Why didn’ t Parliament fully adopt the Law Commission’ s recommendations? Will a tentative approach to change really prove more beneficial than a complete upheaval? When all is said and done, problems must be solved, save the previous problems of the law is simply redefined or shuffled to another area of the same law. This is what appears to have happened in the changes made to the defense of provocation; the tentative steps have laid the ground for a rebirth of the court’ s constant battle with defining the law and laying down its boundaries.
Perhaps the time has come for Parliament to bring more dramatic changes in its law-making process. The previous defense of provocation was defined in section 3 of the Homicide Act 1957: which required that the defendant has been ‘ provoked verbally or by actions to lose his self-control’ . The test was two-tiered, as is often the case in criminal law, the latter being an assessment of whether the provocation was enough to make a reasonable man do as he did. The matter was to be left to the jury to decide what effect the provocative elements would have on a reasonable man, and thus decide whether the reaction was thus reasonable.
A successful defense of provocation could have no men's reaper use, such as premeditation or intent, 2 and its application rotated on the fact that the defendant ‘ was not thinking’ , that he indeed ‘ lost control’ of his actions. Described more neatly in Duffy, 3 it is ‘ an act which would cause in any reasonable person and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind’ .
Provocative words alone are generally held to be insufficient4 and actual violence from the victim to accused is the typical case which will be submitted as a provocation defense. However, the law had long recognized that a defense of provocation would be allowed for a man finding his wife in the act of infidelity, 5 providing the first strong undertones of the outdated characteristics of the law.
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