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Defences Provocation Notes

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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)


* 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

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