Some perspectives on provocation and domestic killing

• Author: Clifford Hall
• Position: M.A. (Cantab), LL.M. (Wales), Reader in English Law, University of Buckingham
• Pages: 23-37

SOME PERSPECTIVES ON PROVOCATION

AND DOMESTIC KILLING

CLIFFORD HALL*

We all know that legal concepts are defeasible. They are not

fixed, one to one, like the injunctions of

the

decalogue. They are of

open texture. They serve for a time, and if experience shows them

to be unsatisfactory or logic demonstrates them to be predicated upon

fallacies, they are refashioned, reformulated, even jettisoned

altogether. Think of what, in England, is referred to as oblique

intention in a murder case. For 10 years after the decision in Hyam1

trial judges directed juries, as Ackner J. had done in that case, that

1

under certain conditions foresight could be equated with intention -

a self-evident fallacy. But for 10 years men and women were held

guilty of murder who were really only guilty of manslaughter.

Ackner J.'s contribution to this error was critical. But so well

thought of was it that in no time he was promoted to the House of

Lords.

The late Lord Diplock was a member of the team who, in

the House of Lords, had endorsed Ackner J.'s direction. Think of

his contribution to this and also to recklessness. For it was he who,

in Caldwell,2 and armed with the

Oxford

Dictionary,

declared that

recklessness was not just what the accused foresaw but also what the

ordinary prudent man would have foreseen, the accused himself

*M.A. (Cantab), LL.M. (Wales), Reader in English Law, University of

Buckingham. The substance of this paper was first delivered in a lecture to the

Faculty of Law, University of the West Indies, Cave Hill and St. Augustine

Campuses, April 1992.

1 [1975] A.C. 55. The error was rectified, of course, in Maloney [1985] A.C.

905 which was itself reinforced in Hancock and Shankland [1986] A*.C. 455 (exposing

the fallacy in the "model direction" in Maloney) and Nedrick [1986] 3 All E.R. 1

(C.A.).

2 [1982] A.C. 341.