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Criminal Law Defences Provocation Notes

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Paul says that it's a complete and total mess.
Only common law jurisdiction that runs it the way we do.Where there is a sudden contemporary loss of control, and you kill someone as a response.
- When you are provoked.
- Often raised after self-defence fails.

• Reflects edieval times - a man would come home sleeping w/ wife - his property - and he was absolutely entitled - almost REQUIRED to kill that person

• 'honour'

• 45% of homicide killings committed by someone with a temper. Meaning, provocation could technically be raised in almost half of killings.

• Should it be subjective or objective? Should we just consider whether the reasonable person would have acted out in that way OR - should we consider whether that person genuinely lost control in the circumstance?

• A lot more difficult to pass the objective test as a reasonable person

• But everyone has a different tipping point and be apt to completely different things. So,
applying the objective test - would a reasonable person did it - is unfair to the Accused.

• How can someone behave reasonably if they genuinely lost control?
➢ Would that not be the role of evidence though in applying a subjective test? Onus on the defence to prove that they acted reasonably? That's a shift in burden of proof?

• The subjective test is favouring the A, but may not be protecting the public because it is uncertain and unclear, and may be seen to permit people acting out.

• However, the objective test kind of defeats the whole subject of provocation as everyone is different.

• Neither test makes sense -Common law defence
No provocation act in Ireland
(there should be)
It only is a partial-defence, and reduces murder to manslaughter

Manslaughter characteristics

Can be suspended, to life. 0-life.
In difference to murder - there is only one sentence - life. It exists until the day you die.
You can be released on license, however if you are caught you're straight bacm in to finish it
- it never runs out.


They both envisage immediacy

The more time which elapses, the less likely you are to be successful as raising it as a defence.

TemporarinessIf its not temporary, psychiatric defences would be more appropriate
Provocation is immediate and short-lived.

Bedder v DPP 1954 England
A was sexually impotent. Attempted to have sex w a prostitute and was unable - the prostitute,
upon seeing his impairment, kicked him. He then stabbed her with a knife and killed her. The question on appeal - was how provocation had been left to the jury, as he wished to agrue that it should be purely subjective test - I genuinely had a sudden and temporary loss of control.
The courts applied a reasonable man test, and inevitable the jury said that his conduct was not justified. The unfairness with regards to innocence is obvious. He was mentally innocent. The judge said no - the jury could not consider his physical impairment - only whether a reasonable person would fatally stab someone for kicking them and laughing at them.

Objective test applied

Courts started to realise this. - it's the reasonable person who has the same physical impairments as the accused. This is always entirely hypothetical though, and is a mish-mash test between the reasonable person and a hypothetical.

Dpp v Camplin 1978 15-year-old killed a middle-aged man who made an advance on him, the succeeded on forcing himself upon him, and then laughed at him. He was charged w murder.
Test: would a 15-year-old in that situation have a loss of control, suddenly and temporarily.

Subjective test

Then becomes the question of what characteristics you attach to the hypothetical reasonable man.
Life history does not apply. Only physical and ethnic characteristics applied in England.
This is arbitrary - you cannot decide to take some things into account and exclude others.
It's a subjective test which excludes some things?

AG v Jersey v Holley 2005
Man and women having a row and they were both very intoxicated. He had 11 cans and 3 pints. She was also drunk. They had some sort of relationship, she entered a fight and said he just had sex with another man. He said that at that time he picked up an axe to go and chop some firewood. When he did pick up the axe, she fatally said 'you would not dare'.
Charged w murder and raised provocation - her saying I've just slept with another man. ? would it not have been you wouldn't dare? He said that his alcoholism should be taken into account in determining reasonableness.The reasonable man may have the physical characteristics of the accused, but not other ones
The reasonable man is not an alcoholic.

MacEoin 1978
A had somewhere between 14 and 20 pints and goes back to a dwelling which he shares with another person - who also appeared to be drunk. He said sometime during the night, the deceased tried to kick him out and came towards him and said, 'you're going now'. The A said he sat up in bed,
and claimed that he was the deceased pick up a hammer. There is a struggle and the hammer falls to the ground - and the A grabbed the hammer and hit the deceased in the head. The deceased falls to the floor, stunned. The A then strikes him a few more blows on the head and kills him. Probably would've run self-defence, but he had already immobilised him when he struck the fatal blows. (lost control is more likely to be successful). He relies on provocation instead. He said the fatal blows were in a state of sudden and temporary loss of control.
Do we have an objective or subjective test?
SC:The objective test in England does not make any sense - the whole point of provocation is on the issue of human frailty.

If the answer is yes,

then the matter is over - they are allowed to reach the defence if a jury believes that they were mentally innocent.
A hot-headed man might react to something that a relaxed man would not
Purely subjective test.

Then they ruined this test by confusing the law with a test applying proportionality.The force you use must be proportionate to the provoking act.
That is not subjective.
Proportionality is concerned with reasonableness.
Back to reasonable man.

Noonan 1998
Murder conviction quashed because the judge reads out MacEoin
CAMacEoin test is confusingBy saying the force must bear a reasonable relation to the act, is asking what a reasonable man would do - which brings us back to objectivity

When consulting a jury - that sentence of MacEoin should be left out.

So its completely subjective - but considering genuinely is laced up with credibility and lies. When deciding what someone has done was justified in their eyes or not, reasonableness comes into it when deciding if the accused is telling the truth. Once you BELIEVE the accused, that they had a sudden and temporary loss of control - the defence operates because you're then excluded from considering reasonable man.

O'Mahony 1998
One of the only properly explained cases, and a very controversial case. > firstly, people think irish juries are too soft and it is too easy to raise provocation. Crimes of passion introduce sympathetic views in Ireland. Often the only witness is the accused - very easy to fabricate what the deceased did to provoke. The attacker gets the right to history.
Here, a woman is killed. A said just before they killed her, she said she was going to accuse him of rape - which provoked him into a frenzy of lost control.
He was convicted - jury did not accept it as a fact - jury simply did not believe the explanation.
CA:Although MacEoin was cited, the judge made the defence clear as he said it was an exception.

Bambrick 1999
CAConviction quashed as MacEoin as read and this confused the jury.

If he had read out the first part, it'd be fine.The A had a homosexual advance on them and killed the perpetrator. He pulled out 6 foot pole from ground and beat them to death. He said that there was a history of sexual assault and therefore he was justified as he was provoked.

Kelly 2000Quashed as MacEoin was read out.

Made some points on the defence generally though:-

If a person actually does lose control in a situation, how can there be any room for a proportionality test - there is no reasonable force involved - there is no control whatsoever.
The point is that the person is not thinking reasonably or rationally.
The defence pre-supposes that there is not a calculating mind at work.

Sudden and temporary loss of control so,

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