Clause 41 replaces the existing partial defence of provocation with a new partial defence in circumstances where the killing resulted from a loss of self control. Under the current law, where there is evidence that a person has been provoked to lose their self control, the judge must leave the issue of provocation to the jury even if in circumstances where it would unreasonable for the jury to find the defence made out. The current law does not serve the interests of justice because the need to put the defence to the jury in these circumstances increases the likelihood that an unmeritorious claim may succeed. The Law Commission recommended that the law be changed so that the judge should not be required to leave the partial defence to the jury unless there was evidence on which a reasonable jury properly directed could conclude that it might apply.

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