When assessing a case, it is important to consider any defences that may be relevant in the circumstances. Two important defences to keep in mind are self-defence and extreme provocation. However, there are four key differences between these defences.
- Self-defence can apply to any offence. The only exception to this is, if death occurs as a result of the accused defending their property or preventing criminal trespass. On the other hand, extreme provocation is only available for the offence of murder.
- If self-defence is proven, the accused will be acquitted of the charges. This means that self-defence is a full defence that will allow the accused to walk free. Provocation is a partial defence to murder. If a judge or jury would have found a person to be guilty of murder but finds that the accused acted out of extreme provocation, the accused will be guilty of manslaughter.
- There are a number of situations in which the aggressor’s actions may give rise to either of the defences, however, the application of self-defence or provocation depends on the accused’s mental state. For self-defence, the accused must reasonably believe that their conduct was necessary to defend themselves or someone else, to prevent unlawful deprivation of liberty, protect property or criminal trespass. For extreme provocation to apply, the actions of the aggressor (or in this case the deceased) must have caused the accused to lose self-control and it must be an action that would have caused the ordinary person to lose self-control.
- Extreme provocation is a defence that is only available when the conduct of the provoker is a serious indictable offence. A serious indictable offence is one that carries a maximum penalty of 5 years’ imprisonment or more. Self-defence does not have a similar requirement, but the accused’s actions must be a reasonable response to the circumstances. If the accused did believe that their actions were necessary to defend themselves or prevent unlawful deprivation of liberty but it was not a reasonable response in the circumstances, a partial defence of excessive self-defence may be available for the offence of murder. This would result in a finding of manslaughter instead of murder. This is different from provocation because the accused believed their actions were necessary, rather than losing self-control.
For more information on each of these defences, see our webpages on self-defence and provocation.
Photo by NEOSiAM 2020