What is Provocation in Criminal Law?

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Provocation is a valid partial defence to a murder charge, and can result in a reduction of the charges from murder to manslaughter.

If you are facing a charge of murder, you could of course serve a long-term jail sentence if you are found guilty.

While manslaughter is still considered a serious offence, it carries lighter penalties.

As with any serious offence, it is important to be aware of all possible defences if you want to plead not guilty, so that you can make an informed decision and get the best possible outcome from your case.

There is some controversy in legal circles around how valid and effective provocation is as a partial defence to murder charges.

If you wish to use this defence, it is important that you speak to an experienced criminal lawyer with a strong track record in successfully defending murder charges.

What does provocation mean?

Provocation in criminal law terms means that the act of murder was committed under provocation from the deceased, in terms of words or actions towards the accused.

For a defence of provocation to be acceptable, the manner that the deceased acted in has to be considered such that it would have induced an ordinary person to lose self-control, and form an intention of killing or seriously harming the deceased person.

Provocation is generally considered to be something that happened immediately before the offence was committed, but it can also be applied in circumstances where there was ongoing and continuous provocation over a longer period of time.

Ongoing domestic violence situations where the defendant was abused or belittled by the deceased for a long period of time before committing the offence are an example of this type of provocation.

What is a ‘partial defence’?

There are a number of defences to murder cases that are considered ‘partial’ defences, including provocation, substantial impairment and excessive self-defence.

A partial defence is one that does not allow a defendant to avoid conviction entirely, but if successful can reduce a murder charge to a less serious charge of manslaughter.

Sentences for a conviction of murder can be extremely harsh, and can often include long-term imprisonment.

You may still receive a prison sentence for a manslaughter charge, but it is likely to be shorter in duration than for a murder charge.

Why is provocation controversial as a defence?

Moves have been made towards amending the circumstances in which provocation in criminal law can be applied.

Over recent years, public opinion has shifted towards more personal responsibility in murder cases, and for many people it is no longer considered excusable to commit an act of murder due to loss of self-control.

Recent cases where murder charge defendants have had their charges substantially reduced due to provocation have created public controversy, particularly in situations where the provocation was due to a relationship breakup or infidelity.

There are exceptions to this, however, and provocation can still be used very effectively as a partial defence in certain circumstances, particularly in cases where the defendant is female and was the victim of sustained emotional or physical abuse from the deceased.

If you are unsure whether or not a defence of provocation is appropriate in your circumstances, your criminal lawyer can advise you.

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Ugur Nedim

Ugur Nedim

Ugur Nedim is an Accredited Criminal Law Specialist with 25 years of experience as a Criminal Defence Lawyer. He is the Principal of Sydney Criminal Lawyers®.

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