#5807 - Defences Provocation - Irish Criminal Law

Provocation

R v Duffy (CA 1949)

Facts

• The accused had murdered her husband with a hatchet and hammer.

• In her defence she claimed that she had been provoked, in that her husband prevented her taking their child away after they had a fight.

Issue

• Provocation

Judgment (Lord Goddard)

• Provocation is an act or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not the master of their mind.

• In considering whether there has been provocation, two things are important – A) whether the accused has had time to gain control and let her emotions settle and B) whether the retaliation bears some sort of proper and reasonable relationship to the sort of provocation that has been given.

People v Kehoe (CCA 1991)

Facts

• The accused had met for drinks with a former lover, with whom he had had a child.

• Upon returning to her flat, the accused decided to look in on his son, and instead saw his former best friend, who he had been aware was in a relationship with his ex.

• The accused then murdered the other man with a knife.

Issue

• Provocation – Mere presence of another individual

Judgment (O'Flaherty J)

• Once the defence of provocation has been raised, the onus is on the prosecution to show that the accused was not subject to such provocation that he lost control of himself at the time of the crime.

• If the prosecution prove beyond reasonable doubt, that the force employed was disproportionate having regard to the provocation, then the defence fails.

Bedder v DPP (HoL 1954)

Facts

• The appellant, who was impotent, was jeered, hit and kicked by a prostitute with whom he was attempting to have sex.

• He then murdered her.

• He appealed on the basis that he was subject to provocation.

Issue

• Provocation – Whether standard is subjective or objective

Judgment

• The test of whether there had been provocation sufficient to reduce the homicide from murder to manslaughter, is whether a reasonable man subject to the provocation would have acted as the accused – such a man did not have to be notionally invested with the physical peculiarities of the accused.

• Lord Simonds LC

• Lord Porter

• Lord Goddard CJ

• Lord Tucker

• Lord Asquith of Bishopstone

R v Camplin (HoL 1978)

Facts

• The accused murdered an individual who had raped him in the past after being subject to taunts by him.

Issue

• Provocation – Subjective or objective test

Judgment

• Lord Diplock (concurring)

• The public policy that underlies the adoption of the reasonable man test for provocation is to prevent an accused relying on his own exceptional pugnacity or excitability as an excuse for loss of self-control.

• Under s. 3 of the Homicide Act 1957, the jury were entitled to take into account those factors, including the age and physical characteristics of the accused, which in their opinion would affect the gravity of taunts and insults addressed to him and the degree of self control to expected of him as a reasonable person.

• Lord Morris of Borth-y-Gest (concurring)

• Once there is evidence on which the jury can find that defence of provocation applies, it is for the jury to decide all questions of reasonableness having regard to the accused's situation.

• Lord Simon of Glaisdale (concurring)

• But for the Homicide Act 1957, the House should not overrule Bedder – the defence involves issues of public safety too complex to be satisfactorily dealt with by the courts.

• Lord Fraser of Tullybelton (concurring – agreed with Lord Diplock)

• Lord Scarman (concurring – agreed with Lord Diplock)

R v Morhall (HoL 1995)

Facts

• The accused stabbed the victim during a fight which took place after a day on which the deceased and others had persistently criticised the accused for his addiction to sniffing glue.

• The defendant pleaded provocation in respect of the taunts regarding glue sniffing.

Issue

• Provocation – Whether addiction relevant.

Judgment

• Lord Goff of Chieveley (concurring)

• For the purposes of s.3, the jury should have reference to a hypothetical person having the power of self-control of an ordinary person of the age and sex of the defendant but sharing such of the defendant's characteristics as they though might affect the gravity of the provocation.

• As the victim's taunts were directed towards the accused's addiction they were relevant.

• In an appropriate case it may be necessary to take into account factors which are not, strictly speaking, characteristics, e.g. the defendant's history or the circumstances he found himself in at the time.

• Being drunk at the time of the provocation should not be taken into account.

• Lord Browne-Wilkinson (concurring)

• Lord Slynn of Hadley (concurring)

• Lor Nicholls of Birkenhead (concurring)

• Lord Steyn (concurring)

Thiet Thuan v R (PC 1996)

Facts

• The accused was charged with murder.

• In his defence he claimed that he suffered from brain damage that caused him to respond to minor provocation by acting violently.

Issue

• Provocation – Subjective or objective standard

Judgment

• Lord Goff of Chieveley (concurring for the majority)

• The power of self-control is not one of those factors that is to be assessed subjectively.

• In the great majority of cases in which a characteristic of the accused is relevant to the gravity of the provocation towards him, the provocation will have been directed at that characteristic, although this need not always be the case.

• The use of factors other than those which increase the gravity of the provocation itself, based as it is on a judicial opinion on the interpretation of a different statute, is not the practice in England or Hong Kong.

• It may be open to a defendant to establish provocation in circumstances in which the act of the deceased, though relatively unprovocative in isolation, was the last of a series of acts which finally provoked the loss of self-control by the accused.

• Lord Steyn (dissenting)

• The compartmentalisation of factors to be looked at subjectively and objectively in provocation just leads to confusion and results in the conviction of people who are not morally culpable.

• The accused's mental capacity should be taken into account in ascertaining whether the defence has been made out.

R v Smith (Morgan) (HoL 2000)

Facts

• The defendant stabbed the victim during an argument over the defendant's alleged theft of the victim's carpentry tools.

• The defendant sought to rely on the defence of provocation and adduced psychiatric evidence to the effect that his self-control was less than that of a normal person.

Issue

• Provocation – Subjective or Objective

Judgment

• Lord Slynn of Hadley (concurring)

• The factors to be taken into account in determining whether the degree of self-control that would have been exercised by the defendant was that of a reasonable man with the defendant's characteristics include all the particular characteristics of the defendant.

• The issue for the jury to resolve is whether the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter.

• Thus, the depression of the accused was a characteristic that the jury were entitled to take into account.

• Lord Hoffman (concurring – agreed with Lords Slynn and Clyde)

• Lord Clyde (concurring – agreed with Lords Hoffman and Slynn)

• Lord Hobhouse of Woodborough (dissenting)

• On the construction of s.3 as laid down by authority, the defence of provocation applies where A) the defendant has been provoked to the extent that he loses his self-control, B) the gravity of the provocation must be such as to provoke a person of ordinary self-control into doing what the accused did.

• Lord Millett (dissenting)

• The defences of diminished responsibility and provocation overlap to an extent, but have different rationales – the former is based on the lessening of the accused's culpability, while the latter is based on the victim's share in the culpability.

• This requires that the accused's lack of self-control is attributable to something outside himself and only grave provocation merits extenuation.

• If one has regard to the ability of the accused to exercise self-control the test becomes entirely subjective, and the requirement that he be provoked into losing control becomes redundant.

• The reason why intoxication is irrelevant is because it goes to the level of self-control rather than the gravity of the provocation.

• In re Lord Steyn's examples in Thiet Tuan (battered wife, post natal depression, personality disorder) the first comes under provocation, while the next two come under diminished responsibility.

People v McEoin (CCA 1978)

Facts

• The accused was charged with murder and in his defence claimed that he had been provoked.

Issue

• Provocation – Objective or Subjective standard

Judgment (Kenny J)

• A defence of provocation may be established notwithstanding the fact that the accused intended to kill or cause serious injury – this is because the provocation is usually the cause of the intention.

• The reasonable man test is flawed because it isn't clear to what extent he should resemble the accused in his character or circumstances.

• In considering whether the offence has been established, a jury must have regard to the accused's temperament, character and circumstances and decide in light of those whether the acts of the deceased were such...