Provocation—Pushing the Reasonable Man Too Far?

Abstract

Almost every aspect of the partial defence of provocation has caused considerable debate over the years. Areas of difficulty range from the question of when the issue should be left to the jury, to the relevance of the defence to battered women who kill. The issue for consideration here will be the ˜reasonable or ˜ordinary man and the characteristics imputed to him in the light of the accuseds own character. R. v. Smith reaffirms the Court of Appeals view that the accuseds characteristics should be included at all levels of the test. Attitudes to this differ considerably. On the one hand, some argue that the doctrine weakens the legal requirement of self-control and is therefore only acceptable where the accused has been pushed to extremes. This is ensured by maintaining a highly objective approach and narrow interpretation of the ˜reasonable man. On the other hand, it is argued that, in the interests of attaining justice, characteristics of the accused should be imputed to the reasonable man in order to acknowledge that some people will find conduct more provoking than others, and that some individuals may have a lower threshold of self-restraint which should be taken into account. This article considers the merits of these two approaches by analysing recent English case law and contrasting this with Australian developments.