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Abstract: Reflecting the status of murder in the criminal law, the partial defence of provocation attracts high levels of attention from reformers, scholars and activists. In recent decades, law reform efforts and legal theoretical scholarship have focused on the appropriate limits on the scope of the defence and on its availability to “deserving” defendants. In the attempts to limit the scope of the defence, its objective element, according to which the defendant is compared to the reasonable or ordinary person, performs a central role: benchmarking the moral-legal evaluation of individuals facing murder charges. Covering England and Wales, and Australian criminal jurisdictions, this article presents an overview of scholarship and current laws on provocation and makes a case for reform of the defence. It argues that case law developments show that, as it is at present, it is not possible to formulate the objective limb so that it can bear the weight of the task of sifting deserving from undeserving cases of provocation, compromising the intellectual coherence and practical utility of the defence. Harnessing the exculpatory power of relevant mental illnesses presents a way forward for provocation, and we present a novel discussion of how post-traumatic stress disorder (PTSD) might be accommodated within the objective limb. Proposals are adduced for a new four-part framework for adoption, centred around a new social contextualisation of PTSD, and broader consideration of forensic expert evidence.
Keywords: homicide; defences; provocation; objective fault; control and response characteristics; Australia; England and Wales; extreme provocation; New South Wales; PTSD and military veterans; juror directions; law reform
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