, and also reaffirmed the position that the jury decides on the issue, by measuring the conduct of the accused against the standard of the reasonable man. S3 Homicide 1957 set out three elements which must be satisfied for the Courts to accept a defence of provocation and a verdict of manslaughter: There must be evidence that the defendant was provoked, the accused must have lost his self control, and the jury must be satisfied that a reasonable man would have acted in the same way.

Initially the judge will decide whether there is enough evidence of provocation to be put forward by the jury, s3
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