Criminal law reform and the progressives—the case of provocation

Abstract

ABSTRACT In this article, I consider the Australian criminal law reform campaign to abolish the partial defence of provocation. I argue that, while abolitionists were motivated by an admirable concern for equality, their proposal—which has now been adopted in many Australian jurisdictions—inadequately balanced the competing autonomy claims of victims on one hand and the accused on the other. Like the mid-twentieth-century English higher judiciary, abolitionists’ hostility to the partial defence was too unqualified—and they placed too little emphasis on the interests of accused persons. That said, they were right to argue that liberal provocation law, by being too solicitous of the welfare of certain accused, had had deeply illiberal effects. If the criminal law is to be truly progressive, it must do what it can to achieve fairness for disfavoured minorities—including those accused of serious offending.