Loss of Self-Control as a Defence: The Key to Replacing Provocation

A Comparative Analysis of English and French Defences to Demonstrate the Limitations of the Concept of Loss of Control

“…20 Amanda Clough has suggested: "Circumstances' suggests being able to consider prior abuse as an external element rather than having to try and deem it as a characteristic by internalising it as some kind of syndrome or character flaw." 21 Both the defence of loss of control and the defence of self-defence are therefore restricted by the application of an objective test. These objective tests have slightly different nuances but following the shift away from Smith (Morgan) 22 the reasonable person should be quite a consistent individual (though taking into account differences between juries).…”

Provocation in New South Wales: The need for abolition

“…Historically, provocation emerged in English law in the sixteenth and seventeenth centuries as a concession to human frailty at a time when inflexible homicide laws meant that capital punishment was mandatory for all offenders convicted of murder (Ashworth, 1976; Brookbanks, 2006; Clough, 2010; Dressler, 2002; Stewart and Freiberg, 2009). Designed for men defending their honour against other males (Forell, 2006), the partial defence provided an alternative verdict of manslaughter that allowed judicial flexibility in imposing a conviction that would not result in execution (Lane, 2004).…”

“…Similar reforms have been introduced in comparable jurisdictions both nationally and internationally, 15 and as such NSW could draw upon the experiences of like jurisdictions in implementing this reform. Specifically, NSW could borrow from the framework of provocation in sentencing as proposed in Victoria by Stewart and Freiberg (2008), as well as research that has begun to examine the effects of abolishing provocation in these jurisdictions (Clough, 2010; Fitz-Gibbon and Pickering, 2012; Tyson, 2011). Importantly, what this research has begun to highlight is that in contrast to the assumption that abolishing provocation as a partial defence to murder would ensure these cases are better dealt with at sentencing for murder, there is the possibility that a displacement to other categories of homicide, such as manslaughter by unlawful and dangerous act, will occur (Fitz-Gibbon and Pickering, 2012).…”