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Provocation and Pluralism

Timothy Macklem and John Gardner
The Modern Law Review
Vol. 64, No. 6 (Nov., 2001), pp. 815-830
Published by: Wiley on behalf of the Modern Law Review
Stable URL: http://www.jstor.org/stable/1097194
Page Count: 16
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Provocation and Pluralism
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Abstract

What is the best way to reflect human diversity in the structure of the provocation defence, and similar excusatory defences in the criminal law? The House of Lords recently concluded that the right way is to allow the jury to personalise and thereby qualify the apparently uniform 'reasonable person' standard mentioned in section 3 of the Homicide Act 1957. In this paper we argue that this is not the right way at all. We argue that the reasonable person standard, unqualified, already accommodates the only variations between people that the law should want to accommodate in an excusatory defence. To defend this view we revive the common law's tripartite analysis of the 'objective' (or impersonal) issues in the provocation defence: first, was there an action capable of constituting a provocation? second, how provocative was it? and third, how much self-control should have been exhibited in the face of it? We show that these questions each have a built-in sensitivity to certain variations between different defendants' situations, but that this does not detract from their objectivity (or impersonality). We argue that no more sensitivity is needed in the name of human diversity, and what is more that no more sensitivity is desirable.

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