Fenning v HM Advocate 1985 SCCR
Citation: Fenning v HM Advocate 1985 SCCR
Rule of thumb: What is the difference between provocation and self defence? Provocation is a plea in mitigation to reduce punishment; self-defence is actually a special defence as not guilty to committing a crime.
Judgment:
“As was pointed out by Lord Justice General Cooper in the case of Crawford v HM Advocate a very clear distinction must be drawn between the two, the one being a ‘special defence’ and the other a plea – in essence a plea in mitigation not of sentence, but of a degree of the accused’s guilt. I refer to, without repeating, the passage in Lord Cooper’s judgment quoted by the Advocate Depute. ……. The issue of self defence and the issue of ‘provocation’ are not only entirely different in substance and effect, but their solution is dependent upon quite distinct and distinguishable factual circumstances, and are not matters of concurrent consideration.” Lord Cameron page 223
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