Essay on The Defence of Provocation

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.’

As a result, some academics and legal commentators believe that the defence of loss of control should be abolished, including Professor Jeremy Horder. He argued that killing in anger is no more worthy of a defence than killing as a result of greed or envy. (Jeremy Horder Provocation and Responsibility (1992, OUP). But we must not allow our emotions to over-ride our legal reasoning. Taking into consideration the mandatory life sentencing for murder, defendants with mitigating circumstances to kill will be unfairly locked away for life if defence for loss of control is abolished.

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.

The criminal justice system plays a fundamental role in achieving justice, as the system aims to protect all members of the community fairly and equally. However, in the criminal case of R v Loveridge, it is evident that the justice system fails to apply the law to equally balance the needs of the victims and the community. In this case, the offender Kieran Loveridge pleaded guilty to five counts of offences; three charges of common assault, one charge of assault occasioning actual bodily harm and one charge of manslaughter by an unlawful and dangerous act, the victim being Thomas Kelly, Loveridge received 4 years’ non-parole for manslaughter, Loveridge’s total effective sentence therefore is 7 years and 2 months with an effective

Words alone, even aggressive ones, can not constitute an assault and must be accompanied by some bodily act or gesture that indicate a present ability to effect a purpose. In R v Secretary it was held that the reference to ‘present ability’ meant an ability, based on known facts as present at the time of the making of the threat, to effect a purpose, and that the threat may be one of future violence, and not an apprehension of immediate violence. In this case, it was Livingstone’s aggressive nature in addition to the knife in his hand that instilled in Blyton an apprehension of a future threat of personal violence which constitutes assault pursuant to s 245 and satisfies the first condition of s

The purpose of this report is to discuss the matter The Queen V Bayley, which took place on the 29th of September 2012. Adrian bailey (serial rapist) was found guilty on charges of murder and rape, this report will discuss in detail the court proceedings that lead up to the imprisonment of Adrian Bayley and also the events prior to the kidnapping of Jill Meagher. The purpose of this report is to discuss the purpose of law in our society and how it applies to people who commit crimes in our community. As well as the purpose of criminal law in our community.

This essay will ultimately contend that the Sentencing Amendment (Coward 's Punch Manslaughter and Other Matters) Act 2014 is an ill-founded initiative made by legislators, giving the impression of a powerful Government without truly reducing the violence. Using a close reading of each provision of the legislation in unison with extrinsic materials, this piece will outline the efficacy, necessity and likely impacts of the Act.

Question 4 - Assess the use of the defence of provocation in achieving justice for victims, offenders and society. (10 marks)

Judges and magistrates must consider a wide variety of factors when determining a sentence for an offender. Primarily, the sentence must coincide with the statutory guidelines e.g that set out in the Crimes (Sentencing Procedure) Act 1999 (NSW), and the judicial guidelines that set precedent for all judges and magistrates in the state. Within this legislation are the purposes for which a sentence may be imposed, types of penalties, minimum/maximum sentences and mandatory sentences.

However, for such defence to succeed, the first thing that must be established is that the threat made to defendants or to a person in close connection with them, is of death or serious physical harm. Duff identifies in one of his recent research , this raises an issue as, why one should not be able

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

n criminal law, the mens rea refers to the defendant's state of mind at the time of their crime and there are several levels reflecting the need to have a particular mens rea for the offence committed. For example, in murder or a S:18 offence in the Offences Against the Person Act 1861, the mens rea present must be that of specific intent, which is where the defendant desired that particular outcome of their actions. However, it was held in R v Cunningham 1982, that the intention to cause serious harm was enough to satisfy the mens rea for murder. This shows that, where murder cases are concerned, that it is relatively easy to prove the required mens rea and in doing so the concept of fault is often satisfied. This is once again shown in oblique

The select committee’s own proposal was for the implementation of a gross provocation model. Although there were a number of components, the most significant change is for the replacement of “loss of self-control” with a “grossly provocative” test that caused a “justifiable sense of being seriously wronged”. There are a number of issues with this proposal. Under this, words will suffice and the jury may take into account “all circumstances” of the accused. Thus, the provocation defence may once again become available in cases such as Ramage, where the deceased stated that sex with the accused repulsed her, and Kumar, where the accused was called “low caste”. In both scenarios, the defendant could claim that the deceased’s conduct was grossly

The death penalty is a legal act taken to punish those whose crime is most heinous. A man, by the name of Robert Lynn Pruett, was recently sentenced to death, but the amount of evidence against him is being questioned on whether or not it was sufficient enough for him to receive the death penalty. Pruett was already in prison for being an accomplice to murder, a murder that his dad committed. He was fifteen when his father killed their neighbor, and was placed into prison with a ninety-nine year sentence, simply because he was at the scene of the crime (McCullough, 2017). Within the next five years, he was being accused of yet another murder.

In the case of S v Maluleke offender received a suspended sentence after being found guilty of murder. The reason for this unusual sentence was because the mother of the victim only wanted the offender to show her remorse and apologise for her wrongdoing. Showing that legislation should not “deter courts from investigating…[and] introducing…alternative sentences into our criminal justice system.” It should be important to consider that “when nothing is to be gained by punishment, it should not be imposed even…when it is deserved.”