Introduction

Provocation was, and loss of control is, a partial defence reducing murder to manslaughter. As David Ormerod’s comment in the most recent edition of Smith and Hogan’s Criminal Law suggests, interpreting the law of provocation, as it then was, proved challenging for the higher courts of England and Wales. A string of appeals in the early nineties saw the partial defence to murder expand to include a broader range of cases. These led to decisions in the House of Lords and the Privy Council revealing judicial unease about the law’s trajectory, and conflict among the judges. The matter culminated in the broad decision of the House of Lords in Morgan Smith (2000) on a three to two majority, and then the narrower Privy Council decision in Holley v. Attorney General for Jersey (2005). The latter took up the position of the minority in Morgan Smith, and was adopted by the Court of Appeal in preference to the decision in Morgan Smith that it ought in principle to have followed (James and Karimi (2006)). Such judicial manoeuvring bespoke a significant problem in the law that could not be easily resolved. It is a problem that, we shall see, has its foundations in ethical questions rooted in the law’s modern history.