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Title: Shifting grounds of criminal liability : justification and excuse in the theory of provocation
Author: Mousourakis, George
Awarding Body: University of Edinburgh
Current Institution: University of Edinburgh
Date of Award: 1991
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This thesis examines the fundamental distinction between justification and excuse in the theory of criminal law as it figures in relation to the partial defence of provocation. It is argued that, by contrast with German and other Continental criminal law systems, the distinction between justification and excuse has not been given enough weight in the development of Anglo-American criminal law. Although much attention has been paid to principles of legislation and problems of procedural justice and punishment, substantive issues concerning the grounds of criminal responsibility - such as those of justification and excuse - remained largely untouched. In recent years, however, there has been a revival of interest in justification and excuse in Anglo-American criminal jurisprudence. The governing task of the present work is to explore the implications of this approach in depth, arguing that the defence of provocation provides a particularly interesting site because of its potential interpretation as either justification- or excuse-based. The analysis focuses, in particular, on the defence of provocation as it operates in English law, although it includes references to other legal systems. The distinction between justification and excuse is crucial in tracking down the rationale of various pleas aimed at debarring or curtailing criminal liability. In this respect, claims of justification dispute the unlawful character of an act which nominally violates the law. Claims of excuse do not challenge the unlawfulness of the act - rather, they presuppose an unlawful act - but call in question the blameworthiness of the actor for having committed the wrongful act. Nevertheless, attempts at a clear-cut classification of criminal defences as excuses or justifications run up against serious difficulties. These difficulties have much to do with the fact that elements of both justification and excuse often appear to intersect in the same criminal defence, something particularly noticeable in the defence of provocation. Provocation, when pleaded as a partial defence to murder in English law, does not lead to complete acquittal but to the reduction of the crime to the lower criminal category of voluntary manslaughter. Besides its position as a partial defence to murder, provocation may also be pleaded as a factor in the mitigation of sentence as regards criminal offences other than murder. Conceptually the defence rests on two interrelated elements, namely, the wrongful act of provocation and the loss of self-control. On the assumption that the former element pertains to justification whereas the latter to excuse, the rationale of the defence seems difficult to locate. Following a delineation of the doctrine of provocation in English law, the thesis explores the way provocation can be conceptualised as a partial justification or as a partial excuse and examines the implications of either approach in a number of related issues. These issues include the 'reasonable man' test, the rule of proportionality, provocation and mistake of fact, the distinction between murder and voluntary manslaughter, the relation between provocation and excessive self-defence, cumulative provocation. Although these issues are examined in the doctrinal context of provocation, the arguments put forward in the thesis outline the contours of a general theory of criminal responsibility.
Supervisor: Not available Sponsor: Not available
Qualification Name: Thesis (Ph.D.) Qualification Level: Doctoral
EThOS ID:  DOI: Not available