The Ordinary Person in Provocation Law: Is the Objective Standard Objective?

Abstract

In this paper, an assessment is made of the concept of the ‘ordinary person’ in provocation through the use of a literature review and an empirical study. The construction of this legal benchmark appears to be affected by both the dominant social attitudes and personal experiences, although expert evidence is invaluable in providing an interpretative social schema by which to view a defendant’s actions. Though calls have been made to abolish provocation as a defence to a criminal charge, a new test is proposed that asks whether the reasonable person, possessing all the defendant’s characteristics and having had all the defendant’s experiences, could have done the criminal act the defendant did in the circumstances. This reformulated model of the ‘reasonable defendant’ should cause less confusion amongst either the jury or judiciary in its application, be more conducive to the admission of expert testimony, and its flexibility will contribute to the attainment of substantive equality before the law in a modern heterogeneous society.

Keywords: provocation, reasonable person