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Essays in Criminal Law in Honour of Sir Gerald Gordon$
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James Chalmers and Fiona Leverick

Print publication date: 2010

Print ISBN-13: 9780748640706

Published to Edinburgh Scholarship Online: March 2012

DOI: 10.3366/edinburgh/9780748640706.001.0001

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Don’t Look Back in Anger: The Partial Defence of Provocation in Scots Criminal Law

Don’t Look Back in Anger: The Partial Defence of Provocation in Scots Criminal Law

Chapter:
(p.195) 12 Don’t Look Back in Anger: The Partial Defence of Provocation in Scots Criminal Law
Source:
Essays in Criminal Law in Honour of Sir Gerald Gordon
Author(s):

Claire McDiarmid

Publisher:
Edinburgh University Press
DOI:10.3366/edinburgh/9780748640706.003.0023

Provocation privileges homicidal fury. It allows certain persons who kill in that state to be convicted of culpable homicide rather than murder. It does not do this overtly and it does not, in theory, exclude those who kill under the influence of other extreme emotions, but the conditions of the defence still lend themselves to a response of excessive anger to the initial provoking act. It has not been particularly problematic operationally in Scots law but this is because its scope is extremely limited rather than because it works well in identifying circumstances in which the accused truly deserves to be partially excused. This chapter argues that, to be fit for purpose in a twenty-first-century society, provocation cannot escape reform. It considers the influence of its historical development, from its roots as a form of excessive self-defence, and the lack of clarity in the law to which this led in the early part of the twentieth century. It argues that it is no longer appropriate to limit the entry points into the defence — the provoking acts — to the historically contingent behaviours of violence and the discovery of sexual infidelity.

Keywords:   Scots criminal law, homicidal fury, provocation, self-defence, violence, sexual infidelity

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