Law reformers consider ‘muddled’ provocation law

The defence of provocation, whereby a killer is convicted of the lesser offence of manslaughter rather than murder, was so beset by “moral and theoretical difficulties” that it should be scrapped, claimed the Law Commission last week.

The Law Commission consultation paper comes in the wake of ministerial concern that too many men who kill women in the home are convicted of the lesser offence. The Government’s law reform body was asked by Home Secretary David Blunkett to look at partial defences of diminished responsibility and provocation, particularly in the context of domestic violence.

“There’s a problem with the law on provocation that institutionalises the idea that an attack by a man on his wife is her fault,” the Solicitor-General Harriet Harman said recently. She argued that this law meant the victim was characterised as “a nag or a bad mother”.

“We don’t believe that the law of provocation should remain as it is. We’ve examined the problems of the present law… [They] are deep and wide,” said the Law Commission. It quoted the “penetrating judgment” of the late Professor Sir John Smith in R v. Smith (Morgan) (2001), which concluded with the words: “What a muddle.”

On the one hand, the Law Commission argued that there was “the need to protect and respect human life, and therefore not to condone, even partially, the actions of those who kill through failure to control their emotions”; and on the other people were sometimes provoked to kill in circumstances which called for “a degree of compassion”.

If it was abolished, then the law reform group argued that the Government would have to take a look at, and possibly scrap, the mandatory sentence of life imprisonment for murder. They argued that the judge could take into account excessive force in self-defence when passing sentence. The consultation process comes to an end on 31 January 2004.