Self-Control in the Modern Provocation Defence

Abstract

Most recent discussion of the provocation defence has focused on the objective test, and little attention has been paid to the subjective test. However, the subjective test provides a substantial constraint: the killing must result from a provocation that undermines the defendant's self-control. The idea of loss of selfcontrol has been developed in both the philosophical and psychological literatures. Understanding the subjective test in the light of the conception developed there makes for a far more coherent interpretation of the provocation defence. It also makes clear just how radical various proposals for reform of the defence would be.-3-THE SUBJECTIVE TEST WITHIN THE CLASSIC DEFINITION In English law, provocation remains a common law defence. 6 If we are to understand its structure, therefore, we must look to case law for assistance. The first port of call is the so-called 'classic definition' 7 of provocation in R v Duffy. There Devlin J (as he then was) described provocation as: some act, or series of acts, done [or words spoken] ... 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. 8 Devlin J's statement places loss of self-control firmly at the heart of the provocation defence, a view given legislative force by section 3 of the Homicide Act 1957. 9 It also expands upon the notion of loss of self-control by adding two adjectives-'sudden' and 'temporary'-to the definition. This raises three questions that will be at the heart of our account: (i) what is self-control? (ii) what do we mean when we speak of someone losing their self-control, and what characteristics do they display? and (iii) what difference, if any, is made to the scope of the provocation defence by the addition to the definition of the words 'sudden' and 'temporary'? self-control that is habitually undermined.

Recognising the Role of the Emotion of Fear in Offences and Defences

“…states like stress and anxiety can destroy self-control'. 106 Distinguishable from responses to 'immediate fear', fear of a future event can shape perception and cognitive function, creating heightened anxiety, expectation and assessment of risk. Weiss notes, 'Fear sears the expectations of many, often making them suffer in anticipation .…”

Self‐Control as a Normative Capacity

“…(Henden, ; Mele, ; Sripada, ; Zhu, ). An important criticism brought up against their account is that classic belief‐desire theory is too narrow, and that in order to account for the process of self‐control we need a richer theory of action that involves executive notions such as intentions and willpower (Holton & Shute, ; Mele, ; Sripada, ). However, as we will see below, this move toward executive processes does not dispel all worries regarding the activity of self‐control as a process.…”

What is Addiction?

“…Such confl ict and ambivalence can produce signifi cant uncertainty, confusion, oscillation, and, hence, unclarity about what an agent in fact wants overall or how they or we could ever come to know what they want overall. (Holton and Schute (2007) off er a similar account of control that is based on overall judgments rather than wants.) Such want-based accounts of control contrast with reasons-responsiveness accounts (cf.…”