Descent into Murder: Provocation's Stricture—The Prognosis for Women Who Kill Men Who Abuse Them

This article considers the ruling in Attorney-General for Jersey v Holley¹ and its impact on limiting the ambit of the defence of provocation by restoring to the reasonable person a normative capacity for self-control. In particular, the implications of this limitation on legal outcome in cases where women kill men who abuse them are explored. The inevitable demise of provocation as a defence, which follows from the ruling in Holley, is of particular concern as is the new framework for sentencing in convictions for murder² which in removing judicial discretion from the sentencing decision prohibits judges from tempering the harshness of the mandatory sentence. This new murder/sentencing regime will undoubtedly result in injustice, especially in those cases where battered women kill, which, although deserving of mitigation, nevertheless fail to satisfy the strictures of provocation's requirements post Holley, thereby resulting in an increase in convictions for murder. The Law Commission's report on Murder, Manslaughter and Infanticide³ recommends a new framework for murder and manslaughter, including a new definition of provocation and also a new direction in the murder sentencing framework. This area of the law is still far from fixed.