Reshaping the Subjective Element in the Provocation Defence

Abstract

At the heart of the provocation defence lies the assumption that the excusatory focus should be the all-too-human and supposedly characteristic tendency to act in a spontaneously retaliatory fashion, when provocation has led to great anger. What if this is not the characteristic reaction of someone who acts for mixed motives, when not only angry at but also fearful of the provoker? Making such cases central to a plea of provocation would reshape the defence so as both to restrict and to expand its availability in important ways, thus meeting some common criticisms of its current operation. The requirement that a defendant should have feared, as well as been angry at, a provoker, operates as what can be called a 'subjective' limiting condition, a new kind of limiting condition to set alongside more familiar 'objective' limiting conditions, such as the reasonable person test.