defense, murder, provocation, emotional breaking point, Linney v. The Queen, juries, anger
As a defence to a charge of murder, provocation is at once the most accessible and the most fascinatingly elusive of ideas. We are all familiar with the concept of an emotional breaking point, and we are generally prepared to recognize that a person pushed beyond that point may in certain circumstances kill his or her tormentor. Yet in law, an acceptable breaking point is very hard to define. As Dickson 3. (as he then was) said in Linney v. The Queen, "provocation, in the relevant sense, is a technical concept and not easy to apprehend" It is also, unfortunately, a concept that juries must wrestle with regularly, and for high stakes. Glanville Williams points out that in England half the intentional killings of adult males are committed in anger. And where those killings are found as a matter of law to have been provoked, the average sentence there is from three to nine years; where they are found to have been unprovoked, however, the sentence is life imprisonment.
Timothy Macklem, "Provocation and the Ordinary Person" (1987) 11:1 Dal LJ 126.