As Thomas Ross notes in yesterday’s Scottish Legal News, the current common law requires provocation in a murder case to take the form of sexual infidelity or physical violence. Mr Ross sought comments on the Scottish Law Commission’s provisional view that the partial defence of sexual provocation ought to be abolished in homicide cases. By contrast, I argue in a forthcoming article that provocation should be more widely defined, to encompass other highly provoking situations. (“Reforming the Scottish Law of Homicide: Lessons from the Draft Criminal Code for Scotland” [2023] 3 Criminal Law Review 173). For example, suppose that D is informed by V that V sexually abused D’s children several years previously. V’s behaviour does not come within the current definition of provocation in Scottish Law, such that if D were to kill V immediately upon hearing this, D would be guilty of murder, rather than culpable homicide.

Twenty years ago, Eric Clive, Chris Gane, Sandy McCall Smith and I authored a Draft Criminal Code for Scotland. This was largely intended as a codifying measure, re-stating the common law in statutory form, but there were aspects of the law that we sought to reform. One proposed reform related to provocation. Section 38 of the Draft Code offers this definition:

In England, the Coroners and Justice Act 2009 s.55(4) provides that “loss of control” can act as a partial defence to murder where “things done or said” by the victim “constituted circumstances of an extremely grave character” which “caused [the accused] to have a justifiable sense of being seriously wronged”.

The reference in the Scottish Draft Code to provocation being based on “acts or words or both” is not qualified in this way, but the “ordinary person” test in s.38(3)(b) (“an ordinary person, thus provoked, would have been likely to react in the same way” as the accused reacted) is intended to achieve the same result. Section 38 has a subjective requirement (the accused must have lost self-control), and an objective one (had an ordinary person been provoked in the same way, s/he too would have been likely to react as the accused did).

The ordinary person is used as the standard here since the hypothetical “reasonable person,” would not kill another person, no matter how provoked. However, the definition of the ordinary person in the Draft Code is wider than the current common law approach, since it allows consideration to be given to characteristics peculiar to the accused (for example, physical disabilities, ethnic origin and other traits), but not shortness of temper. The behaviours that may be considered as provocative provided by the Draft Code are also wider than those that are currently recognised by the law.

Unlike their English counterparts, they would allow for the possibility that sexual infidelity could amount to provocation. This reflects the view that the crime of murder ought to be reserved for the most heinous of killings, and the belief that those who kill having lost their self-control in highly provoking circumstances merit some degree of mitigation in sentencing.

Whether one believes that the current definition of provocation is too broad, or too narrow, Mr Ross is right to suggest that Scottish lawyers should engage in the debate to help inform the commission’s views.

Professor Pamela R. Ferguson
Professor of Scots law, School of Law
University of Dundee