Essay on The Defence of Provocation

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

Furthermore, throughout sentencing and punishment various legal and non-legal measures have been implemented to ensure that sentences for those convicted are appropriate and effective to enable rehabilitation and reintegration into society and provide the community with a sense of justice and security. The provision of statutory and judicial guidelines means that limits are placed on a judge’s discretion when sentencing, thus ensuring sentencing consistency. These guidelines were established in relation to the case R v. Jurisic (1998). The defendant Jurisic, pleaded guilty to three charges of dangerous driving occasioning in grievous bodily harm. He was found under the influence of cocaine on one of these charges. He was sentences to 18 months home detention, lost his driver’s licence for one year and was put on a good behaviour bond for two years. This was through to be lenient and was appealed by the DPP. The appeal was upheld and the sentence was replaced by two years imprisonment and two years disqualification of his driver’s

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.’

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.

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

In Australian society, which prides itself on being a just society displaying equality and justice throughout its laws, Australians get away with murder. Provocation is the act of losing control after being provoked or angered in some way. A successful provocation defence can reduce a murder charge to manslaughter. All Australians who commit a serious crime, such as murder, should be punished equally and take full responsibility for their actions. It is a violation of justice if one person can get away with murder using provocation and another cannot. It does not demonstrate equality among all Australians. The law of provocation is a biased law, which discriminates amongst Australians. Therefore, it needs to be abolished.

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

In the United States the degrees by which a person can be charged with killing another person vary; the degrees of murder include first, second, and third degree murder, the definitions of which can vary in legal terms from state to state. These charges are considered to be legally separate from voluntary manslaughter, involuntary manslaughter, and justifiable homicide which each have their own definitions (Cole, Smith, & DeJong, 2014). Each type of murder, manslaughter and homicide is determined by intent and negligible behavior and each will be examined in this paper (Cole et al., 2014).

‘R v Stone; R v Dobinson’ is significant as it addresses the point of ‘duty of care’ and the outcome was described as “highly controversial because of the low capabilities of the two accused” . Appellant Gwendoline Dobinson was treated differently to appellant John Edward Stone due to her gender. Dobinson was expected to care for Fanny due to women being the “primary care-givers in domestic relationships” , proving that “the rule on voluntary undertaking of responsibility potentially remains structurally gendered” . The case was dealt within the Criminal Division of the Court of Appeal by Geoffrey lane LJ, Neild and Croom-Johnson JJ. The appeals against conviction were dismissed although the appeal by Stone against his sentence was allowed, altering his sentence. The decision was also influenced namely “whether in a case of manslaughter it is necessary to prove that the defendant was reckless as to whether the victim would suffer death of serious bodily harm” .

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

Here the defendants conduct must create a particular result e.g. murder, where the accused’s act must cause the death of a human being e.g. R v Mellor [1996], here the defendant injured the victim who died two days later in hospital, thus defendant was found guilty of murder by the court.

In the case of McDowall v. HM Advocate, a man was charged with culpable homicide for driving recklessly. The presiding judge stated that the man had ‘utter disregard for the victims and the fact that he drove with the bonnet in an upright position are factors that the jury were entitled to take into account’ when considering his state of mind at

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.

The defence of provocation in assault cases is considered a full defence by Hume and Macdonald this idea was upheld in the case of Hillian v HM Advocate but was heavily criticised by the judges in the case of Crawford v HM Advocate in which Lord Justice-General Cooper stated that provocation is not a special defence and does not allow for exoneration of the accused and said that he found himself considerably confused as to how that decision was reached in Hillian. Another case that refuted this view was the case of Drury v HM Advocate in which the court stated that Hume’s view on provocation has fallen into disfavour and now the more accepted view is that provocation will have a considerable effect on the sentence imposed at the finding of guilt. This simply means that provocation is a plea in mitigation rather than a complete defence in assault and murder cases.

The Function of the Judiciary Within the Constitution of the United Kingdom If miscarriages of justice occur, then not only is the defendant treated very unjustly, but also society (including the victims of crime) has not been accorded the gains in terms of safety, retribution and possible rehabilitation which should flow from an accurate conviction. The question requires us to examine the possible failings, which arise from the personnel by which justice is administered. Taking the argument that case outcomes are construction of fact as mediated by social and professional perspectives, it must be worthwhile to examine some aspects of the performance of the judiciary, who are undoubtedly major