The Defence of Provocation – Where Are We Now?

Abstract

The legal development towards treating provocation and emotional stress as factors that may create reasonable doubt as to the presence of criminal capacity is not only novel but revolutionary. Essentially, the law has recognised that a person who causes the death of another can be acquitted of murder, despite suffering no mental illness or defect at the time of killing, if evidence points to provocation and/or severe emotional stress at the time of the commission of the killing leading to a loss of criminal capacity.This dynamic approach is based on the psychological or principle-based approach to criminal liability, which is founded on the idea that unless an individual possesses the capacity or the fair opportunity to regulate her behaviour in accordance with the requirements of the law, she should not be liable for the unlawful consequences of her behaviour. In terms of the psychological or principle-based approach, where any subjective element of criminal liability is lacking, the accused cannot be convicted of the offence in question. The particular focus of this note is non-pathological incapacity or “emotional collapse”, which has been attributed to emotions such as fear, shock and anger. In this regard it is notable that the Rumpff Commission report expressly held that, in contrast to cognitive and conative functions, which can exclude capacity, and thus criminal liability (see further below), “affective emotional disturbances” do not per se do so, “especially if the behaviour of the person concerned gives or has given evidence of insight and volitional control”. Nevertheless, where such “affective emotional disturbances” contribute to a lack of either cognitive or conative capacity, they are indeed relevant to liability.Criminal capacity or “toerekeningsvatbaarheid” is one of the cornerstones of the system of criminal liability.