The Provocation Predicament

• Date: 01 January 2010
• Author: Anthony Mcgrath

The Provocation Predicament

Dr AN THON Y MCG R AT H

Provocation is a difficult and contentious aspect of the law of criminal

homicide, perhaps best understood amongst its historical context before the

complexities of conflicting dicta, precedence, practice, and academic

comment blurred its boundaries and scope. One of the primary prerequisites

of the criminal law has always been that individuals control their behaviour;

indeed this is the standard upon which the viability of any society depends,

and the importance the criminal law attaches to the maintaining of self-

control reflects the innate connection between the elementary principles of

criminal liability and the moral infrastructure of our society.

The presence of provocation in our common law serves to operate as a

partial defence to murder.1As it does not function as a complete defence

exonerating the offender, an acquittal will never be justified. This mitigation

acknowledges that some act or series of acts done or said, or a combination

of both, emanating from a person who does not necessarily have to be the

victim, can provoke the offender to lose control and commit a fatal act. This

loss of self-control is deemed to be temporary insofar as the offender would

be able to avail of the defence of insanity if the loss were in any way

permanent. More significantly, there is also a recognition that the loss of

control is not entirely complete; that there remained a possibility that the

offender could, but did not, reason himself out of his emotion.

Academics have long debated whether provocation amounts to a partial

defence because the killer claims to have done the right thing: a justification;

or that what he has done is wrong but that the provocation amounts to an

extenuating circumstance: an excuse. The doctrine of provocation emerged

in parallel with the development of early quixotic concepts of honour, where

it was expected that an insult or attack upon the esteem of a man be

avenged with resort to a lethal weapon. It therefore initially developed on

a justificatory basis, for the cause of the killing “rested not in the hatred or

design of the slayer but rather in the actions of the deceased who aroused

the slayer’s passions.”2This explains the early requirements that the

provocative conduct had to be unlawful, thus making the response of killing

less socially adverse, and that it had to emanate from the deceased, so that

1In most common law j urisdictions, provocation can only be invoked to a charge of

murder but is considered a mitigating circumstance when sentencing for most other

criminal offences.

2Ashworth, “The Doctrine of Provocation” (1976) 35 Cambridge Law Journal 292,

p 293.

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