No provocation without responsibility: a reply to Mackay and Mitchell

Journal article

Responds to the argument for unifying the defences of provocation and diminished responsibility as put forward by R.D. Mackay and B.J. Mitchell in Crim. L.R. 2003, 745-759. Refers to the authors' earlier critique of the House of Lords judgment in R. v Smith (Morgan James) in Crim. L.R. 2001, 623-635 in which it was argued that there is a fundamental incompatibility between offering an excuse and denying responsibility for murder, and their cautioning in M.L.R. 2001, 64(6), 815-830 against making the same kind of legal allowance for every kind of human disadvantage. Counters three specific criticisms of the authors made by Mackay and Mitchell, namely: (1) the latters' assertion that provocation is in fact a partial responsibility plea, implying that the defendant was not fully responsible for his actions; (2) that the authors were "naive" in wanting to "deny a defendant the chance of avoiding a murder conviction with its mandatory penalty...merely because he or she has an interest in maintaining self respect"; and (3) that the authors "perpetuate an unfortunate attitude to the mentally disordered" by attributing a stigma to a diminished responsibility verdict.

Authors: Gardner, J; Macklem, T

• Publication status: Published
• Peer review status: Peer reviewed
• Publisher: Sweet and Maxwell
• Journal: Criminal Law Review
• Issue: MARCH
• Pages: 213-218
• Publication date: 2004-03-01
• ISSN: 0011-135X
• Language: English