Murder is always a punishable criminal offense and is judged strictly. However, in some situations, a person may kill another individual unintentionally and, in this case, the act of killing is defined as manslaughter and is punished somewhat less strictly if at all.
To differentiate between intentional and unintentional types of homicide, the concepts of self-defense, provocation, and diminished responsibility are frequently used. However, in their turn, the three terms refer to disparate contexts in which manslaughter takes place. Thus, in the present paper, the legal requirements for and results of self-defense, provocation, and diminished responsibility will be discussed to detect the major differences among them.
Self-Defence
The concept of self-defense implies that one can use force against somebody who attacks and tries to kill him or her. Self-defense is considered to be “a special and complete defence to charges alleging illegal use of force (e.g. assault/murder).” In other words, if it is proved that a person killed another in the act of self-defense, they will be exempted from charges that are normally associated with murder.
However, requirements for self-defense in the Scots Criminal Law are very stringent. They include “imminent danger to the life or limb of the accused” and the necessity of using retaliation when dealing with the abovementioned threat to ensure own safety. The last requirement is no way of escape in the face of danger. An overview of HM Advocate v Doherty can allow understanding these requirements better.
When Doherty was attacked by another person with a hammer, a friend of his gave him a bayonet which the former utilized to kill the attacker. The court did not accept Doherty’s claim of using the bayonet as a means for self-defense mainly because he could escape the attack but preferred to stab the man instead and, for this reason, he was convicted of murder.
Overall, whereas Doherty indeed faced an immediate danger and his response to it could be viewed as proportionate to the threat, the fact that he could run away from the attack was enough for the judge to regard his response as criminal. However, it is valid to note that since Doherty was not an initiator of the attack and only reacted to it, he also could rely on the partial defense of provocation.
Provocation
As such, provocation means that a person kills another individual when triggered to do so and placed in an emotional state conducive to a homicide. It means that provocation “privileges homicidal fury” or, in other words, makes one think that he or she was seriously wronged. A person can be provided with the partial defense of provocation also when another made him or her made him believe in and fear of serious violence. Based on this, the major legal requirement for provocation is the loss of control as a result of another’s words or actions.
If a person proves in the court that he was provoked to kill somebody, they obtain a lesser verdict of manslaughter or culpable homicide. The latter is defined in the Scots Law as “an unlawful killing where the accused lacks intention to kill or such wicked recklessness” and are normally charged as second-degree murders.
Overall, when compared to self-defense, provocation may be viewed as its excessive form and a disproportionate response to immediate danger. However, unlike self-defense, it is much harder to identify circumstances in which the accused must be granted this form of partial defense. For example, in the case of Drury v HM Advocate, in which the accused killed his former partner because she started to date another man, the men’s rea approach was used by the judges.
To gain the partial defense, Drury had only to prove that he had no initial intention to kill his ex-girlfriend, that he was not reckless enough, and that the degree of his violence towards her was proportionate to the extent of provocation. Overall, like in the case with second-degree charges, provocation is identified primarily based on one’s intention to kills another person. Compared to the requirements for the evaluation of self-defense circumstances, the ones outlined in Drury v HM Advocate are more subjective and may lead to controversial results when deciding to lessen the fault of the accused.
Diminished Responsibility
The last type of partial defense, diminished responsibility, refers to an act of homicide that is performed as a result or in the context of an impaired mental state. Similar to manslaughter due to provocation, homicide with the proven diminished responsibility is viewed as second-degree murder. Similarly to provide one with a partial defense on the ground of diminished responsibility or “mental weakness,” it is essential to demonstrate that he or she did not have an intent to kill, did not premediate and calculate his or her malice.
HM Advocate v Savage was a key case in the definition of the concept of diminished responsibility which was linked by Lord Alness in his address to the jury to “a state of mind which is bordering on, though not amounting to, insanity.” This statement implies that when a person commits a homicide in an unsound state of mind, he or she can be accountable for his/her actions merely partially. At the same time, the state of intoxication and the presence of psychopathic disorders are excluded from the definition of diminished responsibility because the former is a voluntary induced state and the latter implies that the border with insanity is crossed.
Overall, the requirements for the diminished responsibility seem to be more objective than those for provocation. The former implies the administration of a test aimed to determine whether the accused was able to control their actions or not. However, it is valid to say that, like in the case with provocation, the plea for diminished responsibility may still be abused to lessen one’s verdict.
Conclusion
As the review of self-defense, provocation, and diminished responsibility revealed, they refer to different circumstances in which full or partial defense may be given to an accused who committed a homicide unintentionally. It is possible to conclude that the requirements for self-defense are the clearest among the discussed concepts, whereas the requirements for provocation seem to be the most subjective and controversial.
Unlike self-defense and diminished responsibility that can be verified through a careful evaluation of homicide events and psychiatric metrics, the evaluation of provocation implies the assessment of one’s emotional state in retrospective and subjective analysis of his or her response’s proportions to the provocation. Thus, there is a need to clarify the definition of provocation and its requirements in the Scots Law to reduce the risk of abuse.
Bibliography
Crime.Scot, ‘Self-Defence’, Crime.Scot, Edinburgh, Scotland, Crime.Scot, n.d., Web.
Maher, G., ‘The Most Heinous of all Crimes’: Reflections on the Structure of Homicide in Scots Law’, in J. Chalmers and F. Leverick (eds.), Essays in Criminal Law in Honour of Sir Gerald Gordon, Edinburgh, Scotland, Edinburgh Studies in Law, 2010, pp. 218-240.
McDiarmid, C., ‘Don’t Look Back in Anger: The Partial Defence of Provocation in Scots Criminal Law’, in J. Chalmers and F. Leverick (eds.), Essays in Criminal Law in Honour of Sir Gerald Gordon, Edinburgh, Scotland, Edinburgh Studies in Law, 2010, pp. 195-217.
Roth, L. and Blayden, L. ‘Provocation and self-defence in intimate partner and sexual advance homicides’, NSW Parliamentary Research Service, Sydney, NSW, Parliament of NSW, 2012, Web.
The Scottish Law Commission, ‘Partial Defences to Murder’, Lawcom.gov.uk, London, UK, The Law Commission, 2004, Web.