__________
CONSULTATION
PAPER
ON
HOMICIDE:
THE PLEA OF PROVOCATION
__________
(LRC CP
27-2003)
IRELAND
The Law
Reform Commission
35-39
Shelbourne Road, Ballsbridge, Dublin 4
|
© Copyright |
The Law Reform Commission 2003 |
|
First Published |
October 2003 |
ISSN 1393 –
3140
THE LAW
REFORM COMMISSION
Background
The Law
Reform Commission is an independent statutory body whose main aim is to keep
the law under review and to make practical proposals for its reform. It
was established on 20 October 1975, pursuant to section 3 of the Law Reform
Commission Act 1975.
The
Commission’s Second Programme for Law Reform, prepared in consultation with the
Attorney General, was approved by the Government and copies were laid before
both Houses of the Oireachtas in December 2000. The Commission also works
on matters which are referred to it on occasion by the Attorney General under
the terms of the 1975 Act.
To date,
the Commission has published sixty-nine Reports containing proposals for reform
of the law; eleven Working Papers; twenty-six Consultation Papers; a number of
specialised Papers for limited circulation; An Examination of the Law of Bail;
and twenty-three Annual Reports in accordance with section 6 of the 1975
Act. A full list of its publications is contained in the Appendix to this
Consultation Paper.
Membership
The Law
Reform Commission consists of a President, one full-time Commissioner and three
part-time Commissioners. The Commissioners at present are:
President
The Hon Mr Justice
Declan Budd
High Court
Full-Time
Commissioner Patricia T Rickard-Clarke
Solicitor
Part-Time
Commissioner Dr Hilary A Delany, Barrister-at-Law
Senior Lecturer in Law, Head of Law School, Trinity College Dublin
Professor Finbarr McAuley
Jean Monnet Professor of European Criminal Justice
University College Dublin
Marian Shanley
Solicitor
Secretary
John Quirke
Research Staff
Director of
Research
Raymond Byrne BCL, LLM, Barrister-at-Law
Legal
Researchers
Deirdre Ahern LLB,
LLM (Cantab), Solicitor
Simon Barr LLB (Hons), BSc
Patricia Brazil LLB, Barrister-at-Law
Ronan Flanagan LLB, LLM (Cantab)
Glen Gibbons BA, LLB (NUI), LLM (Cantab)
Claire Hamilton LLB (Ling Franc), Barrister-at-Law
Darren Lehane
BCL, LLM (NUI)
Trevor Redmond LLB, MPhil, LLM (Cantab)
Eadaoin Rock LLB, LLM (Cantab)
Jennifer Schweppe BCL (Euro)
Administration Staff
Project
Manager
Pearse Rayel
Legal Information Manager
Marina Greer BA, H Dip LIS
Cataloguer
Eithne Boland BA (Hons) H Dip Ed, H Dip LIS
Executive
Officer
Denis McKenna
Private
Secretary
to the
President
Liam Dargan
Clerical Officers
Alan Bonny
Debbie Murray
Principal Researcher on this Consultation Paper
Professor J
Paul McCutcheon BCL, LLM (NUI)
Other
Legal Researchers on this Consultation Paper
Simon Barr
LLB (Hons), BSc
Olwyn
Burke BA, LLB, LLM (Edin), Barrister-at-Law
Contact
Details
Further
information can be obtained from:
The
Secretary
The
Law Reform Commission
35-39
Shelbourne Road
Ballsbridge
Dublin
4
Telephone
(01) 637 7600
Fax
No
(01) 637 7601
Email
info@lawreform.ie
Website
www.lawreform.ie
TABLE OF
CONTENTS
Chapter 1.... HISTORICAL Overview... 3
B............ The
Early Development of Provocation
C............ Recognised Categories of
Provocation
D............ From
Mawgridge to Welsh
E............ Provocation
and Intention
Chapter 2.... Justification versus Excuse
B............ The
Basic Distinction
C............ Academic
Opinion
D............ The
Distinction in Practice
E............ Summary
and Conclusions
Chapter 3.... The Modern Law IN England AND wales
A............ The “Reasonable Man”
C............ The
Homicide Act 1957
D............ Broadening
the Law
E............ Moves
Towards a Subjective Test
Chapter 4.... The Modern Law IN Ireland
A............ The
Birth of the Subjective Test
B............ Attempts
to Clarify People (DPP) v MacEoin
C............ The
People (DPP) v Davis:
A
Reappraisal of the Subjective Test
D............ Elements
of the Defence
Chapter 5.... Comparative SURVEY
A............ Governing
Provisions
B............ Approaches
– Objective or Subjective?
C............ The Objective Approach in a Multicultural
Society
D............ The Wrongful Act Requirement
E............ Words
as Provocation
F............ Sources of Provocation
G............ Restrictions
on the Defence
H............ Extreme
Emotional Disturbance
Chapter 6.... PROVOCATION and public policy
B............ The
Competing Tests
C............ Cumulative
Provocation, Immediacy and Domestic Homicide
D............ Provocation
and Mental Disorder
E............ The
Nature and Sources of Provocative Conduct
F............ Provocation
and Intoxication
G............ Should
the Defence of Provocation be Retained?
Chapter 7.... OPtions for Reform
B............ Abolition
of the Defence
C............ A
Justification-Based Defence of Provocation
D............ An
Excused-Based Defence of Provocation
E............ A
General Excuse-Based Defence
F............ Provisional
Recommendations
APPENDIX...... LIST OF LAW REFORM COMMISSION PUBLICATIONS
1.
This Consultation Paper
addresses the law relating to the partial defence of provocation. It is
the third in a proposed series of papers which is intended to provide a
comprehensive review, with the aim of eventual codification, of the law on
homicide in this jurisdiction and follows on from the Commission’s Consultation
Papers on Homicide: The Mental Element in Murder[1]
and Corporate Killing.[2] The law of homicide and the law
relating to the partial defence of provocation are matters included in the
Commission’s Second Programme for Law Reform, approved by the Government in
2000.
2.
This Paper endeavours
to deal with the unsatisfactory state of the current law on provocation.
At common law, the plea of provocation catered for killings done in response to
untoward behaviour by the deceased. Its focus was on the standard of
conduct that could fairly be expected of accused persons in such circumstances;
whereas in Irish law the plea has been metamorphosed into the factual issue of
whether or not the accused lost control. The Paper suggests that there
should be a rapprochement between the current law on the subject and the
original basis of the plea.
3.
The Paper is divided
into seven chapters. Chapter 1 traces the historical evolution of the
defence from its emergence in the early modern division of felonious homicide
into murder and manslaughter to the appearance of the “reasonable man”
criterion in the nineteenth century.
4.
Chapter 2 discusses
whether provocation should be treated as a partial justification or partial excuse,
and considers the implications of each theory for the operation of the defence.
5.
Chapter 3 analyses the
modern law relating to provocation in England and Wales, including the
emergence of the concept of the “reasonable man”, the changes wrought by the Homicide
Act 1957 and the increasing dominance of the subjective test in that
jurisdiction.
6.
Chapter 4 reviews the
modern law in Ireland, including the Court of Criminal Appeal’s
decision in The People (DPP) v MacEoin[3]
and the subsequent applications and interpretations of the tests set out in
that case.
7.
Chapter 5 provides a
comparative survey of the law of provocation in the main common law
jurisdictions, including Canada, Australia, New Zealand, South Africa and the
United States of America.
8.
Chapter 6 considers the
public policy factors that might be relevant to any reform of the law in this
area and examines the contrasting rationales underlying the justification and
excuse approaches outlined in Chapter 2.
9.
Finally, Chapter 7
evaluates a number of options for reform of the defence and proposes a draft
provision which encapsulates the provisional recommendations of the Commission.
10.
This Paper is intended
to form the basis for discussion and, accordingly, the recommendations
contained herein are provisional only. The Commission will make its final
recommendations on this topic following further consideration of the issues and
consultation with interested parties. Submissions on the provisional
recommendations included in this Paper are welcome. To enable the
Commission to proceed to the preparation of its Report report,
those who wish to do so are requested to make their submissions in writing to
the Commission by 31 January 2004.
Chapter 1
HISTORICAL Overview[4]
A
Introduction
1.01
The emergence of the
defence of provocation in these islands is bound up with the division of
felonious homicide into murder and manslaughter. The benefit of clergy
exemption to a charge of murder, which was devised in medieval times so that
defendants could escape liability under the secular law and the consequent
imposition of the death penalty for the unlawful killing of another, was the
catalyst in the emergence of the distinction between murder and
manslaughter.
1.02
The exemption was
claimed by accused persons who successfully demonstrated their status as
members of the clergy. There were no fixed rules as to the criteria
necessary to prove clerical status. Unsurprisingly, the exemption was
widely mistreated by defendants who successfully convinced the relevant court
that they were members of the clergy by displaying an ability to read and quote
passages from religious texts. Eventual recognition by Parliament of the
systematic abuse of the system brought with it a desire, first, to limit the
scope of benefit of clergy and, later, to abolish the exemption altogether on
the grounds that it undermined the secular law.[5]
1.03
In 1512 benefit of
clergy was removed by statute from homicides carried out with malice
aforethought.[6] At that time, malice aforethought
or “malice prepensed” simply meant planned or
premeditated killing.[7] The denial of benefit of clergy in
respect of homicides carried out with malice aforethought had the effect of
creating a distinction between that type of killing, which became known as
murder, and killings lacking malice aforethought, which became known as manslaughter.[8]
1.04
By the late sixteenth
century, “an ingenious … legal fiction had been devised to rationalize and
systematize”[9] the policy of treating cases of intentional
killing as murder despite the absence of literal premeditation. This was
the doctrine of implied malice. The aim of the doctrine was to give the
mental element in murder a wider ambit in order to enable the law to treat
brutal, though unpremeditated, killings as murder rather than manslaughter.[10]
The doctrine operated by presuming or implying[11]
the requisite malice for murder from the surrounding circumstances of a brutal killing,
where the accused was considered to be “bent upon mischief”[12]
despite the lack of evidence that there was such malice. The doctrine
permitted an expansion of the net of criminal liability for unlawful killings
carried out without malice aforethought, in the early modern sense of
premeditation, where they were considered to be as morally blameworthy as
premeditated killings.[13]
1.05
One important category
of killings was excluded from the doctrine of implied malice. Killings
carried out in “hot blood” or anger could provide a valid rebuttal of the
presumption of malice under the doctrine. To rebut the presumption, the
accused had to show that the killing was caused by some provocation on the part
of the deceased and not as a result of any malice aforethought or premeditation
on his part. In this way, the doctrine of implied malice laid the
foundation stone for the law of provocation.[14]
1.06
According to a statute
passed in 1604, killings done “on the sudden”, which were also known as
“chance-medley” killings, were considered to lack the requisite malice
aforethought for murder and therefore did not attract the mandatory death
penalty.[15] These
slayings were instead considered to be passionate killings, carried out in
“heated blood” and without premeditation. Coke defined “chance-medley” as
follows: “[h]omicide is called chance-medley …
for that it is done by chance (without premeditation) upon a sudden brawle, shuffling, or contention.”[16]
This notion of heated-blood manslaughter expressed the more merciful approach
taken by the law in relation to less heinous killings. By the seventeenth
century, the general position appears to have been that all hot-blooded
killings (chance-medley) were treated as manslaughter, rather than murder,
regardless of whether the provocation was considered grave or not.
1.07
That position changed,
however, when the distinction between killing with malice aforethought (murder)
and killing by chance-medley (manslaughter) evolved into a further bifurcation
between provoked and unprovoked killings.[17]
This development evolved from the recognition that the category of
chance-medley did not differentiate between situations where the defendant was
an innocent victim of a sudden outburst of violence and situations where he was
responsible for starting the męlée in the first place. The accused
in the former category thus came to be regarded as less morally blameworthy
than the accused in the latter.
B
The Early Development of Provocation
1.08
Although provocation
was firmly established as a partial defence by the beginning of the seventeenth
century, it is clear from the contemporary institutional writers that the plea
was already heavily circumscribed. By that time, the evident concern of
the law was to identify the boundary between intentional and unintentional
killings. As the limits placed on the plea of provocation corresponded
with the line drawn between those categories, the commentators’ consideration
of provocation overlapped considerably with their treatment of the law on
malice. Nevertheless, several themes that were to shape the subsequent
development of the law are discernible in their writings.
1.09
In particular, the
institutional writers were at pains to stress that certain forms of killing
were so excessive (or, in the modern idiom, “disproportionate”) that they must
be presumed to have been actuated by malice rather than provocation.
Their commentaries also reveal an important distinction between trivial and
serious provocation, and suggest that the plea had been confined to the latter:
it was made clear that “slight” provocation was insufficient. Moreover,
it was accepted that, as with the category of chance-medley homicide, provoked
killing occurred “on the sudden”.
1.10
As to the issue of
proportionality, Sir Matthew Hale (whose Historia
Placitorum Coronae was completed in 1676 but not
published until 1736) observed that in some cases where an accused had responded
to provocative conduct the means adopted might have been such that the killing
should be presumed to have been intentional. He illustrated the point
thus:
“He that wilfully gives poison to another, that
hath provoked him or not, is guilty of wilful murder, the reason is, because it
is an act of deliberation odious in law, and presumes malice.”[18]
1.11
He also observed that
malice might be presumed in circumstances where the accused had used a lethal
weapon, such as a sword or pistol.[19]
1.12
On the question of the
sufficiency of provocation, Hale endeavoured to pick out the dividing line
between provocative conduct that would not merit a verdict of manslaughter, on
the one hand, and that which would warrant such mitigation, on the other.
By way of delineating the former category, he cited several examples of
circumstances in which the defence would not succeed: viz,
the service of a subpoena on the accused by the deceased;[20]
the making of an insolent facial gesture by the deceased;[21]
and the taking of a wall by the deceased.[22]
He also stated that the preponderant contemporary view was that “bare
words of fighting, disdain, or contumely would not of themselves make such a
provocation, as to lessen the crime to manslaughter”;[23]
and, in similar vein, that the “chiding” of a wife will not be considered
sufficient provocation.[24]
1.13
Hale provided fewer
examples of cases where a plea of provocation would be successful.
However, he noted that:
“…if B had justled A
this justling had been a provocation, and would have
made it manslaughter and so it would be, if A riding on the road, B had whipt the horse of A out of the track, and then A had
alighted, and kild B it had been manslaughter.”[25]
1.14
He also distinguished
“words of menace of bodily harm”[26] from
“fighting words”, stressing that the former, but not the latter, would amount
to provocation.
1.15
Writing in 1716, a
decade after the pivotal decision in R v Mawgridge[27]
(considered in the next section) Serjeant Hawkins
expanded on Hale’s treatment. In Hawkins’ account, provocation is allied
to cases of sudden quarrels and there is an obvious concern that the deceased
should have been given an opportunity to defend himself if the plea is to
succeed. Hawkins also accepted that a reaction to “slight” provocation is
consistent with an intention to kill:
“And it hath been adjudged, that even upon a
sudden quarrel, if a man be so far provoked by any bare words or gestures of
another, as to make him push at him with a sword, or to strike at him with any
other such weapon as manifestly endangers his life before the other’s sword is
drawn, and thereupon a fight ensue, and he who made such assault kill the
other, he is guilty of murder; because by assaulting the other in such an
outrageous manner, without giving him an opportunity to defend himself, he showed
that he intended not to fight with him but to kill him, which violent revenge
is no more excused by such a slight provocation, than if there had been none at
all.”[28]
1.16
Hawkins added to Hale’s
catalogue of cases that do not amount to provocation as follows:
“Also it seems to be agreed that no breach of a
man’s word or promise, no trespass either to land or goods, no affront by bare
words or gestures, however false or malicious it may be, and aggravated by the
most provoking circumstances, will excuse him from being guilty of murder, who
is so far transported thereby, as immediately to attack the person who offends
him, in such a manner as manifestly endangers his life, without giving him time
to put himself upon his guard, if he kills him in pursuance of such an assault,
whether the person slain did at all fight in his defence or not; for so base
and cruel a revenge cannot have too severe a construction.”[29]
1.17
However, these remarks
were immediately qualified by the observation that if the accused’s response
was moderate, or the deceased had been afforded an opportunity to defend
himself (or herself), the killing would be manslaughter.[30]
Moreover, Hawkins also identified the type of defendant who would get the
benefit of the plea:
“Neither can he be thought to be guilty of a
greater crime who finding a man in bed with his wife, or being actually struck
by him, or pulled by the nose, or fillipped upon the
forehead, immediately kills him; or who happens to kill another in a contention
for the wall….”[31]
1.18
Although Hale was
silent on the third issue – the element of suddenness – its importance was
stressed by Hawkins. Hence that writer’s frequent reference to “sudden
provocation” and his bracketing together of provocation cases with sudden
quarrels. Thus, in Hawkins’ view, an accused who is “master of his temper”[32]
at the time of the killing is guilty of murder. Contrariwise, he noted
that if two individuals “fall out upon a sudden” and one kills the other the
former is guilty of manslaughter because he acted “in the heat of blood”;[33]
mitigation in these circumstances was an “indulgence [which] is shewn to the frailties of human nature”.[34]
The significance of the element of suddenness is that it came to be
perceived as an indication that the accused acted in hot blood or, in other
words, that he or she had lost self-control. As Sir Michael Foster would
later remark: “if there is sufficient time for passion to subside, and for
reason to interpose, [the] homicide will be murder.”[35]
Killing in those circumstances is taken to be a calculated act of revenge
and “no man under the protection of the law is to be the avenger of his own
wrongs.”[36]
C
Recognised Categories of Provocation
1.19
The seventeenth and
eighteenth centuries witnessed the emergence of distinct categories of provocation
which operated to reduce murder to manslaughter. Four categories were
succinctly set out by Holt LCJ in R v Mawgridge:[37]
(i)
a grossly insulting
assault
(ii)
seeing a friend
attacked
(iii) seeing an Englishman unlawfully
deprived of liberty
(iv) catching someone in the act of
adultery with one’s wife[38]
1.20
In the earlier Maddy’s case,[39]
the facts of which involved the killing of a man discovered by the defendant in
the act of committing adultery with the latter’s wife, a verdict of
manslaughter was returned: “the provocation being exceeding great and ... there
was no precedent malice”.[40] The
common denominator underlying the recognised categories of provocative conduct
had been identified as the element of unlawfulness or wrongfulness in the
provoker’s actions.[41]
1.21
In Mawgridge,[42] it was said that provocation had to be
significant in order to reduce murder to manslaughter. In that
case the alleged provocation (the throwing of a bottle at the defendant) was
found to be too trivial to justify that result. It is interesting to note
also that insulting words or gestures were regarded as insufficiently grave for
the purposes of the plea of provocation, thus confirming the views that had
been reported by Hale.[43]
1.22
The nineteenth century
development of the law of provocation confirmed the basic principles of the
defence as laid down in the preceding centuries. Thus in R v Kirkham,[44]
Coleridge J said that the overriding purpose of the plea was to take account of
human frailties:[45]
“[A]s it is well known that there are certain
things which so stir up in a man’s blood that he can no longer be his own
master, the law makes allowances for them … [when] what he did was done in a
moment of overpowering passion, which prevented the exercise of reason.”[46]
1.23
However, the resultant
concession to human frailty was not regarded as open-ended:
“[T]hough the law
condescends to human frailty, it will not indulge to human ferocity. It
considers man to be a rational being, and requires that he should exercise a
reasonable control over his passions.”[47]
1.24
While this statement
clearly demonstrated the importance the law attached to individual self-control
as a shared societal expectation in the context of provocation, it also pointed
up the absence of a clear standard of self-control that could be used by
trial judges when directing juries. In the absence of such a standard,
cases were determined by judges presenting juries with examples of situations
where the presence of provocation would reduce murder to manslaughter.
Writing in 1883, Stephen criticised this aspect of the plea as follows:
“It would be a great improvement in the law [of
provocation] to have a clear, definite rule upon the subject, for there is at
present nothing which can properly be called by that name.”[48]
1.25
Arguably Stephen’s
criticism was too harsh. In R v Welsh,[49]
decided in 1869, Keating J had introduced a new point of reference by
invoking the concept of the “reasonable man” as the standard by which an
accused’s reaction to provocation was to be measured, thereby laying the
foundation stone for the modern defence:
“[I]t is for the jury [to decide] whether [the
evidence] was such that they can attribute the act to the violence of passion
naturally arising … and likely to be aroused … in the breast of a reasonable
man.”[50]
1.26
The facts of Welsh[51]
were as follows. The accused had had a claim dismissed by a court for
recovery of a debt owed to him by the deceased. Following the hearing,
angry words were exchanged, with the accused threatening another summons on the
deceased. The accused was seen to stab the deceased with fatal
consequences. The issue before the court was whether there was sufficient
provocation to reduce the crime from murder to manslaughter and whether there
was such provocation as might naturally kindle ungovernable passion in the mind
of the accused.
1.27
As already indicated,
earlier cases had relied on individual judges to establish what counted as
sufficient provocation by alluding to the well-established categories of
untoward conduct. The effect of the ruling in Welsh[52]
was to replace this method of reference to types of behaviour with the standard
of the hypothetical “reasonable man”; whereas the old approach had its focus on
the conduct of the deceased, the new criterion dealt directly with the
role of the accused as measured against this standard. In the
result, the new criterion effectively precluded unusually irascible,
bad-tempered or excitable individuals from taking advantage of the defence; the
“reasonable man” could not be said to suffer from such volatile
characteristics.
1.28
Welsh[53] also
reiterated the opinion that words or gestures on their own did not amount to
provocation.[54]
Keating J based this proposition on the earlier case of R v Sherwood.[55]
Consequently, a successful defence of provocation henceforth required the
presence of two basic elements: actual passion on the part of the
accused and provocation sufficient to kindle ungovernable passion in the mind
of the ordinary “reasonable man”. Together these components came to be
referred to as the subjective and objective elements, respectively.[56]
Keating J in Welsh explained the importance of the new emphasis on the
requirement of reasonableness[57] as follows:
“When the law says that it allows for the
infirmity of human nature, it does not say that if a man, without sufficient
provocation, gives way to angry passion, and does not use his reason to control
it - the law does not say that an act of homicide, intentionally committed
under the influence of that passion, is excused or reduced to manslaughter.”[58]
1.29
The movement from Mawgridge[59] to Welsh[60]
thus marked a transition from the particular to the general.
The former case had set out the specific instances in which the plea of
provocation could be invoked; the latter established a general principle
applicable to provocative conduct in whatever form it might arise.
Moreover, by emphasising the universal requirement to exercise self-control, Welsh
continued to endorse the normative approach evident in the earlier cases.
In this respect, the decision did not change the fundamental philosophy of the
law; it merely restated the requirement for an authoritative standard in
general terms.
1.30
In other words, the
legacy of Welsh[61] was
to give modern expression to the traditional concern with the objective
component in the test of provocation. Henceforth that concern would be
embodied in the figure of the “reasonable man” as representative of a communal
standard expected of all members of society in the face of provocation.[62]
1.31
The immediate impact of
the ruling in Welsh[63] is difficult
to gauge. There appears to be no discussion of the decision in the
contemporary case law; although this may mean no more than that juries had no
trouble applying directions based on it. Nor was the decision mentioned
by Stephen in his Digest, published in 1877, but it appears to have come
to the attention of the Criminal Code Commissioners of 1879.[64]
Despite this seemingly inauspicious debut, the “reasonable man” standard
derived from Welsh was destined to play a role of paramount importance
in the subsequent development of the plea of provocation throughout the common
law world. As will be seen in Chapters 3 and 4, respectively, the
fundamental principle that provocation should be linked to a community standard
based on the capabilities of the ordinary person has been a cornerstone of
English law down to the present day; and of Irish law until the decision of the
Court of Criminal Appeal, in 1978, in People (DPP) v MacEoin.[65]
1.32
Mention has already
been made of the fact that, in its original, early modern incarnation, a
successful plea of provocation negated malice aforethought; but, with the
passage of time, provocation came to be regarded as a partial defence in its
own right. The older view of the plea as going to mens
rea has however proved surprisingly
resilient and continued to surface in the modern case law. Thus, in Welsh[66]
Keating J stated that it was for the accused to show “sufficient provocation …
because it tends to negative the malice [aforethought].”[67]
A similar direction was given in R v Selten[68]
where Hannen J stated that “the law … admits evidence
of such provocation as is calculated to throw a man’s mind off its balance, so
as to show that he committed the act while under the influence of temporary
excitement, and thus to negative the malice which is of the essence of the crime
of murder.”[69] As
recently as the 1940s the House of Lords reiterated the view that provocation
negates malice.[70]
1.33
This view of
provocation was finally purged from the law during the second half of the
twentieth century. In Attorney General for Ceylon v Perera,[71] Goddard LCJ,
speaking on behalf of the Privy Council, concluded:
“The defence of provocation may arise where a
person does intend to kill or inflict grievous bodily harm but his intention to
do so arises from sudden passion involving loss of self-control by reason of
provocation. An illustration is to be found in the case of a man finding
his wife in the act of adultery who kills her or her paramour, and the law has
regarded that, although an intentional act, as amounting only to provocation.…”[72]
1.34
It is clear from this
statement that provocation is not inconsistent with the existence of an
intention to kill or cause serious harm and that proof of that state of mind by
the prosecution will not, of itself, operate to deny the defence of
provocation. In other words, a provoked killing is an intentional killing.
1.35
The position in Perera[73] is
now preferred to that outlined in Holmes v DPP.[74]
In Lee Chun-Chuen v The Queen,[75]
Lord Devlin took the view that the remarks in Holmes were confined to
actual intent in the sense of premeditation, faintly echoing the literal
interpretation of “malice prepense” that was adopted
in early modern law. The same conclusion was reached in MacEoin[76] where the
Court of Criminal Appeal held it to be a misdirection to instruct the jury that
provocation had to be such as to render the accused incapable of forming an
intention to kill or cause serious injury. The Court of Criminal Appeal
reinforced this view in People (DPP) v Bambrick[77]
with the observation that “[t]he question of provocation is separate and
distinct from the question of intention. If there was provocation it may
reduce the killing from murder to manslaughter notwithstanding that the accused
person intended to kill or cause serious injury.”[78]
This conception of the relationship between provocation and intention is
now shared by most common law jurisdictions.[79]
F
Summary
1.36
This chapter outlined
the development of the plea of provocation from its sixteenth-century roots in
the division of felonious homicide into murder and manslaughter. From the
beginning, the plea was confined to distinct categories of provocation and was
governed by normative standards. Whilst this approach was to be radically
altered in the wake of the invocation of the concept of the “reasonable man” in
the nineteenth-century case of Welsh,[80]
the fundamental principle that provocation should be measured by objective
criteria continued to operate well into the twentieth century. However, as
will be seen in Chapters 3, 4 and 5, subsequent judicial and legislative
developments, particularly in Ireland and England, have substantially eroded
this position to the extent that a more or less subjective approach is now in
the ascendancy.
Chapter 2
Justification versus Excuse
“Partial justifications reduce the
wrongfulness of acts; partial excuses reduce the blameworthiness of agents.”[81]
A
Introduction
2.01
Although it has long
been settled law in these islands that provocation is, at best, a partial
defence to murder, courts and commentators differ as to whether the rationale
underpinning the plea is one of partial justification or partial excuse.
Strongly reasoned arguments have been advanced in support of both possibilities
and, accordingly, it has recently been suggested that the plea is best viewed
as a combination of justificatory and excusatory elements.[82]
As will be seen presently, although this debate has taken on a somewhat
forbidding theoretical character, it remains crucial to a proper understanding
of the plea of provocation,[83] and sheds
valuable light on how efforts to reform the law in this area should
proceed.
B
The Basic Distinction
2.02
The partial
justification rationale is based on the theory that the killing was to some
extent warranted by words said or acts done by the provoker to the
accused. The idea is that a portion of the responsibility for the killing
is transferred to the deceased on the grounds that he or she was partially to
blame for his or her own demise. In contrast, the partial excuse
rationale is based on the assumption that the accused should not be held fully
accountable for his or her actions by reason of loss of control caused by
provocation:
“The focus of the defence varies according to
whether it is perceived as a partial justification or partial excuse. The
argument from partial justification concentrates on the wrongful conduct of the
deceased that provoked the homicide, whereas the focus of a partial excuse
theory is on the accused’s loss of self-control.”[84]
C
Academic Opinion
2.03
The modern debate on the justification-excuse distinction as applied to
provocation was initiated by McAuley in an article in
the Modern Law Review in the late 1980s.[85]
The burden of that writer’s argument was that, bearing in mind their
repeated emphasis on the deceased’s contribution to the killing, the early
modern authorities pointed clearly to partial justification as the governing
rationale underlying the plea of provocation;[86]
although he acknowledged that the old cases also evinced judicial concern for
the excusatory aspect of the defence as reflected in the requirement that the
killing must have occurred in “heat of blood”.[87]
2.04 McAuley’s
assessment was criticised by Dressler as an over-simplification; although that
author in turn acknowledged that the inherent contradictions that beset the
modern plea of provocation derive in part from the fact that courts and
commentators had gradually lost sight of its original justificatory rationale.[88]
2.05
More recently, Horder has suggested that “there has
always been a key justificatory element or condition to a plea of provocation,
bound up with the excusatory element”,[89] while
Ashworth, commenting on the division of opinion outlined in the preceding
paragraphs, has expressed the view that the doctrine of provocation rests just
as much on notions of partial justification as upon the excusing element of
loss of self-control;[90] and this
would now appear to be the more settled and accepted academic position on the
matter.[91]
2.06
In the result, most writers now caution against undue emphasis on one rationale
at the expense of the other. Thus Ashworth has warned that, “[s]tanding alone, [partial justification] would lead the
courts to indulge those who take the law into their own hands and deliberately
wreak vengeance upon those who insult or wrong them.”[92]
2.07
Similarly, McAuley and McCutcheon have lamented the
virtual eclipse of the justificatory component of the plea in modern Irish law,[93] arguing that there has been an effective
closing out of the communal standard of self-control which has been a key
ingredient of the defence since it was introduced in 1869 in the guise of the
“reasonable man” criterion in the seminal case of R v Welsh.[94]
D
The Distinction in Practice
2.08
The practical implications of this debate can best be gleaned from a brief
overview of the modern development of provocation. As Chapter 1
illustrates, the seventeenth and eighteenth century authorities show that,
although they were aware of the excusatory dimension of the plea, the judges
initially perceived provocation as a partial justification. Hence the
early modern insistence on a bedrock of unlawful conduct on the part of the
deceased as a sine qua non of a successful plea of provocation; and the
concomitant rule that blows struck in self-defence or in response to
provocation by the accused did not qualify for protection under it.[95]
Hence, too, the contemporary doctrine that trivial provocation falling
short of a criminal or tortious assault and, a
fortiori, mere insulting words or gestures, unaccompanied by wrongful
deeds, were insufficient to support the defence.[96]
2.09
In contrast, the modern approach to the defence has effectively inverted this
order of priorities. Thus in R v Smith,[97]
Lord Hoffmann noted that the test of provocation had shifted from a
consideration of “whether the angry retaliation by the accused, though
excessive, was in principle justified, to [one] of whether the accused had lost
his self-control”, adding that the old dispensation belonged to “a world of
Restoration gallantry” in which “[t]o show anger ‘in hot blood’ for a proper
reason by an appropriate response was not merely permissible but the badge of a
man of honour.”[98]
2.10
Leaving aside Lord Hoffmann’s observations about the raison d’ętre of
the early modern approach to provocation, his assessment of the more recent
history of the plea cannot be gainsaid. It is now commonplace for courts
to consider the accused’s personal characteristics when assessing his or her response
to provocation. Indeed, in some jurisdictions – notably Ireland – this
tendency has ripened to the point that it is no longer meaningful to speak of a
test of provocation in the strict sense of the term: to all intents and
purposes, provocation is now circularly defined as that which triggered the
accused’s loss of control, there being no antecedent requirement of unlawful
(or even untoward) conduct on the part of the deceased and no threshold of
self-control that excused persons generally are expected to meet.[99]
2.11
Moreover, it would appear that there is no longer any requirement that the
deceased must even have been the source of the alleged provocation. In R
v Davies[100] the
defence succeeded notwithstanding the fact that the alleged provocation
emanated from a third party. Similarly, in People (DPP) v Hennessy[101]
it appears to have been accepted that evidence of the “surrounding
circumstances” leading to the killing could go to the jury on the issue of
provocation.[102]
Given that the circumstances in question were that the accused was suffering
from stress occasioned by the fact that he had been suspended from his job on
suspicion of embezzlement, and that the trial judge acknowledged that the
deceased’s contribution to his violent outburst – she had told him that he was
“no good” and had slapped him across the face[103]
– appeared to be “of a very low level”,[104]
Hennessy might thus be regarded as a dramatic illustration of Lord
Hoffmann’s conclusion, in Smith,[105]
that the modern defence of provocation has shed its justificatory plumage
to the extent that it can now be more accurately described as a plea of loss of
control simpliciter.
2.12 A fortiori,
it is arguable that the modern plea, at least in its extreme subjectivist
guise, should not even be described as a partial excuse, let alone as a
partial justification. If, following Austin,[106]
we define the concept of a legal or moral excuse as presupposing a standard of
conduct with which, barring the presence of a recognised exculpatory condition,
individuals are generally expected to comply, then it follows that a criterion
of provocation which is capable of infinite variation in order to take account
of an accused’s “temperament, character and circumstances”[107]
does not satisfy that definition.
2.13
On the contrary, given that it has been accepted that it is virtually
impossible to disprove evidence of provocation once it has been introduced
under the rubric of the subjective test,[108]
such a criterion might be more accurately characterised as a quasi-automatic exemption
from liability for murder, rather than as a plea in mitigation strictly
defined.
E
Summary and Conclusions
2.14
The debate is ongoing as to whether provocation should be seen as a
partial justification (which has its focus on the wrongful conduct of the
deceased), as a partial excuse (which concentrates on the accused’s loss of
self-control) or as a plea embodying both rationales. This issue has
important implications for the operation of the defence. For example, a
partial justification rationale would dictate that provocation must emanate
from the deceased, whereas under partial excuse theory it could come from any
source. Similarly, partial justification theory requires evidence of
untoward conduct – as measured by ordinary community standards – on the part of
the deceased as a necessary condition of the plea; whereas excuse theory knows
no such limitation, it not being premised on a standard of reasonable
behaviour. For the reasons set out in Chapter 7,[109]
the Commission broadly favours the introduction of a justification-based model
of the defence of provocation, although it acknowledges that reform should be
tempered by excuse-based considerations going to the culpability of the
individual accused.
Chapter 3
The Modern Law IN England AND wales
“My Lords, it is impossible to read
even a selection of the extensive modern literature on provocation without
coming to the conclusion that the concept has serious logical and moral flaws.”[110]
3.01
This chapter examines
the evolution of the law of provocation in England and Wales since the landmark
decision in R v Welsh[111] in
1869.
3.02
As discussed in Chapter
1, the modern law of provocation can be said to derive principally from the
nineteenth-century case of Welsh[112]
where, for the first time, the rudiments of the defence were expressed in
general terms by invoking the concept of the “reasonable man”:
“The law is, that there must exist such an
amount of provocation as would be excited by the circumstances in the mind of a
reasonable man, and so as to lead the jury to ascribe the act to the influence
of that passion.”[113]
3.03
It would appear that
the figure of the “reasonable man” as encountered in Welsh[114]
was a migrant from the contemporary law of tort and was hitherto unknown to
the criminal law.[115]
Moreover, it has been suggested that, in its new surroundings, the concept was
originally intended to operate more as a metaphor than as a precise legal
standard. As Lord Hoffmann explained in R v Smith,[116]
it was originally conceived as a way of explaining the law of provocation to
juries, as
“an anthropomorphic image [designed] to convey
to them, with a suitable degree of vividness, the legal principle that even
under provocation, people must conform to an objective standard of behaviour
which society is entitled to expect”.[117]
3.04
The first case to come
before the courts in England and Wales which attempted to put flesh on the
bones of the “reasonable man” criterion enunciated in Welsh[118]
was R v Lesbini.[119]
In that case, the accused shot dead a girl at a firing range in an amusement
arcade because she had directed some insulting remarks at him. In
approving the principle enunciated in Welsh, the Court set out a dual
test for provocation:
(i)
that it might cause a
“reasonable man” to lose self-control; and
(ii)
that it actually caused
the accused to do so.
3.05
This newly devised
standard of provocation contained both a subjective and an objective
component. The latter component was concerned with whether a “reasonable
man” would have reacted as the accused had done if placed in the same
situation. The former centred on whether or not the accused had in fact
lost his or her self-control. Since Lesbini[120]
the judges have continued to employ this two-pronged standard. In Mancini
v DPP,[121] the House
of Lords expressly approved the Lesbini approach
as follows:
“The test to be applied is that of the effect
of the provocation upon a reasonable man, as was laid down by the Court of
Criminal Appeal in R v Lesbini, so that an
unusually excitable or pugnacious individual is not entitled to rely on
provocation which would not have led an ordinary person to act as he did.”[122]
3.06
Similarly, in Holmes
v DPP,[123] where the
defendant sought to rely on his wife’s confession of adultery as a basis for
the plea, Viscount Simon said that the test of provocation was:
“(a) whether a reasonable person, in
consequence of the provocation received, might be so rendered subject to
passion or loss of control as to be led to use the violence with fatal results,
and (b) [whether] the accused was in fact acting under the stress of such
provocation.…”[124]
3.07
The formula used by
Devlin J in R v Duffy[125] is regarded
as the classic direction in provocation cases. In the Court of Criminal
Appeal, Goddard LCJ described it as “impeccable”, “a classic direction”, giving
“as clear and accurate a charge to a jury when provocation is pleaded as can
well be made.”[126]
Devlin J had stated:
“Provocation is some 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 master of his mind.”[127]
3.08
The “reasonable man”
standard as articulated in Duffy[128]
was significantly overhauled in Bedder
v DPP[129] where the
House of Lords relied on the test laid down by Devlin J in Duffy.
3.09
The facts in Bedder[130]
were as follows. The accused was eighteen years old and sexually
impotent. He had been convicted of murdering a prostitute who had
ridiculed him and kicked him when he failed in his attempt to have sexual
intercourse with her. On appeal, first to the Court of Criminal Appeal
and then to the House of Lords, it was argued on behalf of the appellant that
the trial judge had misdirected the jury by telling them to assess the
provocation by reference to the “reasonable man” standard simpliciter;
and that he should have told them to invest the “reasonable man” with the
accused’s physical peculiarities (in this particular case, impotence) before
making this assessment.
3.10
The House of Lords
expressly rejected this contention, with Lord Simonds
LC quoting the trial judge, Sellers J:
“There may be, members of the jury, infirmity
of mind and instability of character, but if it does not amount to insanity, it
is no defence. Likewise infirmity of body or affliction of the mind of
the assailant is not material in testing whether there has been provocation by
the deceased to justify the violence used so as to reduce the act of killing to
manslaughter.”[131]
3.11
Regarding the
suggestion that they should draw a distinction between physical and mental
characteristics for the purposes of the plea of provocation, their Lordships
held that such an approach “is too subtle a refinement” and that it “makes
nonsense of the test” (as set out in Mancini[132])
as it endows the “reasonable man” with “abnormal characteristics.”[133]
3.12
In the earlier case of Lesbini,[134]
the trial judge had refused to modify the “reasonable man” standard so as to
take account of the mental incapacity of the accused. The defence had
argued that the accused was suffering from defective self-control and mental
imbalance which caused him to kill the deceased and, therefore, was not
responsible for his actions. It was suggested that Welsh[135]
did not apply to the instant case owing to the presence of these particular
defects in the accused. This argument was rejected, Reading LCJ stating
for the Court that provocation must be such as would “affect the mind of the
reasonable man.”[136]
3.13
The effect of these two
cases was to produce a starkly literal interpretation of the “reasonable man”
standard which had been introduced in Welsh:[137]
none of the personal characteristics of the accused could henceforth be taken into
account when determining the gravity of provocation; nor was it permissible to
invest the “reasonable man” with any peculiarities of the accused that may have
influenced his or her response to provocation.
3.14
The rule in Bedder[138]
has been heavily criticised by commentators.[139]
According to Ashworth, “the true function of the objective test is to
apply a standard of reasonable self-control”.[140]
On this view, there is no logical contradiction involved in speaking of the
level of self-control that can reasonably be expected of an impotent man.
On the contrary, Ashworth continued, Bedder
made “bad law” precisely because it precluded reference to factors – such as
impotence – going directly to gravity. In the event, such was the
negative impact of the decision in that case that section 3 of the Homicide
Act 1957 was introduced with the express aim of modifying the test associated
with it.[141]
3.15
Section 3 of the Homicide
Act 1957 states:
“Where on a charge of murder there is evidence
on which the jury can find that the person charged was provoked (whether by
things done or by things said or by both together) to lose his self-control,
the question whether the provocation was enough to make a reasonable man do as
he did shall be left to be determined by the jury; and in determining that
question the jury shall take into account everything both done and said
according to the effect which, in their opinion, it would have on a reasonable
man.”
3.16
The 1957 Act was
enacted in the wake of the Report of the Royal Commission on Capital
Punishment 1949-1953 and the decision in Bedder.[142]
The Report had made reference to the limited scope for a successful plea of
provocation in the courts, citing in particular the constraints placed on the
defence by the judges’ rigid interpretation of the impersonal “reasonable man”
test.[143] At
the same time, it was evident that, given the spectre of the death penalty,[144]
juries were willing to allow the defence of provocation in circumstances where
it would have been excluded by a strict application of the “reasonable man”
test. These two factors shaped the background to the drive for
legislative reform.
3.17
It can be seen from the
text of section 3 that the 1957 Act preserved the dual test of provocation as
laid down in Lesbini[145]
and authoritatively reiterated in Duffy.[146]
However, the Act made two important changes to the existing law on
provocation. First, words were recognised as capable of amounting to
provocation. Secondly, the Act provided that any evidence to the effect
that the accused had lost self-control must be left to the jury.
3.18
Section 3 of the 1957
Act does not, on its face, say that an accused’s characteristics may be taken
into account in deciding the issue of provocation. Nor does it expressly
provide that the “reasonable man” should be notionally invested with the
accused’s characteristics.
3.19
Yet the effect of the
section was undoubtedly to liberalise the test of provocation. This was
achieved by leaving the concept of the “reasonable man” at large and by giving
the jury freedom to determine whether he or she could have been provoked on the
evidence before it. Thus in practice juries were enabled to take the
accused’s personal characteristics into account when evaluating the gravity of
provocation offered by the deceased.
3.20
The doctrinal framework
for this arrangement was worked out in Camplin[147]
where the Court of Appeal criticised Bedder[148]
and endorsed the practice of taking into account certain characteristics of the
accused in order to decide the effect that provocation may have had on the
“reasonable man” endowed with those particular traits. The Court of
Appeal’s decision was approved by the House of Lords.[149]
Camplin involved an accused aged fifteen years
who, without his consent, had been buggered by the deceased, an adult
homosexual, who then mocked him when the episode was over. The accused
hit the deceased over the head with a chapatti pan and killed him. The
defence argued that the accused had been provoked by the deceased.
3.21
The Court of Appeal
justified the presence of the objective element in the standard for provocation
thus:
“It is desirable and right that if a defence of
provocation, reducing what would otherwise be murder to manslaughter, is to be
available, it should not give an exceptional advantage to persons exceptionally
sensitive, exceptionally excitable or exceptionally hot tempered in character.”[150]
3.22
Bridge LJ, delivering
the judgment of that Court, held that the “reasonable man” standard was
formulated to exclude from the defence those abnormalities (be they mental or
physical) which lead to a deficiency in self-control. However, in that
judge’s view, youth (the characteristic in issue in this case) was not such an
abnormality, nor was the immaturity which accompanied youth, given that they
are both “norms through which we must all of us have passed before attaining
adulthood and maturity.”[151]
3.23
The Court of Appeal
distinguished youth from personal idiosyncrasies or abnormalities and held that
the latter ought to be excluded from consideration when determining the
question of reasonableness. In allowing youth to be taken into
consideration, the Court held that “the proper direction to the jury is to
invite the [trier of fact] to consider whether the
provocation was enough to have made a reasonable person of the same age as the
appellant in the same circumstances do as he did.”[152]
When the Court was referred to Bedder,[153]
Bridge LJ declared that this case had carried the principle of the “reasonable
man” to “its extreme limit”.[154] In
support of this conclusion, Bridge LJ alluded to the many criticisms that had
been voiced in the aftermath of the decision in Bedder.[155]
3.24
Camplin[156] was referred from the Court of
Appeal to the House of Lords on a point of law of general public importance:
namely, whether the jury should be directed to consider the question of
reasonableness by reference to a reasonable adult or a reasonable boy of
fifteen. Delivering the judgment of the House, Lord Diplock
prefaced his answer to this question as follows:
“The public policy that underlay the adoption
of the ‘reasonable man’ test in the common law doctrine of provocation was to
reduce the incidence of fatal violence by preventing a person relying on his
own exceptional pugnacity or excitability as an excuse for loss of
self-control. The rationale of the test may not be easy to reconcile in
logic with more universal propositions as to the mental element in crime.
Nevertheless it has been preserved by the 1957 Act but falls to be applied now
in the context of a law of provocation that is significantly different from
what it was before the Act was passed.”[157]
3.25
Turning to the concept
of the “reasonable man”, Lord Diplock said that it
should not be defined exclusively in terms of the adult male. Rather the
concept connoted a reasonable person of either sex who possesses powers of
self-control which may be expected of every member of society:
“[The reasonable man] is a person having the
power of self-control to be expected of an ordinary person of the sex and age
of the accused, but in other respects sharing such of the accused’s
characteristics as they [the jury] think would affect the gravity of the
provocation to him, and that the question is not merely whether such a person
would in like circumstances be provoked to lose his self-control but also
whether he would react to the provocation as the accused did.”[158]
3.26
The speeches in Camplin[159]
did not specify the range of characteristics which might legitimately be taken
into account when assessing the effect of provocation and it is not clear where
the line between admissible and inadmissible factors should be drawn. Age
and sex were identified as relevant characteristics, but it is safe to
assume that race, ethnic origin, religious affiliation and physical infirmity
might also qualify in this regard. In R v Morhall,[160]
it was held that the accused’s history and the circumstances in which he or she
found himself or herself were relevant. In that case, the accused’s
addiction to glue sniffing was held to be relevant to the gravity of
provocation. The ruling in Morhall
indicates that discreditable characteristics may be taken into account and it
has been suggested that a person’s criminal record and paedophile tendencies
might also feature in the evaluation of the defence.[161]
On the other hand, the speeches in Camplin
unequivocally excluded temperamental disposition, irascibility and drunkenness
from consideration.
3.27
While the English
courts have gradually expanded the list of personal characteristics that may be
taken into account, a vital distinction was drawn in Camplin[162]
between characteristics that affect the gravity of provocation and those that
relate to the question of self-control. The jury may take the accused’s
personal characteristics into account when considering the question of gravity
since in many cases the impact of provocation can only be grasped by
considering such characteristics. On the other hand, personal
characteristics were deemed to be irrelevant to the issue of self-control: here
the accused is expected to match the standard of the “reasonable man” simpliciter. The only exception to this rule
came in the form of a recognition that age (and perhaps sex)[163]
effectively determines the level of an individual’s self-control. Thus
Lord Diplock felt that age should be taken into
account when assessing self-control (as well as gravity of provocation) because
“to require old heads upon young shoulders is inconsistent with the law’s
compassion to human infirmity.…”[164]
This distinction between the issues of the gravity of provocation and the
matter of self-control has been central to the development of the law since the
decision in Camplin and was recently
reiterated by the House of Lords in Morhall.[165]
3.28
The relevance of mental
infirmity to provocation has posed special difficulties for the courts in the
aftermath of the decision in Camplin.[166]
Hitherto, it was clear that mental infirmity was excluded from
consideration,[167] but the
recasting of the defence in that case forced a rethink. It was argued
that mental infirmity should be treated on the same basis as other
characteristics affecting the gravity of provocation. This was met by the
competing contention that evidence of mental infirmity was appropriate to the
defences of insanity and diminished responsibility rather than provocation.[168]
3.29
The authorities are
divided on this issue. In a series of decisions in the 1990s, the Court
of Appeal held that an accused’s mental infirmity could be taken into account
in relation both to the question of gravity of provocation and to that
of self-control. Accordingly, conditions such as eccentric and obsessional personality, depressive illness, paranoia,
abnormal personality with immature, explosive and attention seeking traits,
battered woman syndrome and personality disorders were held to be relevant.[169]
This development had two effects. First, it created an overlap
between the plea of provocation and the mental condition defences, especially
diminished responsibility. Secondly, it meant that in contrast with other
relevant characteristics, mental infirmity could also be taken into account
when assessing the question of self-control, thereby weakening the normative
dimension of the defence of provocation.
3.30
A more cautious
approach was adopted in Luc Thiet Thuan v The Queen,[170]
an appeal from Hong Kong to the Privy Council. There it was held, by a
majority of three to one, that the appellant’s mental infirmity which reduced
his powers of self-control below that of a normal person could not be
attributed to the reasonable person when considering the objective (or
normative) element of the defence of provocation. Writing for the
majority, Lord Goff noted that the objective test had survived the legislative changes
(introduced in the 1957 Act) to the defence of provocation and suggested that
it was not open to the courts to interpret the law in a manner which subverted
that state of affairs.
3.31
Thus, by the end of the
1990s, there was an irreconcilable division of opinion in the authorities on
the question of mental infirmity. Trial courts in England and Wales
naturally felt bound by the Court of Appeal decisions rather than by the ruling
in Luc Thiet Thuan.[171]
On the other hand, leading commentators took the view that the latter
decision “seems right.”[172] As
will be seen presently, the House of Lords effectively settled the matter in Smith[173]
by all but abolishing the distinction between conditions affecting gravity and
characteristics affecting self-control which had been central to the decision
in Camplin;[174]
and, in the process, created a significant overlap between the
defences of provocation and diminished responsibility.
E
Moves Towards a Subjective Test
3.32
In Smith[175]
the defendant was charged with murder and relied on the defence of provocation,
among others, alleging that he suffered from a serious clinical depression
which caused him to lose self-control and carry out the killing. He was
convicted of murder but successfully appealed to the Court of Appeal on the
ground that the trial judge had misdirected the jury by instructing them that
the accused’s depressive state should be taken into account in relation to the
gravity of the provocation but not in respect of his powers of
self-control.[176]
3.33
The Crown brought an
appeal to the House of Lords in order to determine which characteristics were
relevant for consideration by the jury: those relating to the gravity of the
provocation and/or those affecting the accused’s powers of self-control.
Counsel for the Crown argued that personal characteristics must be excluded
from consideration, subject to the very limited exceptions of age and sex
recognised in Camplin:[177]
“[d]epartures from that approach destroy the concept
of a reasonable man by whose standard of control the behaviour of the
particular individual is to be judged.”[178]
Defence counsel responded by contending that this was not a requirement of
section 3 of the 1957 Act and that it would be unfair and unreal to apply the
approach advocated by the Crown: “[a] person’s response to provocation must be
judged by comparison with a reasonable man having the same relevant
characteristics as he has.”[179]
3.34
Although the appeal
turned on the relationship between mental infirmity and the defence of
provocation, the House of Lords took the opportunity to conduct a general
review of the law in the area. As Lord Hoffmann stated, “this appeal
offers an opportunity, within the constraints imposed by history and by
Parliament, to make some serviceable improvements.”[180]
By a majority of three to two, it was held that the jury should take account of
the accused’s mental infirmity as a relevant characteristic when assessing the
questions of gravity of provocation and self-control alike. The majority
stated that the distinct roles assigned to the judge and jury by section 3 of
the 1957 Act – whereby the judge can no longer direct the jury as to the
characteristics it must take into account, or ignore, in determining whether or
not the accused was provoked – meant that it was the duty of the trier of fact to consider the totality of the
accused’s characteristics in deciding whether he or she acted under
provocation. The majority thus endorsed the Court of Appeal decisions
noted in the preceding section in preference to the view which had prevailed in
the Privy Council in Luc Thiet Thuan.[181]
Significantly, it was also held that evidence of mental infirmity was not, in
the opinion of their Lordships, confined to the defence of diminished
responsibility. The establishment of that defence by section 2 of the Homicide
Act 1957 did not preclude evidence of mental infirmity from being tendered
in support of a defence of provocation.
3.35
Smith[182] thus represents a significant broadening of the
scope of the defence of provocation: henceforth no distinction may be drawn
between those characteristics going to the gravity of provocation and those
going to a defendant’s powers of self-control. This distinction was said
to be futile not least because it was too complex for jurors to apply:[183]
“The jury is entitled to act upon its own
opinion of whether the objective element of provocation has been satisfied and
the judge is not entitled to tell them that for this purpose the law requires
them to exclude from consideration any of the circumstances or characteristics
of the accused.”[184]
3.36
While willing to
countenance the widening of the defence as described above, the majority in Smith
expressed concern lest the element of objectivity in the test for provocation
be entirely eroded. Thus Lord Hoffmann stated that “[f]or the protection of
the public, the law should continue to insist that people must exercise
self-control”[185] because
“[a] person who flies into a murderous rage when he is crossed, thwarted or
disappointed in the vicissitudes of life should not be able to rely upon his
antisocial propensity as even a partial excuse for killing.”[186]
In Lord Hoffmann’s view, the objective element in the defence should be
preserved by emphasising the need for the public to exercise self-control, as
well as by ensuring that a limit is placed on the range of characteristics
which the accused may rely upon when introducing evidence of loss of
self-control. In this regard, Lord Hoffmann, citing the Australian case of
Stingel v R,[187]
mentioned jealousy and obsession as examples of two anti-social characteristics
which would be excluded from consideration.[188]
Lord Slynn was equally concerned that the
objective standard be retained: “this does not mean that the objective standard
of what ‘everybody is entitled to expect that his fellow citizens will exercise
in society as it is today’ is [being] eliminated.”[189]
3.37
The decision in Smith[190]
has been criticised by commentators.[191]
The burden of the critique has been that the majority misinterpreted the
decision in Camplin[192]
and overlooked the context of the Homicide Act 1957. Thus, it has
been suggested[193] that the
weight of authority was to the effect that the personal characteristics of the
accused are not relevant to the question of self-control; and that the House of
Lords had unanimously endorsed this stance several years earlier in Morhall.[194]
It has also been suggested that mental infirmity more appropriately gives
rise to the defence of diminished responsibility provided for in section 2 of
the 1957 Act. Perhaps the most trenchant criticism has been that the
decision endorses a “culturally relativised”
criterion[195] and
invites “an evaluative free-for-all in which anything that induces sympathy by
the same token helps to excuse, [with the result that] little more than lip
service is paid to the all-important objective (impersonal) standard of the
reasonable person.…”[196]
3.38
Since the decision in Bedder,[197]
the courts in England and Wales have been keen to distance themselves from the
result achieved by the House of Lords in that case. The movement away
from Bedder had been confirmed by the House of
Lords in Camplin[198]
and reiterated in Morhall.[199]
3.39
It is perhaps too soon
to draw definite conclusions as to how precisely the decision in Smith[200]
fits into this scheme of things. Despite the observations of the majority
to the effect that the element of objectivity was being retained, the upshot of
the decision appears to be that the law in England and Wales is moving
inexorably towards a purely subjective approach to provocation. Given the
legislative basis of the objective test in that jurisdiction, it may be
questioned whether it is properly within the province of the courts to effect
such a radical change in the law. Be that as it may, to the extent that
it is thought desirable to introduce an objective component into the Irish law
on provocation, experience in England and Wales suggests that section 3 of the Homicide
Act 1957 is unlikely to provide the best model for reform.
3.40
This chapter traced the
origins and development of the “reasonable man” test of provocation in the law
of England and Wales. Although a literal interpretation of this test had
been adopted by the mid-twentieth century, the courts gradually came to accept
that the hypothetical “reasonable man” should notionally be invested with the
characteristics of the accused. Nevertheless, a sharp distinction was
drawn between those characteristics affecting the gravity of provocation,
which were deemed relevant under the test, on the one hand, and those relating
to the question of self-control, which were regarded as irrelevant, on the
other. However, even this distinction has now been rejected in the recent
decision of the House of Lords in Smith,[201]
prompting suggestions that the law in England and Wales is moving closer to the
subjective approach currently applied in Ireland.
Chapter 4
The Modern Law IN Ireland
4.01
Irish case law was
silent on the subject of provocation until 1978; hence the relevance of
developments in England and Wales prior to that date. However, within
days of the House of Lords delivering its judgment in DPP v Camplin,[202]
the Court of Criminal Appeal decided People (DPP) v MacEoin.[203]
As will be seen presently, the decision in that case was to shape the
modern law of provocation in Ireland.
A
The Birth of the Subjective Test
4.02
The MacEoin[204]
appeal raised several issues. The accused had been convicted of
murder in the Central Criminal Court. His evidence was that the deceased
had attacked him with a hammer, causing him to simmer over and lose control,
whereupon he killed the deceased with the hammer. Echoing the early
modern origins of the defence, the trial judge told the jury that the alleged
provocation must have been such as to render the appellant incapable of forming
an intention to kill or cause serious injury. At the very least, this
direction was inconsistent with the balance of judicial opinion and, in the
event, the Court of Criminal Appeal confirmed that the true position was that
provocation does not negate mens rea in the form of intention: it actually presupposes
it. Distinguishing the earlier authorities to the contrary effect,[205]
the Court said that:
“the provocation relied on usually is one, if
not the sole, cause of the formation of the intention to kill or cause serious
injury to another. To speak of provocation negativing
or depriving a man of the intention to kill or cause serious injury is to
confuse cause and result.”[206]
4.03
Although the
misdirection on the relationship between provocation and intention was the
basis on which the MacEoin[207]
appeal was decided, the Court of Criminal Appeal took the opportunity to essay
a general review of the law of provocation. The Court began its survey by
questioning whether the trial judge had been correct in his application of the
prevailing objective standard to Irish law. That standard, in its
unqualified Bedder[208]
form, had been trenchantly criticised not least in the speeches of the House of
Lords in Camplin:[209]
“[T]he courts seem to have created the concept
of ‘the reasonable man’ as a mythical person seemingly not only detached from
but also rather remote from the accused person and having certain attributes as
laid down by the court and as the courts directed juries to accept.”[210]
4.04
As noted in Chapter 3, Camplin[211]
marked the formal adoption in England and Wales of a modified objective
standard which permitted the Court to take account of some of the accused’s
personal characteristics in the context of provocation. Given this
background, it was, perhaps, to be expected that the Irish courts might
likewise depart from the much criticised Bedder[212]
test. Possibly because it had been delivered a mere eleven
days previously,[213] the
decision in Camplin was not brought to
the attention of the Court of Criminal Appeal in MacEoin.[214]
Had Camplin been cited, the Irish law of
provocation might have taken a different course. In the event, the Court
followed the English lead in widening the definition of provocation to include
insulting words, stating that the jury must consider “acts or words, or both,
of provocation”,[215] but went
beyond the position that had been adopted in Camplin
when seeking a solution to the problems bequeathed by the objective test as
laid down in Bedder. The test formulated
by the Court in MacEoin is as follows:
“[T]he trial judge at the close of the evidence
should rule on whether there is any evidence of provocation which, having
regard to the accused’s temperament, character and circumstances, might have
caused him to lose control of himself at the time of the wrongful act and
whether the provocation bears a reasonable relation to the amount of force used
by the accused.”[216]
4.05
In framing the new
subjective standard, the Court of Criminal Appeal relied on a minority judgment
in Moffa v The Queen,[217]
a recent decision of the High Court of Australia. Murphy J’s strong dissenting
judgment in that case was quoted at length and formed the basis for the Court
of Criminal Appeal’s rejection of the objective test. Murphy J had
objected to the “reasonable man” component of the traditional test of
provocation on the grounds that it did not sit with the heterogeneous nature of
modern society. Given this heterogeneity, he had stated, “[t]he test
cannot withstand critical examination.”[218]
4.06
In Murphy J’s opinion
the “objective test is not suitable even for a superficially homogeneous
society, and the more heterogeneous our society becomes, the more inappropriate
the test is.”[219] Thus “[i]t is impossible to construct a model of a reasonable or
ordinary South Australian for the purpose of assessing emotional flash point,
loss of self-control and capacity to kill under particular circumstances.”[220]
Accordingly, the judge concluded:
“The objective test should not be modified by
establishing different standards for different groups in society. This
would result in unequal treatment. The objective test should be
discarded. It has no place in a rational criminal jurisprudence.... It degrades
our standards of civilisation to construct a model of a reasonable or ordinary
man and then to impute to him the characteristic that, under provocation…, he
would kill the person responsible for the provocation.”[221]
4.07
Murphy J’s dissenting
judgment in Moffa[222]
was the only contemporary common law authority which supported the adoption
of a subjective standard, purged of any reference to the concept of the
“reasonable man”. Yet the Court of Criminal Appeal saw fit to rely on it
in MacEoin[223]
and its decision in that case quickly established itself as the locus classicus on the test of provocation in Irish
law. Drawing on Murphy J’s judgment in Moffa,
the Court of Criminal Appeal opined that the objective test was “profoundly
illogical”[224] and that
there were inherent inconsistencies in its basic philosophy as theretofore
employed by the courts in England and Wales and elsewhere. Not least of
these was the difficulty of determining which of the accused’s characteristics
should be attributed to the reasonable man in order to make the test workable
in practice. [225] In Moffa Murphy J had made a similar point to the
effect that, “unless he had lived the life of the accused, it would be
impractical to speak of what a reasonable or ordinary man would do in the
circumstances.”[226]
4.08
To fortify its
rejection of the objective test, the Court of Criminal Appeal aligned itself
with the Supreme Court’s analysis in People (Attorney General) v Dwyer,
a case dealing with the problem of excessive self-defence in murder.[227]
That analysis, the Court observed, “seems to us to have been a decisive
rejection of the objective test in a branch of law closely allied to
provocation.”[228] The
Court also referred to a number of academic criticisms of the objective test[229]
and concluded that the “test in cases of provocation should be declared to be
no longer part of our law.”[230] Unfortunately,
the Court neither elaborated on, nor discussed the merits of, the newly created
subjective test. It might also be observed that no consideration
would appear to have been given to the possibility that the requirements of
reasonableness and loss of self-control are not necessarily mutually exclusive.[231]
4.09
Significant criticism
has been levelled against the Court of Criminal Appeal’s
decision to retain a proportionality component as part of the new test.[232]
The resultant standard has been described as no less illogical than the
objective test it sought to replace.[233]
The gravamen of this charge is that the proportionality part of the MacEoin test requires the jury to consider whether
“the provocation bears a reasonable relation to the amount of force used
by the accused”[234] and that
this is inconsistent with the Court of Criminal Appeal’s stated aim of
introducing a radically subjective criterion of provocation.[235]
Alternatively, it has been argued that the deliberate inclusion of a
proportionality element casts doubt on the depth of the Court of Criminal
Appeal’s commitment to the wholesale subjectivisation
of the provocation standard.[236]
4.10
Admittedly, subsequent
interpretations of MacEoin[237]
appear to have reduced the proportionality part of the test to the status
of a factor to be considered in the context of the evidence as a whole; on this
analysis, subjectivity rather than proportionality remains the primary focus of
the defence.[238] Be
that as it may, the precise role of the proportionality component has not been
convincingly resolved. As already indicated, it remains unclear as to
precisely what the Court in MacEoin hoped
to achieve: viz, whether its emphasis on
proportionality was designed to ensure that some element of objectivity would
be preserved as part of the test or whether the Court merely included
proportionality as a guide to the type and quantum of evidence that would
support a plea of provocation. Thus two plausible interpretations of the MacEoin test are possible; it can be seen as:
(i)
a partly
subjective/partly objective test where both subjectivity and proportionality
are given equal weight; or
(ii)
a purely subjective
test which only takes the proportionality of the accused’s reaction into
consideration when weighing up the overall evidence.
4.11
Not surprisingly, the
resultant confusion has been criticised. In People (DPP) v Kelly,[239]
the Court of Criminal Appeal warned against quoting from the judgment in MacEoin because of what it regarded as its confusing
discussion of the law; and it has also been suggested that the analogy drawn by
the Court of Criminal Appeal in that case with Dwyer[240]
is misleading. In the nature of things, an accused’s unreasonable
belief negates the mens rea
for murder in the case of excessive self-defence, whereas the defence of
provocation, as the decision in MacEoin itself
verified, assumes its existence.[241]
B
Attempts to Clarify People (DPP) v MacEoin
4.12
The Court of Criminal
Appeal has made several attempts to clarify the MacEoin[242]
ruling.
4.13
In People (DPP) v Mullane[243]
the appeal was based on the allegation that the issue of provocation had not
been adequately explained to the jury. The accused alleged that he killed
his partner as a result of her taunts regarding his lack of sexual
prowess. The defence relied exclusively on the provocative effect of
these taunts. The Court of Criminal Appeal admitted the possibility that
the jury might have been confused as to the exact nature of the standard to be
applied, conceding that the proportionality component of MacEoin[244]
might suggest that there was, after all, a lingering element of objectivity
in the defence.[245]
However, it was held that it had not been part of the Court of Criminal
Appeal’s intention in MacEoin to retain
any such element. In the opinion of the Court, the reference to
proportionality in that case was rather designed as a vehicle for testing the
accused’s credibility:
“[T]he impugned sentence in MacEoin
really comes down to credibility of testimony rather than to any suggestion
that the accused’s conduct is to be once more judged by an objective
standard. That latter construction would go contrary to everything else
that is contained in the judgment.”[246]
4.14
Interestingly, the
Court of Criminal Appeal’s attempt to resolve the contradiction involved in the
apparent inclusion of a proportionality requirement in MacEoin[247]
was carried out without support from the authorities. Nor was the
conclusion that proportionality went only to credibility warranted by the
reasoning in MacEoin itself. On
the contrary, the proportionality requirement was clearly part of the ratio decidendi in MacEoin:
having laid down the subjective test of provocation, the Court in McEoin had continued in the imperative voice
to the effect that the trial judge must rule on “whether the provocation bears
a reasonable relation to the amount of force used by the accused.” Stannard’s assessment of Mullane[248]
thus seems apt: in that case the Court of Criminal Appeal “tries valiantly to
make sense of MacEoin, but only succeeds in
making matters more obscure than they already were.”[249]
4.15
In People (DPP) v
Noonan,[250] decided
six months later, the confusion surrounding the proportionality element in the
test was again at issue. The trial judge was found, in effect, to have
given a Camplin-style direction to the jury
rather than one based on MacEoin. The
Court of Criminal Appeal acknowledged the potential confusion surrounding the MacEoin judgment’s reference to
proportionality in the context of what purported to be a purely subjective
test. Nevertheless, the Court went on to affirm Mullane,[251]
holding that any ambiguity in MacEoin on this
point had been clarified by O’Flaherty J’s statement, in Mullane,
that proportionality went only to the issue of credibility.[252]
4.16
Similarly,
in People (DPP) v O’Mahony[253]
the
appeal was grounded on the trial judge’s alleged failure to direct the jury as
to the correct standard to be applied in relation to provocation. It was
argued on behalf of the appellant that the fact that the trial judge had used
the phrase, “it is not whether [the conduct] would provoke a reasonable man, but
whether it would provoke a person of the disposition and character and
circumstances of the accused”, had effectively transposed the matter into
third-person terms, thereby introducing an objective dimension into the
test. The Court of Criminal Appeal found that this contention amounted to
an over-analysis of the charge to the jury and that the broad thrust of the
trial judge’s remarks was enough to leave the trier
of fact in no doubt that the test of provocation was subjective in nature.
4.17
In People (DPP) v Bambrick[254]
the deceased, who was intoxicated, had made suggestive homosexual remarks,
followed by a physical homosexual advance, to the accused (who was also intoxicated).
The accused said in evidence that this episode triggered memories of his own
childhood abuse and caused him to lose control and batter the deceased to death
with a wooden stake. It was argued on behalf of the defendant that the trial
judge failed to tell the jury that provocation does not negate an intention to
kill (or cause serious injury). Counsel for the defendant also submitted
that the trial judge had misdirected the jury as to the burden of proof.
The trial judge had stated that the accused should be acquitted if it was
“likely” that the alleged provocation could “probably” have triggered an
uncontrollable reaction on his part.[255]
In counsel’s submission, these words tended to place the burden of proof on the
accused. The Court of Criminal Appeal allowed the appeal on both grounds
but, unfortunately, neglected to explain how the trial judge should have
addressed the jury on the relevant matters.
4.18
In Kelly,[256]
the trial judge, having emphasised that the test of provocation in this
jurisdiction was subjective, went on to rely on passages from earlier
judgments, including those in MacEoin[257]
and Mullane,[258]
which contained traces of the objective test. Counsel for the appellant
argued that this left the jury with the impression that the test in Ireland was
at least partly objective in nature, notwithstanding reassurances to the
contrary from the trial judge. The Court of Criminal Appeal accepted that
the MacEoin formulation, while setting out the
law as to the correct standard to be applied with regard to provocation, was
cumbersome and confusing to juries. The Court accordingly allowed the
appeal and ordered a retrial.
4.19
The gravamen of the
appellant’s complaint in Kelly[259]
had been that the concepts of loss of self-control and proportionality are
mutually exclusive in the context of provocation: proportionality was said to
be irrelevant where a person loses his or her self-control and should only be
considered as “anterior and precedent to the loss of self-control.”[260]
Counsel for the prosecution replied that, from the perspective of the accused,
the Irish standard of provocation was the most liberal in the common law world;
and made it virtually impossible for the State to discharge the onus of
disproving the defence, ie, of establishing
beyond all reasonable doubt that the alleged provocation had not caused
the accused to lose self-control.[261]
4.20
Yet the Court of
Criminal Appeal declined to rule on the appropriateness of the subjective
approach in Ireland, relying instead on its previous decisions to the effect
that proportionality was relevant only to credibility and was not intended to
introduce an objective element into the law of provocation. The Court
stated:
“If the reaction of the accused in totally
losing his self control in response to the provocation appears to the jury to
have been strange, odd, or disproportionate that is a matter which they are
entitled to take into consideration in deciding whether the evidence on which
the plea of provocation rests is credible.”[262]
C
The People (DPP) v Davis: A Reappraisal of the Subjective Test
4.21
In People (DPP) v
Davis[263]
the Court of Criminal Appeal accepted the need for a re-examination of the
Irish approach to provocation, adding ruefully that “[i]t
is with some trepidation that the court ventures into [that] territory”.[264]
4.22
Mindful of the
background of inconsistent cases referred to above, the Court endeavoured to
identify the difficulties involved in applying the MacEoin[265]
test. Not least of these was the fact that “[i]n
Ireland … an extreme form of subjectivity was judicially accepted, to the
exclusion of the standards of the reasonable man from the principal question in
provocation. That standard, however, remained relevant on the question of
credibility.”[266] In
addition, the Court noted that “[t]he totally subjective criteria for the
defence of provocation had been criticised by a number of commentators who [had
expressed] concern that it places an exceptionally onerous burden on the
prosecution”;[267] and made
reference to the submissions of counsel for the prosecution in Kelly[268]
to the effect that “it would be almost impossible for the prosecution to
satisfy a jury that words or acts alleged by the defence to constitute
provocation were not reasonably capable of causing the accused to lose his
self-control.”[269]
4.23
Turning to the rules
and principles governing provocation, the Court of Criminal Appeal observed
that the plea had “changed greatly from its earliest manifestations at the
beginning of the common law era to the form in which it is presently found in
Ireland.”[270] In a
striking invocation of the early modern conception of the plea, the Court
remarked that provocation “was a concession to the acknowledged weaknesses of
human nature and in particular an acknowledgement … that there were specific
events calculated to rob a person of his self-control.”[271]
Finally, the Court drew attention to a shift of emphasis in the defence from
cause to effect – from the factors leading to a loss of self-control to the
psychological effects thereof, which it also identified as the motor behind the
judicial adoption in Ireland of an “extreme form of subjectivity”.[272]
4.24
As already indicated,
the Court in Davis[273] accepted
that the form of the provocation defence in Ireland “may, perhaps, require
restatement.”[274] In
this regard, it was noted that the policy considerations on which the defence
is based may change over time and that “[t]hese
considerations may dictate that the defence should be circumscribed or even
denied in cases where [allowing it would] promote moral outrage.”[275]
It was observed that factors less common at the time of MacEoin[276]
may now have an important bearing on the limits of the defence.
Citing McAuley and McCutcheon,[277]
the Court mentioned road rage and other comparable types of “socially repugnant
violent reaction”[278] as
examples of the sort of conduct that might be excluded from the ambit of the
plea on policy grounds. Again alluding to the classical roots of the plea
of provocation, the Court grounded its conclusion on this point on the
principle that society has a right to expect minimal self-control from its
members; although it was accepted that the elaboration of this principle was
beyond the scope of the instant appeal.[279]
4.25
While its recent
jurisprudence has been dominated by attempts to manage the transition from the
objective to the subjective test, the Court of Criminal Appeal has also had
occasion to comment on other aspects of the plea of provocation: viz, the obligation on the accused to raise the
defence by pointing to evidence of provocation; the requirement of immediacy;
and the meaning of loss of control.
4.26
Thus in Davis,[280]
the Court noted that the defence “does not arise automatically”:[281]
the accused must be able to show that provocation is a live issue; “the defence
must be raised, and not merely invoked.”[282]
This may be done either by direct evidence, which might include the accused’s
testimony, or by inference from the evidence as a whole. The Court
acknowledged that the burden on the accused is “not a heavy one”,[283]
as it involves a “low threshold”,[284]
but stated that before the issue is put to the jury the trial judge must
determine that there is sufficient evidence “suggesting the presence of all elements
required for the defence.”[285] A
similar view was expressed in People (DPP) v McDonagh.[286]
Counsel for the applicant contended that the subjective nature of the
defence could lead to the conclusion that, in light of a particular defendant’s
susceptibilities, the mere clicking of fingers amounted to provocation.
The Court accepted that this was conceivable but added that “even then the
evidence must be such as to give rise to the possibility that the accused may
have been so provoked into losing control of himself at the time for
provocation to go to a jury.”[287]
The same point arose more recently in People (DPP) v Doyle,[288]
where the Court of Criminal Appeal held that the trial judge was justified in concluding
that there was insufficient evidence of provocation for the matter to go to the
jury.
4.27
Similarly, there are
judicial dicta suggesting that other normative features of the defence
have been retained within the framework of the subjective test. For
example, in Kelly[289] the Court
of Criminal Appeal has reiterated the point that provocation involves a sudden
and complete loss of control:
“The loss of self-control must be total and the
reaction must come suddenly and before there has been time for passion to
cool. The reaction cannot be tinged by calculation and it must be genuine
in the sense that the accused did not deliberately set up the situation which
he now invokes as provocation. To justify the plea of provocation there
must be a sudden unforeseen onset of passion which, for the moment, totally
deprives the accused of his self-control.”[290]
4.28
Similar views had been
expressed in Davis[291] and the
foregoing passage was quoted in McDonagh,[292]
where the Court went on to state that “provocation has two main elements, an
act or series of acts of provocation (which may comprise in whole or in part of
things said) leading to a total loss of self-control at the time of the
wrongful act.”[293]
4.29
On the latter issue,
the Court has made it clear that the alleged loss of control must be such that
the accused is “not master of his mind”;[294]
it must be clear that he was not acting in a calculating or deliberate
manner. Loss of control therefore involves more than a mere loss of
temper[295] or the
condition of being “vexed”.[296]
4.30
These dicta serve
as important reminders that, the enervating influence of the subjective test
notwithstanding, many of the classic ingredients of provocation still have
purchase in Irish law. Thus, a mere assertion by the accused that there
was provocation will not of itself be sufficient to raise the defence: the
defendant must point to supporting evidence. Similarly, the defence
appears to involve a sudden and immediate loss of self-control which has not
been engineered by the accused’s conduct.
4.31
The position regarding
loss of self-control caused by intoxication is less clear. At common law,
the accused’s drunkenness was excluded from consideration when evaluating the
defence of provocation.[297] This
stance survived the change in the law in England and Wales wrought by the
decision in Camplin.[298]
It has been suggested that intoxication, being a transient state, is not
a personal characteristic and thus should not be taken into account when
determining the gravity of provocation.[299]
However, it has recently been held that the decision to exclude
intoxication from the scope of the plea is a matter of policy.[300]
Moreover, it has been accepted that addiction to an intoxicant, as
distinct from the fact of being intoxicated, is a relevant personal
characteristic in the context of provocation.[301]
4.32
The relationship
between provocation and intoxication awaits an authoritative ruling in Irish
law. Although intoxication was a factor in a number of the recent cases,
none of the decisions appears to have turned on that issue. The strict
logic of the subjective test suggests that the fact of intoxication, as it is
plainly relevant to the accused’s “circumstances”, could be taken into
account. As already indicated, this possibility was hinted at in Kelly[302]
where it was observed that, while the accused’s drunkenness would not be
sufficient to raise the defence of provocation, it might be a factor in the
situation.[303] The
policy question of whether intoxication should be a bar to a plea of
provocation thus remains unanswered in Irish law.
4.33
The foregoing review of
case law on provocation illustrates the difficulties surrounding the
interpretation and application of the MacEoin[304]
judgment.[305] The
fact that the trial judge in Kelly[306]
immediately granted leave to appeal is indicative of continuing judicial
uncertainty as to the correct interpretation of MacEoin.
Other cases highlight the difficulty of reconciling the liberal
implications of a subjective test with a range of important policy
considerations.
4.34
In People (DPP) v
Hennessy[307] the
defendant had been suspended from his job as manager of the Callan
Social Welfare Office on suspicion of having embezzled monies from the office
over a number of years. At sentencing stage Finnegan J opined that the
alleged provocation – a critical remark made by the deceased, the accused’s
spouse, followed by a slap across the face – appeared to be “of a very low
level”,[308] but had
allowed the issue to go to the jury. The jury subsequently found that
there had been a temporary and total loss of control at the time of the
killing. It was noted that the accused had suffered from very severe
stress when the embezzlement investigation began, but that he was responsible
for the stress thus created. A sentence of eight years’ imprisonment for
manslaughter was imposed.
4.35
Hennessy[309] typifies the difficulties associated with the
subjective test. The main difficulty is that of establishing the
appropriate evidential threshold before provocation can go to the jury and
whether a general threshold should be set for future cases. A related
matter concerns the range of factors which may be taken into account when
determining the evidential threshold and whether certain factors – such as
self-induced stress – should be excluded altogether. It will be recalled
that the prosecution in Kelly[310]
argued that, once the defence of provocation has been raised on the evidence,
the subjective test makes it almost impossible to disprove. Perhaps the
fact that the courts have recently emphasised that many of the classic
ingredients of provocation have survived the introduction of the subjective
test will lead to further consideration of other normative features of the
plea.
4.36
Arguably the judgment
in Davis[311] contains
the strongest criticism to date of the application of the MacEoin[312]
test in Ireland. There the Court of Criminal Appeal suggested that it may
be necessary to place limits on the way in which the defence is currently set
out, and that this might be done by focusing on the policy considerations that
have been eclipsed by the uncompromising nature of the Hibernian version of the
subjective test.
4.37
This chapter reviewed
the effects of the MacEoin[313]
decision on the Irish law of provocation. In that case, the Court of
Criminal Appeal departed from the traditional common law approach to the plea
and laid down a new subjective standard purged of the concept of the
“reasonable man”. Subsequent decisions have struggled with the meaning of
the MacEoin judgment. In particular,
difficulties have arisen regarding the status of the traditional requirement
that an accused’s response should be proportionate to the provocation.
Some normative features of the traditional test of provocation – such as the
requirement of a sudden and complete loss of self-control – nevertheless appear
to have survived the MacEoin revolution.
However, given the subjective nature of the test, the charge that it is
virtually impossible for the prosecution to rebut evidence of provocation once
the plea has been raised seems justified. As will be seen from the
comparative survey in the next chapter, Ireland would appear to be alone among
common law jurisdictions in having saddled itself with this dispensation.
5.01
In these islands
provocation is a partial defence to murder and, where successful, leads to a
conviction for manslaughter. However, in some jurisdictions, the defence
is not confined to murder, but is also available to attempted murder and
certain assault offences. Moreover, it is sometimes a complete defence.
This chapter examines the plea of provocation in other jurisdictions in order
to determine what possible changes and improvements might be made to its Irish
counterpart. The related defence of extreme emotional disturbance as
developed in the United States is considered separately at the end of the
chapter.
5.02
A variety of
differently worded statutory formulae govern the defence of provocation
worldwide.
5.03
In Canada the defence
is set out in the Canadian Criminal Code, the common law having been
codified in section 232 thereof, which provides:
“(1)
Culpable homicide that otherwise would be murder may be reduced to manslaughter
if the person who committed it did so in the heat of passion caused by sudden
provocation.
(2)
A wrongful act or insult that is of such a nature as to be sufficient to
deprive an ordinary person of the power of self-control is provocation for the
purposes of this section if the accused acted on it on the sudden and before
there was time for his passion to cool.
(3)
For the purposes of this section, the questions
(a)
whether a particular wrongful act or
insult amounted to provocation, and
(b)
whether the accused was deprived of
the power of self-control by the provocation that he alleges he received,
are
questions of fact, but no one shall be deemed to have given provocation to
another by doing anything that he had a legal right to do, or by doing anything
that the accused incited him to do in order to provide the accused with an
excuse for causing death or bodily harm to any human being.
(4)
Culpable homicide that otherwise would be murder is not necessarily
manslaughter by reason only that it was committed by a person who was being
arrested illegally, but the fact that the illegality of the arrest was known to
the accused may be evidence of provocation for the purpose of this section.”[314]
5.04
As can be seen from
section 232, Canadian criminal law, like Irish law, confines the defence of
provocation exclusively to murder, serving to reduce that offence to
manslaughter. It has been settled that provocation under Canadian law is
not applicable to attempted murder,[315]
nor is it a defence to a charge of assault, although it has been held that it
may be relevant thereto in terms of mitigation of sentence.[316]
5.05
Australian law
demonstrates numerous ways in which the defence may be applied. In four
of the six Australian states, and in the two self-governing Territories,
provocation is regulated by statute. The common law continues to apply in
the remaining two states, namely South Australia and Victoria.
5.06
In 1899, the Griffith
Code was adopted as the Queensland Criminal Code. Several
sections of that Code are relevant to provocation. Section 304 provides a
partial defence to murder:
“When a person who unlawfully kills another
under circumstances which, but for the provisions of this section, would
constitute murder, does the act which causes death in the heat of passion
caused by sudden provocation, and before there is time for the person’s passion
to cool, the person is guilty of manslaughter only.”
5.07
Sections 268 and 269 of
the Code provide a complete defence to assault offences:
“268(1) In this section –
‘provocation’, used with reference to an
offence of which an assault is an element, means and includes, except as
hereinafter stated, any wrongful act or insult of such a nature as to be
likely, when done to an ordinary person, or in the presence of an ordinary
person to another person who is under the person’s immediate care, or to whom
the person stands in a conjugal, parental, filial, or fraternal relation, or in
the relation of master or servant, to deprive the person of the power of
self-control, and to induce the person to assault the person by whom the act or
insult is done or offered.
(2)
When such an act or insult is done or offered by one person to another, or
in the presence of another to a person who is under the immediate care of that
other, or to whom the latter stands in any such relation as aforesaid, the
former is said to give to the latter provocation for an assault.
(3)
A lawful act is not provocation
to any person for an assault.
(4)
An act which a person does in
consequence of incitement given by another person in order to induce the person
to do the act, and thereby to furnish an excuse for committing an assault, is
not provocation to that other person for an assault.
(5)
An arrest which is unlawful is
not necessarily provocation for an assault, but it may be evidence of
provocation to a person who knows of the illegality.
269(1) A person is not
criminally responsible for an assault committed upon a person who gives the
person provocation for the assault, if the person is in fact deprived by the
provocation of the power of self-control, and acts upon it on the sudden and
before there is time for the person’s passion to cool, and if the force used is
not disproportionate to the provocation and is not intended, and is not such as
is likely, to cause death or grievous bodily harm.
(2)
Whether any particular act or insult is such as to be likely to deprive an
ordinary person of the power of self-control and to induce the ordinary person
to assault the person by whom the act or insult is done or offered, and
whether, in any particular case, the person provoked was actually deprived by
the provocation of the power of self-control, and whether any force used is or
is not disproportionate to the provocation, are questions of fact.”
5.08
Almost identically
worded provisions to sections 268 and 269 are to be found in sections 245 and
246, respectively, of the Western Australian Criminal Code which, like
its Queensland counterpart, is based on the Griffith Code. Section
281 of the Western Australian Code, like section 304 of the Queensland Code,
provides that provocation is a partial defence to murder.
5.09
In New South Wales
provocation is a partial defence to murder only. The law is set out in
section 23 of the Crimes Act 1900, which stipulates:
“(1)
Where, on the trial of a person for murder, it appears that the act or omission
causing death was an act done or omitted under provocation and, but for this
subsection and the provocation, the jury would have found the accused guilty of
murder, the jury shall acquit the accused of murder and find the accused guilty
of manslaughter.
(2)
For the purposes of subsection (1), an act or omission causing death is an act
done or omitted under provocation where:
(a)
the act or omission is the result of a loss of self-control on the part of the
accused that was induced by any conduct of the deceased (including grossly
insulting words or gestures) towards or affecting the accused, and
(b)
that the conduct of the deceased was such as could have induced an ordinary
person in the position of the accused to have so far lost self-control as to
have formed an intent to kill, or to inflict grievous bodily harm upon, the
deceased,
whether that conduct of the deceased
occurred immediately before the act or omission causing death or at any
previous time.
(3)
For the purpose of determining whether an act or omission causing death was an
act done or omitted under provocation as provided by subsection (2), there is
no rule of law that provocation is negatived if:
(a)
there was not a reasonable proportion between the act or omission causing death
and the conduct of the deceased that induced the act or omission,
(b)
the act or omission causing death was not an act done or omitted suddenly, or
(c)
the act or omission causing death was an act done or omitted with any intent to
take life or inflict grievous bodily harm.
(4)
Where, on the trial of a person for murder, there is any evidence that the act
causing death was an act done or omitted under provocation as provided by
subsection (2), the onus is on the prosecution to prove beyond reasonable doubt
that the act or omission causing death was not an act done or omitted under
provocation.
(5)
This section does not exclude or limit any defence to a charge of murder.”
5.10
Section 13 of the
Australian Capital Territory Crimes Act 1900 is drafted in similar
terms,[317] while section
160 of the Tasmanian Criminal Code also provides a partial defence to
murder.[318]
5.11
In the Northern
Territory, legislation provides for provocation as a partial excuse for
homicide, and as a complete defence for other offences, including assault
offences. Section 34 of the Criminal Code states:
“(1)
A person is excused from criminal responsibility for an act or its event if the
act was committed because of provocation upon the person or the property of the
person who gave him that provocation provided–
(a)
he had not incited the provocation;
(b)
he was deprived by the provocation of the power of self-control;
(c)
he acted on the sudden and before there was time for his passion to cool;
(d)
an ordinary person similarly circumstanced would have acted in the same or a
similar way;
(e)
the act was not intended and was not such as was likely to cause death or
grievous harm; and
(f)
the act did not cause death or grievous harm.
(2)
When a person who has unlawfully
killed another under circumstances that, but for this subsection, would have
constituted murder, did the act that caused death because of provocation and to
the person who gave him that provocation, he is excused from criminal
responsibility for murder and is guilty of manslaughter only provided –
(a)
he had not incited the provocation;
(b)
he was deprived by the provocation of the power of self-control;
(c)
he acted on the sudden and before there was time for his passion to cool; and
(d)
an ordinary person similarly circumstanced would have acted in the same or a
similar way.
(3)
A person is excused from criminal responsibility for the use of such force as
was reasonably necessary to prevent the repetition of a wrongful act or insult
as to be provocation for him provided –
(a)
he had not incited the wrongful act or insult;
(b)
an ordinary person similarly circumstanced would have acted in the same or a
similar way;
(c)
the force used was not intended and was not such as was likely to cause death
or grievous harm; and
(d)
the force used did not cause death or grievous harm.”
5.12
In Victoria, the matter
is still governed by the common law: provocation is a partial defence to
murder. Older authority to the effect that it also provided a qualified
defence to certain non-fatal offences has been rejected.[319]
5.13
In New Zealand, section 169 of the Crimes Act 1961 codified the
common law on provocation:
“(1)
Culpable homicide that would otherwise be murder may be reduced to manslaughter
if the person who caused the death did so under provocation.
(2)
Anything done or said may be
provocation if –
(a)
In the circumstances of the case it
was sufficient to deprive a person having the power of self-control of an ordinary
person, but otherwise having the characteristics of the offender, of the power
of self-control; and
(b)
It did in fact deprive the offender
of the power of self-control and thereby induced him to commit the act of
homicide.
(3)
Whether there is any evidence of
provocation is a question of law.
(4)
Whether, if there is evidence of
provocation, the provocation was sufficient as aforesaid, and whether it did in
fact deprive the offender of the power of self-control and thereby induced him
to commit the act of homicide are questions of fact.
(5)
No one shall be held to give
provocation to another by lawfully exercising any power conferred by law, or by
doing anything which the offender incited him to do in order to provide the
offender with an excuse for killing or doing bodily harm to any person.
(6)
This section shall apply in any case
where the provocation was given by the person killed, and also in any case
where the offender, under provocation given by one person, by accident or
mistake killed another person.
(7)
The fact that by virtue of this
section one party to a homicide has not been or is not liable to be convicted
of murder shall not affect the question whether the homicide amounted to murder
in the case of any other party to it.”
5.14
In Scotland,
provocation is governed by the common law. Traditionally Scots law has
restricted provocation to cases where the accused was subjected to serious
physical assault; trivial assaults and verbal taunts did not suffice to raise
the plea. Provocation is admitted as a partial defence to murder,
reducing that crime to culpable homicide (ie
manslaughter). It seems that provocation is regarded as negating the mens rea for murder.
In Fenning v HM Advocate,[320]
the trial judge had stated that “there would be an absence of wicked intent or
recklessness because the provocation provoked the act and deprived it of the element
of murderous intent which is the essence of murder.”[321]
The logic of the mens rea
approach is that provocation should reduce attempted murder to attempted
culpable homicide. However, the judicial consensus is that there is no
such crime and, in these circumstances, that the appropriate conviction would
be for some form of aggravated assault.[322]
Provocation is not a defence to assault or breach of the peace, but it is
relevant to sentence.[323]
5.15
The South African
approach to provocation should be briefly noted.[324]
Roman-Dutch law did not regard provocation as an excuse for criminal
conduct but admitted it as a factor in mitigation of sentence. The
introduction, in 1917, of a mandatory death sentence for murder prompted a
change in attitude by the South African courts. In R v Butelezi,[325]
the court accepted that section 141 of the Transkeian
Penal Code correctly stated the South African position, despite the fact
that, strictly speaking, that Code was confined to the Transkei
territory. Section 141 established a partial defence to murder broadly
similar to that which operates in most commonwealth jurisdictions: in
particular, the criterion adopted was the power of self-control of the ordinary
person. Eventually, support in the South African courts for this form of
provocation defence evaporated with the relaxation of the mandatory death
sentence.
5.16
However, provocation
was to assume a different, but no less significant, role in South African law
following the decision in S v Chretien.[326]
There it was held that intoxication could negate criminal capacity or
voluntariness. The question arose whether provocation would have the same
effect, thus giving rise to a complete acquittal. Judicial pronouncements
on the question suggest an answer in the affirmative. In S v Van Vuuren,[327]
it was suggested, obiter, that provocation or severe mental or emotional
stress may deprive an accused of criminal capacity, ie
the ability to realise what is happening or to appreciate the wrongfulness of
his or her conduct. In S v Campher,[328]
it was confirmed that non-pathological conditions could support a defence of
lack of criminal capacity. Significantly, it has been accepted that in
cases of non-pathological incapacity the burden of proof rests with the
prosecution.[329]
5.17
The foregoing cases
resulted in convictions, but a plea of lack of capacity based on provocation
and/or emotional stress was successfully raised in S v Arnold.[330]
The accused was charged with the murder of his wife. He had been
subjected to severe emotional pressures during his marriage and on the occasion
in question he had had an argument with the deceased. At the material
time, he had a pistol in his possession, which it seems he required for work
which involved handling large sums of money. During the course of the
argument, he gesticulated with the gun and at some stage it discharged.
He admitted that he could not recall reloading the gun but a second shot was
fired which struck and killed the deceased. The court accepted the
accused’s version of events and psychiatric evidence was adduced as to the
effect of the emotional stress on him. It was stated by the psychiatrist
who testified that the accused’s mind was “flooded” with emotions that could
have interfered with his capacity to tell right from wrong and that he acted
subconsciously at the crucial time. On the strength of this evidence, the
court ruled that there was a reasonable doubt as to whether the accused acted
consciously and with criminal capacity; accordingly he was acquitted.
5.18
It seems that the South
African courts have not drawn a clear distinction between provocation and
emotional stress. Provocation is regarded as being caused by human
beings, whereas emotional stress can be the product of an accumulation of
events, rather than an isolated incident, and can result from human conduct or
surrounding circumstances. It has been suggested that stressful
conditions that cause an accused to lose criminal capacity could include
“insulting or oppressive conduct of another person,… pre-menstrual stress
suffered by a woman or … overwhelming and debilitating social conditions.”[331]
Ultimately, the issue is not the source of the stress but its intensity and
whether it deprived the accused of capacity or caused him or her to act
involuntarily.
5.19
Academic commentators
in South Africa have been critical of the approach adopted by the courts.
It has been suggested that policy considerations demand that provocation or
emotional stress should not provide a complete defence to murder. In
particular it has been argued that the accused in Arnold[332]
acted voluntarily when he fired the fatal shot and that his general conduct
during the episode was sufficiently negligent to support a conviction for
culpable homicide.[333]
5.20
The Commission
recommends that the plea of provocation should operate as a partial defence to
murder and should not apply beyond the confines of that offence. The
Commission suggests that section 169 of the New Zealand Crimes Act 1961 may
provide an appropriate template for legislative reform in this jurisdiction.[334]
B
Approaches – Objective or Subjective?
5.21
Ireland is the only
jurisdiction in the common law world which employs a purely subjective test for
provocation. All other jurisdictions have adopted some form of objective
text.
5.22
Thus Canadian law
maintains an objective approach with subjective elements built into it.
Under Canadian law there must be evidence of conduct that would have caused an
ordinary person to be deprived of self-control and there must be some evidence
that the accused actually lost self-control. In this respect, the
governing criterion is essentially the same as that in DPP v Camplin.[335]
The Canadian Supreme Court in R v Hill[336]
set out the rationale for the employment of the objective standard in Canada:
“It is society’s concern that reasonable and
non-violent behaviour be encouraged that prompts the law to endorse the
objective standard. The criminal law is concerned among other things with
fixing standards for human behaviour. We seek to encourage conduct that
complies with certain societal standards of reasonableness and
responsibility. In doing this, the law quite logically employs the
objective standard of the reasonable person.”[337]
5.23
This stance was
reiterated in R v Gibson[338]
where it was held on appeal that “[t]he objective test in
provocation serves to define the boundaries for the type of conduct upon which
the defence may be based. These boundaries reflect contemporary
standards.”[339] The
defence was said to act as a partial excuse for murder and to operate as a
“compassionate response to human frailty”.[340]
5.24
In R v Parent,[341]
McLachlin CJC identified the requirements of the
defence as:
“(1) a wrongful act or insult that would have
caused an ordinary person to be deprived of his or her self-control; (2) which
is sudden and unexpected; (3) which in fact caused the accused to act in anger;
(4) before having recovered his or her normal control”.[342]
5.25
In this respect, McLachlin CJC reiterated the opinion of the Supreme Court
of Canada delivered some years earlier in R v Thibert.[343]
In that decision, there had been support for a broadening of the
scope of the defence. Cory J, delivering the majority judgment, stated
that “all the relevant background circumstances should be considered”[344]
which could embrace “the background of the relationship between the deceased
and the accused”; earlier insults delivered by the deceased which eventuated in
the final act of provocation might be included in this evaluation.[345]
Cory J also expressed his approval of two earlier decisions of the provincial
courts where background circumstances were considered relevant to the question
of provocation.[346]
Nevertheless, this expansion of the frame of reference should not be
taken to involve a departure from the predominantly objective nature of the
test employed in Canadian law. In R v Friesen,[347]
the Alberta Court of Appeal rejected the argument that the “ordinary person”
ought to be taken to have all the life experiences of the accused: that
approach, the Court believed, would amount to a subjective test in all but
name.
5.26
As mentioned above, the
Canadian standard contains both subjective and objective elements, with the
result that those characteristics of the accused which bear on the gravity of
provocation may be taken into account. Characteristics relating to
self-control, however, are excluded from consideration. Thus in Hill[348]
Dickson CJC stated that “particular characteristics that are not peculiar
or idiosyncratic can be ascribed to an ordinary person without subverting the
logic of the objective test of provocation.”[349]
Dickson CJC recommended leaving the question of which characteristics the
jury should take into account to the “‘collective good sense’ of the jury.”[350]
However, eschewing the decision in Camplin,[351]
Wilson J argued that, while age could be taken into account in assessing the
self-control of the ordinary person, sex was an inadmissible factor. In
her view, the demands of equality were such that the sex of the accused should
not have a bearing on the question of self-control: men and women were to be
held to the same standard of self-control.[352]
5.27
The range of statutory
provisions governing provocation in Australia has been outlined above.
Despite the variety of legislative formulations, the High Court of Australia
can be seen in effect to have harmonised the law in the different states.
In Stingel v R,[353]
the Court announced that the modified objective approach, including the Camplin[354]
distinction regarding personal characteristics, applies also in
Australia. The Court felt that the objective test could not be applied in
a vacuum; regard should also be had to the characteristics, attributes and personal
history of the accused when assessing the gravity of the provocation. The
Court observed:
“[T]he content and extent of the provocative
conduct must be assessed from the viewpoint of the particular accused.
Were it otherwise, it would be quite impossible to identify the gravity of the
particular provocation. In that regard, none of the attributes or
characteristics of a particular accused will be necessarily irrelevant to an
assessment of the content and extent of the provocation involved in the relevant
conduct. For example, any one or more of the accused’s age, sex, race,
physical features, personal attributes, personal relationships and past history
may be relevant to an objective assessment of the gravity of the particularly
wrongful act or insult.”[355]
5.28
Importantly, the Court
accepted that, while the enumerated characteristics might provide the context
in which to determine the issue of gravity, the question of self-control was to
be assessed from the perspective of the ordinary person. The exception to
this rule was that the age of the accused may be considered relevant to the
question of self-control. On this point, the Court adopted the broadly
similar views expressed by Wilson J in the Canadian decision in Hill.[356]
5.29
In Masciantonio
v The Queen[357] the High
Court of Australia reiterated its preference for the modified objective
approach:
“The provocation must be such that it is
capable of causing an ordinary person to lose self-control and to act in the
way in which the accused did. The provocation must actually cause the
accused to lose self-control and the accused must act whilst deprived of
self-control before he has had the opportunity to regain his composure.”[358]
5.30
The principles
enunciated in Stingel[359]
and Masciantonio[360]
have been applied in a number of cases. In Green v R,[361]
the appellant killed the deceased whom he alleged had made sexual advances
towards him. The High Court of Australia held that the trial judge had
erred in refusing to allow the appellant to adduce evidence of his particular
sensitivity to sexual assault, which, it was said, was the result of a family
history in which his father had sexually abused his sisters. That
evidence would explain the gravity of the provocation to the appellant.
The Supreme Court of Victoria has also confirmed the applicability of the Camplin[362]
distinction:
“The objective test is whether the provocative
words or conduct, measured in gravity by reference to the personal situation of
the accused, could have caused an ordinary person to lose self-control to the
extent that the accused did”.[363]
5.31
Unlike the statutory
provisions in other jurisdictions, the relevant New Zealand legislation
expressly stipulates that the accused’s characteristics should be taken into
account: provocation is to be evaluated from the perspective of “a person
having the power of self-control of an ordinary person, but otherwise having
the characteristics of the offender”.[364]
R v McGregor[365] was the
first case to come before the New Zealand courts following the enactment of the
Crimes Act 1961. The New Zealand Court of Appeal observed that the
obvious purpose of the legislation was to mitigate the harshness of the
unqualified objective test by taking account of the accused’s characteristics
in evaluating the sufficiency of provocation. This, the Court noted,
involved the merging of “two discordant notions”,[366]
namely the objective test and the accused’s personal characteristics. The
Court took the view that characteristics taken into account must be “definite
and of sufficient significance to make the offender a different person from the
ordinary run of mankind.”[367] Such
factors would include physical and mental characteristics and “such more
indeterminate attributes as colour, race and creed”.[368]
On the other hand, the Court excluded from consideration factors such as
a suspicious disposition, short temper and transitory states such as a mood of
depression or excitability. The Court went further in a passage that was
subsequently to prove controversial:
“Special difficulties, however, arise when it
becomes necessary to consider what purely mental peculiarities may be allowed
as characteristics. In our opinion it is not enough to constitute a
characteristic that the offender should merely in some general way be mentally
deficient or weak-minded. To allow this to be said would, as we have
earlier indicated, deny any real operation to the reference made in the section
to the ordinary man, and it would, moreover, go far towards the admission of a
defence of diminished responsibility without any statutory authority in this
country to sanction it. There must be something more, such as provocative
words or acts directed to a particular phobia from which the offender
suffers. Beyond that, we do not think it is advisable that we should
attempt to go.”[369]
5.32
These remarks were obiter
and later decisions in New Zealand have moved away from the restrictions
suggested in McGregor.[370]
In R v McCarthy,[371]
the Court of Appeal welcomed this development and expressed the view that McGregor
introduced “needless complexity”[372]
to the law. Accordingly, the Court felt that characteristics such as the
accused’s race, age, sex, mental deficiency or “a tendency to excessive
emotionalism as a result of brain injury”[373]
could be taken into account. In McCarthy, it was held that the
hypothetical “reasonable man” was to be endowed with the accused’s brain damage
and the personality consequences which that condition may have had apart from
its effect on the power of self-control.
5.33
The dicta in McGregor[374] restricting the relevance of mental
infirmity in relation to provocation were influenced by the fact that New
Zealand law does not recognise a defence of diminished responsibility: the
Court was concerned not to introduce a version of that defence without
legislative sanction. The Court felt no such inhibition when it returned
to the subject in McCarthy[375] where it was accepted that the status quo could
accommodate diminished
responsibility “within a limited field”.[376]
5.34
In R v Campbell,[377]
the Court of Appeal in effect held that the Camplin[378]
distinction applied in New Zealand. There was evidence in that case that
a homosexual advance made to the accused had triggered a “flashback” in which
memories of repeated sexual abuse during childhood were recalled. The
Court of Appeal held that the “flashback” characteristic should be taken into
account in assessing the gravity of the provocation to the accused but should
be ignored when considering the ordinary person’s capacity for self-control, a
view it believed to be in harmony with the law in England and Wales (in its
pre-Smith[379] guise) and
in Australia.
5.35
In R v Rongonui,[380]
the Court of Appeal returned to the distinction between characteristics going
to gravity and self-control respectively. The appellant was a highly
dysfunctional individual with a history of family violence and sexual abuse,
personality disorders, parenting difficulties and a chaotic lifestyle that was
characterised by abusive relationships. Her appeal against a conviction
for murder was allowed on admissibility of evidence grounds. However, the
Court of Appeal also considered the issue of provocation and, in particular,
the relevance of her personal characteristics to that defence. The
majority concluded that her personal traits could be considered in relation to
the gravity of the provocation offered but were not relevant to the question of
self-control. In reaching this conclusion, the majority judges focused on
the reference in section 169 of the Crimes Act 1961 to the power of
self-control of an ordinary person. In their view, that section provided
the overriding criterion on which an evaluation of the defence was to be based
and did not facilitate a general reduction in the standard of
self-control. Moreover, while the majority accepted that the provocative
conduct need not be directed at the characteristic in question, they agreed
that there had to be a connection between the two. Tipping J, who spoke
for the majority, provided a good explanation of the Camplin[381]
distinction:
“The only possible way under the statute in which
this ordinary power of self-control can be modified is if the provocation has
some relationship to the characteristic which allows the accused to say: This
provocation was graver for me with this characteristic than it would have been
for a person without the characteristic, not because I have generally lowered
self-control, but because of the nature of the provocation for me with my
characteristic. Therefore, says the accused, with my characteristic and
the resulting gravity of the provocation, even ascribing to me as you must the
power of self-control of an ordinary person, the provocation I received was
sufficient to deprive me of my self-control. While as was said in McCarthy,
the concept of the provocation having to be directed at the characteristic may
be thought unhelpful, the statute inevitably requires there to be a sufficient
relationship between the characteristic and the provocation. A
characteristic which produces only a general lowering of the power of
self-control is not enough, unless there is in addition a more specific
connection between the provocation and the characteristic.”[382]
5.36
Elias CJ and Thomas J
delivered dissenting judgments. Elias CJ felt that the Camplin[383] distinction is “highly artificial,”
“over-subtle” and that it made the “application of the law of provocation
complex” and “uneven.”[384] She
pointed to the fact that other judges and academic commentators had
acknowledged that the distinction is artificial and unsatisfactory in
application. She refused to apply the distinction on the grounds that the
language of section 169 of the New Zealand Crimes Act does not itself
differentiate between characteristics going to self-control and those relating
to sufficiency of provocation.
5.37
The observations of the
majority in Rongonui[385] correspond with the approach adopted by the Privy Council in Luc Thiet Thuan v The Queen.[386]
As was noted in Chapter 3, the House of Lords took a different view in
its recent decision in Smith[387]
where it held that evidence of mental infirmity was relevant to the
questions of gravity and self-control alike.[388]
While the full effect of Smith awaits judicial clarification, the
decision undoubtedly marks a departure from Camplin,[389]
at least as far as mental infirmity is concerned. In R v Makoare,[390]
the New Zealand Court of Appeal was asked to reconsider its decision in Rongonui in light of the House of Lords’ pronouncements
in Smith. However, the Court unanimously refused to resile from its ruling in Rongonui
on the grounds that that decision had resolved “long-standing differences of
opinion”.[391]
5.38
Despite a proliferation
of differently worded provisions on the subject, there is a remarkable
consistency of approach to provocation in Canada, New Zealand and
Australia. The courts in those jurisdictions have adopted the modified
objective test as the appropriate standard. Moreover, they have accepted
the Camplin[392]
doctrine that the personal traits of the accused are relevant to the assessment
of the gravity of provocation, but have preserved the normative element of the
traditional defence by demanding that the accused exercise the power of
self-control of the ordinary person. Given the decision in Smith,[393]
the current status of Camplin is somewhat
uncertain in England and Wales, yet the preponderance of commonwealth
jurisprudence suggests that its authority is not in doubt in most common law
jurisdictions. In Makoare[394]
the New Zealand Court of Appeal was not persuaded by the argument that
harmonisation with the law of provocation in England and Wales was desirable
and expressed the view that, if such standardisation was felt to be necessary,
Australian developments would provide a more useful template on which to model
the law!
5.39
The New Zealand
experience has special relevance for Ireland:[395]
there is no defence of diminished responsibility in New Zealand. Although
the Court of Appeal in Makoare accepted that
the relevant statutory provisions accommodated a limited version of diminished
responsibility, it concluded that it lay beyond the judicial sphere of
competence to make further provision for the matter by adopting Smith.[396]
That decision, the Court argued, was based on the actual existence of
a defence of diminished responsibility in English law.
5.40
The Commission
recommends the adoption of a justification-based model of the plea of
provocation. The recommendation is designed to ensure that an accused’s
personal characteristics may be taken into account insofar as they affect the
gravity of provocation, but must be excluded when assessing the power of self
control.[397]
C
The Objective Approach in a Multicultural Society
5.41
The objective approach has traditionally been based on the notion of a
homogeneous society adhering to well-recognised customs and standards.
Accordingly, it has been criticised on the grounds that it incorporated the
values and attributes of the dominant groups in society: on this view, the
hypothetical reasonable or ordinary person is Caucasian, Anglo-Celtic and,
probably, male. Now that the objective test has been modified to
accommodate the accused’s personal characteristics, the extent to which
cultural traits that markedly depart from the societal norm should be taken
into account must be considered, along with the related issue of whether such
factors may be considered relevant to the question of self-control (as well as
that of gravity of provocation). It might be contended that the
traditional concession to human infirmity would be diluted if the law
overlooked significant cultural factors that may have influenced the accused’s
capacity to control his or her behaviour. It is not difficult to imagine
circumstances in which a particular cultural sub-group would treat a gesture or
taunt, which the majority might consider trivial, as highly provocative.
It is also conceivable that, when provoked, members of a given sub-group might
display a lower threshold of self-control than that of the ordinary
person. Should allowance not be made for cultural characteristics that
differentiate the accused from the mainstream of society? The challenges posed
by multiculturalism have not been faced by the Irish courts, but the logic of
the subjective test appears to be that the accused’s cultural traits should be
considered relevant. Indeed, Murphy J’s dissenting judgment in Moffa v The Queen,[398] which influenced the Court of Criminal Appeal’s decision in MacEoin,[399]
was based on a concern to accommodate the heterogeneous nature of Australian
society. In that judge’s view, it was not enough to modify the objective
test so to establish different standards for different groups. That
course would lead to unequal treatment. The only realistic option was
therefore a radically subjective approach in which each person’s traits can be
evaluated individually.
5.42
Murphy J’s preference
for a purely subjective test stands alone in commonwealth jurisprudence.
Courts in Canada and Australia have not been persuaded to alter the law along
the lines he suggested. In R v Ly[400]
the accused was a recent immigrant to Canada from Vietnam. He suspected
his common law wife of infidelity. On the night of the fatal incident his
wife refused to explain her whereabouts, saying to the accused, “[i]t’s none of your
business”. At this point the accused killed her. At trial he
adduced evidence that in Vietnamese culture a wife’s adultery would be a source
of great dishonour to her husband and would be considered a serious
psychological blow to the average Vietnamese male. The British Columbia
Court of Appeal held that the accused’s ethnic background was not relevant to
the issue of self-control. The test was whether an ordinary person, not
an ordinary Vietnamese male, would have been provoked in the circumstances.
5.43
In some Australian
cases[401] juries
have been directed on the basis that characteristics such as race, ethnicity
and religion go to both gravity and self-control.[402]
However, doubts have been cast on the correctness of those rulings by the
decision in Stingel,[403]
where the High Court concluded that the characteristics of the accused are only
relevant to gravity of provocation. Subsequent to that decision, the
Supreme Court of the Northern Territory was faced with the question of the
accused’s ethnicity in R v Mungatopi.[404]
In that case, the Court stated that the ordinary person test was not
“intended to be applied in a vacuum and without regard to such of the accused’s
personal characteristics, attributes or history as served to identify the
implications and to affect the gravity of the particular wrongful act or
insult.” The Court referred to the ordinary Aborigine but it was left
unclear whether that feature was considered relevant to the question of
self-control as well as to that of gravity.[405]
In Masciantonio,[406]
the High Court reiterated the view that the relevance of the accused’s personal
characteristics is confined to the question of gravity of provocation.
The general judicial consensus is that factors such as ethnicity and race do
not operate to shape or alter the standard of ordinary self-control.[407]
The courts have been resolute in emphasising that the test of provocation
remains objective and despite modification, that it serves as a normative
standard reflecting the minimum level of self-control demanded by society
beyond which human frailty will not be excused.
5.44
The decision in R v Baraghith[408]
provides an example of the current thinking of the Australian courts on the
relevance of ethnic and cultural traits. In that case, the Egyptian-born
accused was convicted of the murder of his Australian wife from whom he had
separated after one year of marriage. He ascribed the cause of their
marital difficulties to “cultural problems and colour and religious differences
and the feminism of the deceased”. He testified to the effect that he was unable
to accept the fact that she would stay out late at night and associate with
men. A week before the killing he stood outside her bedroom and witnessed
her having sexual intercourse with another man. On the day of the
killing, his wife came to his residence and an argument ensued during which she
directed verbal taunts at him. He struck her and she retaliated by
hitting him repeatedly. It was at this point, according to the accused,
that he lost control and killed the deceased. It was argued that the
trial judge erred in failing to refer to the impact the deceased’s conduct
would have had on a person of the accused’s background. The New South
Wales Court of Appeal upheld the conviction for murder. Samuels JA (Loveday J concurring) noted that there was no evidence
which suggested that the wife’s conduct was the result of perceived cultural or
religious differences: there was no evidence that her conduct was particularly
provocative towards him as an Egyptian or as a Muslim. The majority
considered that the decision in Stingel[409]
had settled the law in cases of this kind:
“It is therefore clear … that, to paraphrase
what was said in Stingel, the content and
extent of the provocative conduct must be assessed from the viewpoint of the
particular accused although particular characteristics relevant to that
assessment must be ignored when determining whether that conduct could have
induced the response to which the accused resorted. Hence, when
considering the formula ‘an ordinary person in the position of the accused’ the
words ‘in the position of the accused’ [in section 23 of the Crimes Act 1900
(New South Wales)] so far as they make relevant attributes or characteristics
of a particular accused do so only in assessing the gravity of the alleged
provocation and are to be ignored in deciding whether the accused’s response
was or was not that of an ordinary person.”[410]
5.45
Leave to appeal was
refused by the High Court of Australia on the grounds that the New South Wales
court had correctly applied Stingel.[411]
5.46
While the search for a
culturally sensitive test of provocation is understandable, it does not entail
the conclusion that the standard of ordinary self-control should be
diluted. It is one thing to acknowledge that an insult might prove to be
an especially grave provocation to a particular accused by virtue of his or her
ethnic background. It is quite another to allow that characteristic to
shape the standard of self-control to which the accused is to be held. It
is submitted that the arguments from equality advanced in support of the
modification of the self-control element of the test in order to accommodate
cultural diversity are unconvincing. It is perhaps significant that,
while both Murphy and McHugh JJ contended, in Moffa,[412]
that the objective test would bring about inequality, they proposed varying
solutions to this problem. Murphy J unambiguously opted for the
subjective test and suggested that a modification of the objective test which
would incorporate the varying standards of different groups would itself be
unequal. True equality, in his view, demanded that each individual be
assessed on the basis of all his or her characteristics. McHugh J, on the
other hand, veered towards the modification of the objective test that Murphy J
rejected. However, these solutions themselves run into problems from the
perspective of equality. They are apt to result in a situation where
different citizens are held to different standards of self-control on the basis
of their race, ethnicity, religion or other relevant characteristic. The
point might also be made that such an approach opens up the possibility of
racial stereotyping, an outcome which scarcely accords with the principle of
equality. A further difficulty with a test of provocation predicated on
the concept of cultural diversity is that the traits relied on by an accused
might be socially repugnant. Should the law be required to accommodate
misogynist views or racist attitudes in the name of cultural pluralism?
5.47
The Commission
recommends that issues of culture and ethnicity, insofar as they might be said
to affect the issue of self-control, should be excluded from consideration
under the plea of provocation.[413]
D
The Wrongful Act Requirement
5.48
At common law,
provocation had to emanate from some form of unlawful act such as an assault.[414]
This was the logic of the older view that the defence was rooted in partial
justification. Some time ago, it was held in Australia that the act in
question must be one that is likely to provoke a breach of the peace.[415]
In addition, a number of statutory formulae governing the plea of provocation
require “a wrongful act or insult.”[416]
Correspondingly, some codes stipulate that certain lawful acts, such as
self-defence or a lawful arrest, are incapable of amounting to provocation.[417]
However, nowadays it is clear that the defence is less narrowly construed and
that wrongful conduct is not confined to the realms of the criminal or the tortious.
5.49
In Thibert,[418]
the Canadian Supreme Court interpreted the wrongful act or insult requirement
to entail, inter alia, “injuriously contemptuous speech or
behaviour;… scornful utterance or action intended to wound self-respect; an
affront; indignity.”[419] The
Court held that, for the purposes of provocation, an act may be wrongful if it
is not authorised by the law; and that provocative conduct need not necessarily
be specifically prohibited by law. A broadly similar conclusion has been
reached in Australia, albeit in the context of non-fatal force, where the Codes
in the Northern Territory, Queensland and Western Australia require a “wrongful
act or insult”: it has been held that “wrongful” is not confined to acts that
are contrary to law but includes conduct that is wrong by the ordinary
standards of the community.[420]
5.50
The Commission
believes that the plea of provocation should not entail a requirement that the
deceased must have acted “unlawfully”; it should be enough that the provocation
was unacceptable by the ordinary standards of the community.[421]
5.51
In Canadian law words are
capable of amounting to provocation. A similar rule has long obtained in
New Zealand by virtue of section 184 of the Crimes Act 1908 (now section
169 of the Crimes Act 1961). Words are not normally admitted as
provocation in Victoria and South Australia where the common law continues to
prevail. In Moffa[422]
(which originated in South Australia), Barwick CJ
stated that mere words could not amount to provocation unless they are of a
“violently provocative character.”[423]
In the other Australian jurisdictions where the law on provocation is governed
by statute, words are capable of providing the necessary provocation.
5.52
In Scotland, the
general rule is that words on their own cannot amount to provocation.
“Scots law has traditionally set its face against allowing insulting words or
disgusting conduct to operate as provocation.”[424]
In Cosgrove v HM Advocate[425]
the trial judge held that there was no sound basis for treating words of
insult, taunts or humiliation as being capable of amounting to
provocation:
“Words of insult, however strong, or any mere
insulting or disgusting conduct, such as jostling, or tossing filth in the
face, do not serve to reduce the crime from murder to culpable homicide.”[426]
5.53
However, there is one
important exception in Scots law to the general rule that insults cannot
provide provocation in this context – the venerable common law exception of
adultery:
“It has long been accepted in our law that a
husband who finds his wife committing adultery and kills her in an immediate
reaction to his discovery is entitled to plead provocation. It is also
well settled that the same applies if, instead of actually finding his wife
committing adultery, the husband is told by his wife that she has committed
adultery.”[427]
5.54
It is also clear that
Scots law recognises “that a person who is told of another’s infidelity may be
swept with sudden and overwhelming indignation which may cause him to lose
control and react violently.”[428]
This special rule in Scottish law has been extended to apply to any
relationship in which there is an expectation or obligation of fidelity: it
applies to unmarried couples[429] and to
homosexual relationships.[430]
5.55
The Commission
recommends that insulting words and gestures which are unacceptable by the
ordinary standards of the community should be capable of amounting to
provocation for the purposes of the plea.[431]
5.56
Consideration of the
source of provocation raises the question of the rationale underlying the
defence. Viewed as a partial justification, the defence should, strictly
speaking, be available only where the deceased was the author of the
provocation. This was the general rule at common law[432]
and it has been preserved in the Criminal Code of the Northern Territory[433]
of Australia and in the New South Wales Crimes Act.[434]
On the other hand, an excusatory rationale would accommodate provocation
emanating from sources other than the victim.
5.57
Authority in a number
of jurisdictions reflects the excusatory rationale. In R v Manchuk,[435]
the Supreme Court of Canada affirmed the Ontario Court of Appeal’s decision that
provocation need not come from the victim: it was enough that the accused
believed that the victim had participated in the provocation, regardless of
whether his belief was reasonable or not.
5.58
Two decisions of the
Supreme Court of Victoria are also particularly relevant in this context.
R v Terry[436] was
concerned with whether provocation was available to an accused who was not the
direct target of the provocation. In this case, the conduct by the
deceased was directed towards the sister of the accused (the sister also being
the wife of the deceased) in the presence of the accused:
“[T]he mere fact that the provocation was not
offered by the deceased to the accused, but was offered to the deceased’s wife
and the accused’s sister, does not prevent the operation of the principle that
provocation will reduce murder to manslaughter provided that the provocation
was offered in the presence of the accused, and provided all the other elements
of provocation are present.”[437]
5.59
The second case, R v
Kenney,[438] considered
whether a mistaken belief on the part of the accused that the victim had been
the source of the provocation (when, in fact, it was another) was sufficient to
ground the defence. The Court referred to several conflicting authorities
and stated that “[t]hose who suggest that mistake will avail are really
challenging the supposed fundamental rule that provocation must emanate from
the victim by suggesting that it is qualified”.[439]
Brooking J noted that the conflicting rationales of the defence, those of
justification and excuse, were directly relevant to cases of this kind.
He posed the question whether, if the law’s concern is for human frailty (the
excuse rationale) and not with tit-for-tat retaliation (the justification
rationale), there should be any general rule that the provocation must emanate
from the victim? “On this view, why should not provocation by any person
be available in respect of any victim, given that there is the necessary causal
connection between the provocation and the act causing death.…”[440]
Relying partly on the Canadian case of Manchuk,[441]
it was held that the mistaken belief in question does not have to be a
reasonable one: “[p]rovocation cannot be relied on
unless the victim either was responsible for it or was believed by the accused
to be responsible for it.”[442]
5.60
The Canadian and
Victorian decisions in point have analogues in England and Wales and in
Ireland. R v Davies[443]
would seem to indicate that provocation does not have to emanate directly from
the deceased, but may come from other sources; however, it should be noted that
the deceased in Davies was partly implicated in the provocation.
Similarly in Ireland the Court of Criminal Appeal has recently suggested that
provocation might emanate from a third party: People (DPP) v Doyle.[444]
Indeed the Irish rule in this regard may be more permissive than its
English counterpart. In People (DPP) v Hennessy,[445]
it appears that “the surrounding circumstances” leading to the accused killing
his wife were regarded as sufficient for the purpose of invoking the defence.[446]
5.61
Under section 169 of
the New Zealand Crimes Act 1961, provocation must come from the person
killed, save in the situations of mistaken identity or accident coming within
section 169(6) of that Act. Moreover, according to New Zealand law, the
judge must rule on the issue of whether there is enough evidence of provocation
to enable the defence to be left to the jury.
5.62
The Commission
recommends that the plea should be available only if (a) the deceased is the
source of the provocation or (b) the accused, under provocation given by one
person, by accident or mistake kills another.[447]
5.63
Jurisdictions differ as
to the range of restrictions affecting the availability of the defence of
provocation.
5.64
At common law, conduct
amounting to provocation must occur within the sight or hearing of the accused.[448]
This is known as the rule against hearsay provocation. In R v Arden,[449]
the accused’s partner told him that the deceased had raped her in an adjoining room
and substantiated her allegation by showing the accused her torn
undergarments. The accused confronted the deceased who denied the
allegation, whereupon the accused killed him. The defence was
rejected. The Court explained that, where an accused has been informed of
an incident which he did not directly witness, there is “nothing tangible” on
which he can be said to have acted.[450]
The rule requiring presence has now been modified by decisions which accept
that evidence of a history of provocative conduct, some of which might not have
occurred in the accused’s presence, may be considered by the jury.[451]
However, the full extent of the resultant modification is uncertain and legislative
clarification has been recommended.[452]
5.65
The Commission
recommends that hearsay provocation should not be excluded from the ambit of
the plea.[453]
5.66
Self-induced
provocation is provided for in some of the Australian Criminal Codes
(Queensland, Western Australia, Northern Territory) and it has been held in
several cases that the accused may not rely on provocation where the deceased’s
allegedly provocative acts were incited by the accused in the first place.[454]
It is unclear at common law whether self-induced provocation precludes
consideration of the defence of provocation.[455]
There is no reason to suppose that the Irish approach to the defence would
exclude it from consideration.
5.67
The Commission
recommends that conduct incited by the accused should not count as provocation
for the purposes of the plea.[456]
5.68
Given the subjective
nature of the Irish approach, there is no reason in principle to suggest that
an intoxicated accused would automatically be precluded from raising the defence.[457]
In the context of the objective standard obtaining in the other common
law jurisdictions, intoxication automatically precludes the possibility of
raising the defence. It is established in England,[458]
Canada,[459] Australia[460]
and New Zealand[461] that the
objective test, even in its modified form, connotes the ordinary or reasonable sober
person. The traditional explanation for the exclusion of intoxication
was that, being a transitory state, intoxication lacks the degree of permanence
necessary to amount to a “characteristic” that might be attributed to the
ordinary person. More recently, the intoxication rule has been explained
as being grounded in public policy concerns[462]
and as being “traditional and pragmatic.”[463]
5.69
The Commission
recommends that an accused’s state of intoxication should not be taken into
account when assessing the power of self-control of the ordinary person.[464]
H
Extreme Emotional Disturbance
5.70
The law of provocation
in the United States of America falls broadly within the common law mainstream.[465]
Provocation typically operates as a partial defence to murder and the
reasonable person standard is adopted as the appropriate criterion.
Generally speaking, that standard is interpreted to exclude the accused’s
mental characteristics from consideration and, if anything, the United States
authorities evince an approach that is remarkably close to the pre-Camplin[466]
objective test, albeit that some decisions appear to have opened the way
for consideration of the accused’s personal characteristics within the
framework of the objective test.[467]
5.71
Broadly speaking,
changes to the law in the United States of America have assumed the form of the
Model Penal Code’s defence of “Extreme Emotional or Mental
Disturbance”. The defence is set out in section 210.3(1)(b) of the Model
Penal Code:
“(1) Criminal homicide constitutes manslaughter
when: … (b) a homicide which would otherwise be murder is committed under the
influence of extreme mental or emotional disturbance for which there is
reasonable explanation or excuse. The reasonableness of such explanation
or excuse shall be determined from the viewpoint of a person in the actor’s
situation under the circumstances as he believes them to be.”
5.72
This provision does not limit the events or conditions that might act as
a catalyst for the accused’s disturbed state. The focus of the defence is
on the accused’s feelings and to this end the provision incorporates an element
of subjectivity in that it allows the characteristics of the accused to be
taken into account. However, an objective dimension is also retained:
there must be a reasonable explanation for the accused’s mental or emotional
disturbance, and authority suggests that a “reasonable man” test should be employed in evaluating this
matter.[468]
If there is no reasonable explanation for the particular emotional state,
as judged from the perspective of a reasonable person in the accused’s
situation, the defence will not be available.[469]
5.73
The objective features of the defence have nonetheless been
significantly qualified by the Model Penal Code provision: the
reasonableness of the explanation for the accused’s disturbance is to be “determined from the viewpoint of a
person in the actor’s situation under the circumstances, as he believes them to
be.” The drafters of the Code provide an example of how this might
operate in practice: viz, “[A] man reasonably
but mistakenly identifies his wife’s rapist and kills the wrong person.”[470]
5.74
The Model Penal Code
provision occupies the middle ground between a regime which excludes
consideration of the accused’s personal characteristics, on the one hand, and
one permitting any form of emotional disturbance to operate by way of partial
excuse, on the other.[471] The
drafters have explained the intention behind the provision thus: courts should
take account of the accused’s “situation” (a term which they note is
deliberately ambiguous and sufficiently flexible to allow a range of factors to
be considered). The drafters have further observed that “personal
handicaps and some external circumstances [such as] blindness, shock from
traumatic injury, and extreme grief” ought to be taken into account but that
“idiosyncratic moral values” are excluded from consideration.[472]
The ultimate consideration should be whether the accused’s loss of
self-control is such that it can “arouse sympathy in the ordinary citizen.”[473]
5.75
The defence of extreme emotional disturbance has certain affinities with
that of diminished responsibility. Both are mitigating defences, reducing
murder to manslaughter. However, extreme emotional disturbance generally
applies where a mentally healthy person kills in circumstances of emotional
stress. In contrast, diminished responsibility typically applies to
defendants who are mentally abnormal but whose condition falls short of
full-blown insanity. There is a potential overlap between the two
offences. The accused’s “situation” in the extreme emotional disturbance
context might be interpreted to include his mental condition: this
interpretation might be thought to be reinforced by the wording of section
210.3(1)(b) which speaks of “extreme mental or emotional disturbance”.[474]
5.76
Versions of the defence of extreme emotional disturbance have been
enacted in a number of American states.[475] However, in some cases the
legislation excludes any reference to the accused’s “situation” or employs
other language that evinces a less subjective approach than that allowed by the
Model Penal Code provision. A number of states have created an
affirmative defence, ie one in which the
burden of proof rests with the accused. Some states also exclude the
defence where the accused was at fault in bringing about the events that
triggered his or her condition.
5.77
The Commission does
not recommend the introduction of a defence of Extreme Emotional or Mental
Disturbance in lieu of the plea of provocation.[476]
5.78
The comparative survey
conducted in this chapter revealed a variety of approaches to provocation among
common law jurisdictions. Some jurisdictions allow provocation to operate
as a partial defence to charges of attempted murder (Scotland) or even as a
full defence to charges of assault (Queensland and Western Australia). However,
most jurisdictions (including Canada, New Zealand and the majority of
Australian states and territories) take the view that the plea should operate
as a partial defence to murder only, and this view is shared by the
Commission.[477]
5.79
A more or less
consistent approach was observed regarding the structure of the various legal
criteria of provocation, with most jurisdictions (including Canada, New Zealand
and the various states and territories of Australia) preferring a modified
objective test, whereby certain characteristics of the accused may be taken
into account when assessing the gravity of provocation, but are excluded
when the question of self-control is being considered. As a number of Australian
decisions have demonstrated, this approach is to be preferred even in
“multicultural” cases where the court is urged to take account of the ethnicity
of the accused. For the reasons set out in Chapter 7,[478]
the Commission supports this approach.
5.80
There is also general
agreement among common law courts that provocative conduct need not be
unlawful. A number of courts have held that conduct may be considered
provocative provided it is not authorised by law (the Canadian view) or is
considered wrong by the ordinary standards of the community (the Australian
view). With some exceptions (such as Scotland[479]),
most jurisdictions (including Canada, New Zealand and the majority of
Australian states) agree that words are capable of amounting to
provocation. For the reasons set out in Chapter 7,[480]
the Commission supports the majority approach to this issue.
5.81
A few jurisdictions
(including the Northern Territory and New South Wales) maintain that the
deceased must be the source of the provocation. In contrast, in Canada,
New Zealand, Victoria and (arguably) England and Wales, the defence is
available even where the accused was mistaken in his or her belief that the
deceased was the provoker. This is consistent with the approach adopted
in Ireland. For the reasons set out in Chapter 7,[481]
the Commission supports the position adopted by the majority of
jurisdictions.
5.82
It is unclear in many
jurisdictions whether the partial defence is available in circumstances of
self-induced provocation or where the accused was intoxicated. The
Commission accordingly advocates legislative clarification as set out in
Chapter 7.[482]
5.83
Finally, the Commission
has noted the defence of “Extreme Emotional or Mental Disturbance” as contained
in the Model Penal Code. However, for the reasons set out in
Chapter 7,[483] the
Commission does not support the introduction of such a defence in lieu of the
plea of provocation.
Chapter 6
PROVOCATION and public policy
6.01
The contrasting
rationales of justification and excuse associated with the defence of
provocation reflect competing policy objectives. On the one hand, there
is a feeling that the criminal law should make allowance for the infirmities of
human nature. On the other, there is the general expectation that members
of society should exercise a minimum standard of self-control. The
aspiration for set standards inspired by this expectation does not sit easily
with the sense of empathy aroused by a concern for human weakness. In
most jurisdictions the defence of provocation represents a compromise between
these competing policy goals; indeed elements of both justification and excuse
are often intermingled in the plea. The recent history of the defence has
however been shaped by excusatory considerations, with the result that the issue
of justification has, at least temporarily, been pushed to the
background.
6.02
As Chapter 3
illustrates, in England and Wales the objective test had hardened into a rigid
and inflexible criterion of provocation before the enactment of the Homicide
Act 1957.[484] In
effect, the “reasonable man” standard which had come down from R v Welsh[485]
had been denuded of precisely those characteristics on which defendants in
provocation cases might be expected to rely as a basis for a successful
plea. Section 3 of the Homicide Act dealt with this problem
by divesting trial judges of control over the evidence that could go to the
jury on the issue of provocation. This had the effect of giving the jury
freedom to determine whether or not the accused could be said to have been
provoked, having regard to the standard of the “reasonable man” unencumbered by
judicial refinements. The decision of the House of Lords in DPP v Camplin,[486]
delivered in 1978, went a step further by enabling the jury to take account
of the following (i) the accused’s personal
characteristics when assessing the gravity of provocation and (ii) the
accused’s age (and possibly sex) when deciding the issue of loss of
self-control; and this general approach has been followed by the courts in
Canada, Australia and New Zealand. More recently,[487]
the House of Lords has ruled that juries are entitled to consider an
accused’s personal characteristics tout court when assessing his or her
reaction to provocation; but this development has not been adopted in
the Commonwealth jurisdictions.[488]
6.03
The reaction against
the extreme version of the objective test reached its apotheosis in the
dissenting judgment of Murphy J in the Australian case of Moffa v The Queen,[489]
decided in 1977, in which that judge recommended the adoption of a radically
subjective criterion of provocation. A year later, in People (DPP) v
MacEoin,[490]
the Court of Criminal Appeal relied on Moffa when
introducing the subjective standard into Irish law. As a result of this
development, the net question for the jury became whether the accused had been
provoked, taking into account his or her “temperament, character and
circumstances”.[491] At
the time of writing, Ireland remains the only common law jurisdiction to employ
the subjective standard in this form; albeit that the courts in England and
Wales, by virtue of the decision in R v Smith,[492]
now seem to be moving in a similar direction. Recently, the Court
of Criminal Appeal, in People (DPP) v Davis,[493]
has suggested that it may be appropriate to set limits to the Irish standard as
laid down in MacEoin. Thus the views
expressed in Davis may pave the way for a reassessment of the plea in
the light of the community standards pushed into the background by the
radicalism of the MacEoin doctrine.
6.04
The retreat from the
extreme version of the objective test marked an attempt to reconcile the law’s
abiding concern for public safety with its historic acknowledgement of human
weakness and the reduced culpability typically associated with provoked
killings. Hence the evident attraction of the Camplin
compromise as described above:[494]
the emphasis on the “reasonable man” standard was seen as a means of preventing
the accused from “relying upon his own exceptional pugnacity or excitability”,[495]
and thus as upholding the value of public safety; while the factoring in of the
accused’s personal characteristics, especially insofar as they affect the issue
of gravity, was welcomed as making due allowance for the competing concern with
individual culpability. As was noted in Chapter 5, Commonwealth courts
have not generally been minded to move beyond these parameters as laid down in Camplin.[496]
6.05
Several criticisms have
nevertheless been directed at the Camplin[497]
version of the objective test. Perhaps the best-known criticism is that
the test is illogical insofar as it is predicated on the assumption that the
“reasonable man” is capable of losing self-control and killing.[498]
It has also been argued that the distinction between personal characteristics
going to gravity and self-control, respectively, has rendered the test
unworkable for juries.[499] Thus
it has been said that the hypothetical ordinary person or “reasonable man”, on
whom the test is predicated, “has developed a split personality in that his or
her character suddenly [changes] depending on which part of the test is being
addressed.”[500] Arguably,
this difficulty is exacerbated where the accused is a member of a racial,
ethnic or other minority: in cases of this kind, is the ordinary person to be
imbued with the characteristics and practices of the relevant group and, if so,
would the typical jury be capable of making the appropriate distinction and
assessment? More radically, it might be argued that the content of the
objective test will inevitably be determined by the social values and concerns
of the dominant group in society, to the exclusion of the perspectives and
experiences of minorities; and that there is therefore a real risk that the
discriminatory views of the majority could determine the standard by which
defendants are judged in the context of provocation.[501]
6.06
Theoretically speaking,
the invocation of the ordinary person as the lens through which the accused’s
conduct should be judged is a contradiction in terms: by definition, the
ordinary person does not react with fatal violence. However, this line of
reasoning assumes that the ordinary person is being employed as a model of
right conduct, and that he plays much the same role in criminal law as the
“reasonable man” does in tort; but this assumption has been disputed:
“The ordinary person test has been a continuing
source of confusion and controversy. In part at least, this is a
consequence of the misleading appearance of the test. One might expect
the ‘ordinary person’ to be invoked as a standard of acceptable, if not
desirable, social conduct. On reflection, however, it is obvious that the
ordinary person of provocation lore is no social exemplar, though there are
many instances in which courts and commentators have fallen into error on this
point. The putative reactions of the ordinary person who loses
self-control are not acceptable. On the contrary, the hypothetical
reactions of the ordinary person mark the boundary between murder and
manslaughter, two of the most serious offences in the statute books. This
fictitious being is far removed from the ‘reasonable person’, who is invoked to
set standards of acceptable conduct in other areas of the law. By definition,
the ordinary person of provocation law is one who can be driven to unlawful
homicide.”[502]
6.07
Similarly, the claim
that the objective test is unsuitable in a multicultural society has been
vigorously contested. Thus it has been suggested that a modified version
of the test, whereby an accused’s personal characteristics may be taken into
account when assessing the gravity of provocation, adequately caters for the
phenomenon of cultural diversity in this context.[503]
Indeed, supporters of this view have expressly rejected the claim that
the argument from multiculturalism requires any relaxation of the traditional
standard of self-control in provocation cases. In the nature of things,
racist remarks or taunts go to the gravity of impact of such taunts on a member
of a particular group, not to a person’s capacity for self control.[504]
6.08
Two principal arguments
can be advanced in support of the subjective test. The first is the claim
that it is better suited to the problem of cultural diversity in the context of
provocation. As noted previously, it was this consideration which led
Murphy J to deliver his dissenting judgment in Moffa.[505]
Secondly, it may be argued that a subjective evaluation is a better guide to
the issue of culpability. On this view, the accused’s guilt can only be
properly measured when all relevant personal circumstances have been taken into
account. Similarly, advocates of this position might argue that it would
be unjust to expect an “abnormal” person to meet “normal” standards of
self-control; and that, if the idea of a concession to human weakness is to
have any real meaning, an accused must be judged according to his or her
“abnormality” and not on the basis of hypothetical normality. The
judgment in MacEoin,[506]
and the decisions of the Court of Criminal Appeal which followed it, reflect
this second consideration. An important practical consideration might
also be cited in support of the subjective test. If the objective test is
as confusing and difficult to apply as is commonly assumed, the prudent option
would be to abandon attempts to modify the old standard and introduce a
radically subjective criterion of provocation in its stead.
6.09
On the other hand,
formidable arguments can also be marshalled against the subjective test.
The inconsistencies in the MacEoin[507]
judgment establishing the test have already been considered in Chapter 4.[508]
Suffice it to concentrate here on four aspects of the regime established
in MacEoin. First, it quickly became
apparent that the “reasonable relation” requirement was incompatible with the
radically subjective criterion of provocation which that decision purported to
lay down. In the 1990s the Court of Criminal Appeal sought to overcome
this difficulty by treating the “reasonable relation” requirement as a factor
bearing on the credibility of the accused’s case, rather than as an integral
part of the ratio decidendi in MacEoin. However, as Chapter 1 illustrates,[509]
the “reasonable relation” or proportionality requirement has been a key
component of the plea of provocation since its original early modern
incarnation. Moreover, it has been argued that the decision to downgrade
it to a mere evidentiary consideration appears to have been taken without due
regard to the effect such radical surgery was likely to have on the doctrine of
provocation as a whole; and, in particular, on that part of the doctrine
designed to promote the value of public safety.[510]
6.10
Secondly, the decision
in MacEoin[511]
has seriously compromised the classical principle that the plea of provocation
presupposes a standard of conduct – encapsulated in the concept of the
“reasonable man” since the mid-nineteenth century – applicable to individuals
generally. In MacEoin, the Court of
Criminal Appeal expressed its reservations about the concept of the “reasonable
man” as follows: “[W]ords which would have no effect
on the abstract reasonable man may be profoundly provocative to one having
knowledge of what people say about him. A hot-tempered man may react
violently to an insult which a phlegmatic one would ignore.”[512]
In the result, the hot-tempered individual is held to a different standard of
self-control than his or her phlegmatic counterpart,[513]
notwithstanding the fact that the law of provocation has always excluded the
reactions of unusually pugnacious or excitable individuals from the scope of
the plea. Indeed, it is arguable that a regime which permits the
criterion of provocation to vary from defendant to defendant has effectively
nullified the idea of a standard of conduct in the strict sense.
Standards normally presuppose compliance or conformity on the part of those at
whom they are aimed; whereas the logic of the MacEoin
doctrine is that they should be adjusted to suit the exigencies of individual
members of their target audience.
6.11
Thirdly, by installing
the accused’s “temperament, character and circumstances” as the criterion of
provocation, the Court of Criminal Appeal ensured that the plea could no longer
be qualified by considerations of principle or policy. Thus, while the
reasons for the accused’s lethal reaction might be rooted in a flawed
character, once it is established that he or she was in fact provoked the
defence must succeed. As McAuley and McCutcheon
have suggested, an unfortunate, and perhaps unforeseen, consequence of this
approach is that immoral and anti-social traits can be accommodated within the
Irish version of the defence:
“An illustration is the case of the defendant
who holds white supremacist beliefs and who genuinely believes that it is the
gravest insult for a black person to speak to a white person unless spoken to
first. On being spoken to by a black person he becomes enraged and kills
whilst in the throes of his bigoted passion. Tested subjectively he has
been provoked but there is no reason why the law’s compassion should be
extended to him, given that his beliefs are not merely unreasonable but are
morally repugnant. The strictly subjectivist terms in which Irish law has
expressed the defence lend themselves to allowing the defence to the racist.…”[514]
6.12
Those authors go on to
suggest that the defence should be “circumscribed by policy limitations and
should be denied, in cases where inter alia, to allow it would provoke
moral outrage.”[515]
6.13
Fourthly, nor does the
multiculturalism argument as used by supporters of the MacEoin[516]
doctrine survive critical scrutiny. Apart from the fact that it is highly
questionable whether it can ever be scientifically established that ethnicity
or cultural background gives rise to differences in the ability to exercise
self-control,[517] the
subjective test invites the type of stereotyping that a truly pluralist society
should seek to eliminate. On this view, the evaluation of human conduct
through the prism of unprovable assumptions about
race, cultural background and gender should be discountenanced.
6.14
Having considered
the excuse-based and justification-based models of provocation, the Commission
recommends the adoption of a modified version of the latter.[518]
C
Cumulative Provocation, Immediacy and Domestic
Homicide
6.15
Cumulative provocation
consists of a series of acts directed towards the accused which, when aggregated,
constitute a sufficient basis for the defence. Viewed in isolation, any
one of the acts in question would not amount to provocation. In the
nature of things, the focus of the doctrine of cumulative provocation is on the
totality of the deceased’s conduct vis-ŕ-vis the accused rather
than on his or her last, isolated act, as is the case with the defence simpliciter. Cumulative provocation has not
been specifically recognised in Irish law. The decisions in People
(DPP) v O’Donohoe[519]
and People (DPP) v Bell[520]
show evidence of a permissive approach to provocation in the context of
domestic homicide.[521]
However, the phenomenon of cumulative provocation is not confined to
domestic homicides: it would, for instance, be potentially applicable to the
case of a person who is driven to kill by the persistently anti-social antics
of “neighbours from hell”.
6.16
The question of
immediacy is an important consideration in the context of domestic
homicide. The essence of the provocation defence is that the killing has
been carried out in hot blood. An accused is less likely to have acted
under provocation if time has elapsed between the provocative conduct and the
killing. It is sometimes argued that the immediacy requirement is based
on a uniquely male view of provoked violence: viz
provocative conduct followed by a sudden violent outburst. According
to this view, the typical female response to provocation is different:[522]
frequently, a woman who has been subjected to repeated violence by an abusive
partner waits until her tormentor is either asleep or drunk before striking the
fatal blow. The woman’s actions in such cases might be understandable but
they are not easily accommodated within traditional provocation doctrine.
First, the absence of a provocative act capable of serving as a triggering
condition in its own right forces reliance on the argument that the deceased’s
last act was “the straw that broke the camel’s back.” Secondly, the delay
between the deceased’s last act and the killing brings her into conflict with
the immediacy requirement: indeed it suggests that the killing was deliberate
and calculated, that it was cold blooded, not hot blooded.[523]
6.17
As noted above, there
is evidence that the courts are willing to take a lenient approach to this
matter and to admit evidence of cumulative provocation in order to place the
deceased’s final act in context. In several cases such evidence has been
accompanied by testimony of mental infirmity such as “battered woman syndrome”
or post-traumatic stress disorder. However, although the English courts
have expressed their willingness to admit such evidence,[524]
the requirement that there must be a sudden and temporary loss of self-control
appears to have survived this move. In R v Thornton,[525]
the defence failed because the appellant had admitted that her action in
stabbing her husband was not the result of a sudden loss of self-control
induced by the provocative statements he had made shortly beforehand. In R
v Thornton (No 2),[526] new
evidence was tendered to the effect that the accused had been suffering from
“battered woman syndrome” as well as a personality disorder. The appeal
was allowed on the grounds that a reasonable person with those characteristics
might have reacted to the alleged provocation as the appellant had done.
In other words, if the jury had known that the appellant was suffering from
“battered woman syndrome” at the relevant time, they might have concluded that
there had been a sudden and temporary loss of self-control on her part!
6.18
Given that the burden
of the evidence in cases of this kind is that the accused did not suffer
a sudden loss of self-control, albeit for understandable reasons,[527]
the reasoning in Thornton (No 2)[528]
looks suspiciously like a case of clinging to a legal form having effectively abandoned
its substantive content.[529]
6.19
Although it is arguable
that defendants of this type may at times deserve to be convicted of
manslaughter rather than murder and, indeed, that the contrary result would
invite public condemnation, the legal basis for a successful plea of
provocation in such cases remains unclear. Arguably, the doctrine of
cumulative provocation tears the heart out of the original plea. A better
solution might be to process these cases under the rubric of diminished
responsibility or extreme emotional disturbance, thereby avoiding needless
damage to the architecture of existing defences.[530]
Alternatively, it might be argued that the more realistic option would be
to dispense with the immediacy requirement as a formal component of the plea of
provocation. Unlike the diminished responsibility option, this move would
cater for the domestic homicide cases without “pathologising”
the defendants involved in them.[531]
Moreover, the removal of the immediacy requirement seems less vulnerable to the
criticism that might be levelled at the extreme emotional disturbance option:
namely, bearing in mind that homicide is generally the product of powerful
emotions, the introduction of that option would make it extremely difficult, if
not impossible, to secure a conviction for murder.
6.20
The Commission
recommends that the traditional requirement of immediacy should be diluted in
order to allow greater flexibility in dealing with cases of domestic homicide.[532]
D
Provocation and Mental Disorder
6.21
The relevance of the
issue of mental disorder to the defence of provocation and the proper
relationship between that defence and diminished responsibility need careful
consideration. As matters stand, Irish law does not recognise the defence
of diminished responsibility, although the introduction of a plea of that name
is envisaged in the Criminal Law (Insanity) Bill 2002. It should
however be borne in mind that, the imminent introduction of a plea of
diminished responsibility notwithstanding, the MacEoin[533]
doctrine already appears to permit evidence of mental disorder to be taken into
account on the issue of provocation: on a literal reading of the doctrine,
evidence of mental infirmity would arguably be relevant to the “temperament,
character and circumstances” of the accused. As the Irish Courts have yet
to pronounce on the admissibility of such evidence in provocation cases, it may
be instructive to examine the attitude of their New Zealand counterparts in
this regard,[534] not least
because, like Ireland, New Zealand does not recognise a defence of diminished
responsibility. Indeed, the absence of a plea of diminished
responsibility initially prompted the New Zealand Court of Appeal to exclude mental
infirmity from the range of characteristics which could be attributed to the
reasonable person for the purposes of provocation.[535]
However, the Court has since changed tack and acknowledged that the defence of provocation
could accommodate evidence of diminished responsibility “within a limited
field.”[536] It
should moreover be remembered that this conclusion was reached in the context
of the modified objective test and, consequently, that the Court’s reasoning on
this point would have greater force in a jurisdiction that operates a
full-blown subjective test.
6.22
In England and Wales
the defence of diminished responsibility was established by section 2 of the Homicide
Act 1957. Although separate and distinct from the plea of
provocation, which is provided for in section 3 of the 1957 Act,[537]
recent case law on provocation has tended to blur the line between that defence
and diminished responsibility.[538]
Thus, in a series of decisions adapting the modified objective test, the Court
of Appeal has held that evidence of the accused’s mental infirmity is relevant
to the defence of provocation both in respect of the question of gravity and
that of self-control.[539] In
other words, for the purposes of the issue of self-control the reasonable
person can be invested with the accused’s mental disorder. Moreover, the
House of Lords has endorsed these rulings in its recent decision in Smith,[540]
where it was held that the accused’s clinical depression should have been taken
into account in respect of the issue of self-control.[541]
Indeed, the majority rejected the proposition that the existence of a
separate defence of diminished responsibility effectively precluded the jury
from considering the accused’s mental condition in the context of
provocation. The decision in Smith has been criticised by
commentators[542] on the
grounds, among others, that it has pushed the law too far in the direction of
an unqualified subjectivism.
6.23
These developments
highlight the need for clear thinking on the proper role of mental infirmity
evidence in the context of provocation. Arguably, evidence of mental
infirmity should be confined to the defences of insanity and/or diminished
responsibility.[543] As
Glanville Williams has observed:
“Provocation is traditionally a defence for
‘normal’ people. Abnormal people can shelter under it, but only on the
same conditions as apply to normal ones. If they want their abnormality
to be taken into account they must raise a defence appropriate to them –
insanity or diminished responsibility.”[544]
6.24
Similarly, commenting
on the overlap between provocation and diminished responsibility, Horder has suggested that “the moral integrity of each
defence is preserved only if such defences are capable of operating largely
(but not wholly) independently of one another.”[545]
Many will find these conclusions compelling.
6.25
The Commission is
satisfied that mental disorder raises issues that properly fall outside the
scope of the plea of provocation. Accordingly, it recommends that an
accused’s mental disorder should not be taken into account when assessing the
power of self-control of the ordinary person.[546]
E
The Nature and Sources of Provocative Conduct[547]
6.26
At common law
provocation consisted of a wrongful act and a number of statutory formulations
have retained the wrongfulness requirement.[548]
This reflects the early modern view that provocation is a species of
partial justification. Recent developments are more consistent with an
excuse-based theory of provocation. In the first place, the law’s
conception of what is “wrongful” for the purposes of provocation has
changed. It is no longer necessary that the conduct be wrongful in the
sense that it violates the law: it is enough that it was in breach of ordinary
community standards. Hence, Lowry LCJ’s remarks in R v Browne:[549]
“I should prefer to say that provocation is something unwarranted which is
likely to make a reasonable person angry or indignant.…”[550]
Secondly, it is now accepted in most jurisdictions that words alone,
unaccompanied by wrongful deeds, can amount to provocation; and, as every law
student knows, the uttering of insulting words does not in general amount to a
criminal or tortious wrong.
6.27
Traditionally the
defence was available only where the deceased was the author of the
provocation. This position was the logical result of a
justification-based view of the defence: fatal retaliation could only be
partially justified where it was directed at the person who committed the
provocative wrongful act. However, under the growing influence of the
excuse rationale, the law would appear to have moved to a position where
provocation need no longer be seen to have emanated from the deceased.[551]
6.28
A reform package
inspired by the theory of justification would seek to restore the traditional
common law position on this point: the defence would be confined to cases where
the deceased had perpetrated a wrongful act on the defendant. On the
other hand, it may be thought that this would entail undue interference with
the present position and, bearing in mind that the defence is widely perceived
as a concession to human infirmity, a more permissive excuse-based approach
extending at least to cases of mistaken identity, might be preferred.
Chapter 5 reviews several legislative models designed to accommodate this
point.
6.29
The Commission
believes that the plea of provocation should not entail a requirement that the
deceased must have acted “unlawfully”; it should be enough that the provocation
was unacceptable by the ordinary standards of the community.[552]
The Commission also recommends that the plea should be available only if (a)
the deceased is the source of the provocation or (b) the accused, under
provocation given by one person, by accident or mistake kills another.[553]
F
Provocation and Intoxication
6.30
The relationship
between intoxication and provocation awaits judicial clarification in Ireland
despite the fact that evidence of severe intoxication appears to have played a
role in several recent cases.[554]
In many jurisdictions, intoxication has been excluded from consideration as a
matter of policy.[555]
Strong arguments can be made in support of a policy of exclusion.[556]
Many will feel that as the drunken accused was responsible for bringing
about his or her own condition, he or she should not be allowed to profit from
its effects, at least to the extent that the latter include enhanced
susceptibility to provocation. Alternatively, it might be contended that
the principle of compassion for human frailty underpinning the plea of
provocation should not be extended to defendants who were clearly responsible,
as a result of drink or drugs, for their own excitable state. Finally,
there is the argument that the standard of normal self-control associated with
the traditional doctrine of provocation does not on any reasonable view
countenance the indulgence of the drunken defendant. On the other hand,
there will be those who, reflecting the permissive side of the debate on
intoxication and criminal liability, will argue that an accused whose mind was
befuddled by drink or drugs does not deserve to be treated as an intentional
killer notwithstanding that he or she might not have reacted in the same manner
had he or she been sober.[557]
However, by parity of reasoning with what was said on the issue of cumulative
provocation,[558] this is
really an argument about the proper limits of the plea of intoxication and,
consequently, should not be allowed to cloud the quite separate matter of
setting appropriate boundaries to the defence of provocation.
6.31
The Commission
recommends that an accused’s state of intoxication should not be taken into account
when assessing the power of self-control of the ordinary person.[559]
G
Should the Defence of Provocation be Retained?
6.32
The difficulties
besetting the plea of provocation might be summarised as follows. First,
insofar as it is confined to the crime of murder, it arguably leads to
inconsistency between offences; in respect of offences other than murder,
evidence of provocation goes only to sentence. Secondly, the plea looks
anomalous when compared with other criminal law defences. For example, in
most common law jurisdictions, a plea of coercion is no answer to murder, yet a
defendant who kills in the face of a threat to his or her own or a loved one’s
life seems no less deserving of a manslaughter verdict than the provoked
killer. Mutatis mutandis, the concession to human infirmity
principle underpinning the plea of provocation seems equally applicable to the
defendant who kills his or her victim in circumstances of necessity. The
psychological forces at play in cases of this kind, which often include the
survival instinct and the desire to save a loved one from virtually certain
death, seem no less coercive than the anger states which actuate the typical
provoked killer. Thirdly, the problem of fashioning a workable criterion
of provocation seems insuperable. On the one hand, the ordinary person or
“reasonable man” concept has given rise to what many regard as an unworkable
distinction between personal factors going to gravity and self-control,
respectively; and to an entirely unsuitable criterion of provocation in the
context of multiculturalism. On the other hand, the subjective test, at
least in its extreme form, seems effectively to negate the concept of self-control
as a standard of conduct:[560] virtually
every human trait, not excluding the most virulent forms of racism and sexism,
seems capable of being brought within the protective reach of the concept of
the accused’s “temperament, character and circumstances” as laid down in MacEoin.[561]
6.33
Mindful of these
difficulties, a number of review bodies[562]
and academic commentators[563] have
argued that the defence of provocation should be abolished. For example,
in 1998, the Australian Model Criminal Code Officers Committee (“MCCOC”)
recommended abolition in its Discussion Paper on Fatal Offences Against the
Person.[564] The
MCCOC’s review of the arguments for abolition of the defence is worth noting.
6.34
According to the MCCOC,
the principal argument in favour of abolishing the defence lies in the fact
that provoked killings are intentional; and in the invalidity of the assumption
that hot-blooded killers are less culpable than their cold-blooded
counterparts.[565] On
the first of these matters, the Committee noted that the notion of loss of
self-control as used in provocation is conceptually different from loss of
control in the context of a successful plea of automatism:
“[P]eople who lose
self-control are not perceived as being in the same category as people who act
automatically or without intention. The person who acts in circumstances
of extreme passion does act with conscious volition [and] such people do intend
their actions and the results thereof.”[566]
6.35
In respect of the
second matter, the MCCOC proceeded by way of a series of rhetorical questions
intended to cast doubt on the traditional assumption that the hot-blooded
killer deserved the benefit of the plea in mitigation:
“Why is a husband who kills his wife because he
found her committing adultery morally less guilty than a murderer? Why is a
conservative Turkish Muslim father partially excused when he stabs his daughter
to death because she refuses to stop seeing her boyfriend?[567]
Why do we partially excuse a man who kills another man who has made a
homosexual advance on him?[568] Why is
deadly violence mitigated in these cases?” [569]
6.36
These considerations
prompted the conclusion that differences of culpability between provoked and
unprovoked killers would be better handled at sentencing stage; and, in this
connection, the Committee drew attention to the fact that, in most
jurisdictions, the issue of provocation is handled in this way in respect of
non-fatal offences against the person.[570]
In the Committee’s opinion, the “elevated status”[571]
enjoyed by provocation in the context of homicide was brought about by the
fixed penalty associated with murder. Bearing in mind that the Law Reform
Commission[572] has
recommended the abolition of the mandatory life sentence for murder in this
jurisdiction, the MCCOC’s argument on this point might be thought to apply with
equal force in Ireland.
6.37
The MCCOC also relied
on the argument that the plea of provocation is gender biased to the extent
that it fails to provide for the normal pattern of female aggression.
Hence its critique of the suddenness requirement: a battered woman frequently
waits until her abuser is drunk or asleep before striking and consequently, has
no realistic hope of securing the benefit of the plea of provocation. In
the opinion of the MCCOC, this problem is so deeply entrenched within the
architecture of the defence that nothing short of outright abolition offers the
prospect of a satisfactory solution to it. It should however be borne in
mind that, although there is some evidence to support the view that the
provocation defence favours men over women,[573]
the Committee cited studies in Victoria[574]
and New South Wales[575] which
reached the opposite conclusion.
6.38
Turning to the position
of the commentators, Horder has advanced two
arguments in support of abolition. His first argument is that the defence
is gender biased both in its formal structure and actual operation: the
plea “reinforces the conditions in which men are perceived and perceive
themselves as natural aggressors, and in particular women’s natural
aggressors.”[576] Secondly, Horder contends that there is no reason why anger should be
singled out for special treatment by the defence of provocation when killings
driven by other emotions, such as envy, lust or greed, are routinely treated as
murder. On this view, the natural desire, borne out of anger, to inflict
retaliatory suffering must be distinguished from the actual infliction of
suffering. In a civilised society, the latter is the preserve of the
state and individuals must content themselves with other means of demonstrating
their justly felt anger by expressing what he calls “[r]ighteous
indignation.”[577]
6.39
Wells has criticised
the operation of the provocation defence as sexist, “homophobic”, racist and
“defamatory” of the deceased: in the nature of things, an accused seeking to
rely on provocation will point to evidence that places the victim in an
unfavourable light. Accordingly, that writer concluded:
“We should cut our ties with a defence that is
rooted in a criminal justice system that we would hardly now recognize, in an
era where punishment was (at least in its officially pronounced forms) crude
and vengeful, and in a social, economic and political world informed by
entirely different values. The result is a defence that constrains and
constructs homicides into distortions of people’s lives, adversely affecting
victims’ families, defendants, and more generally lending legitimacy to
superficial explanations of violence.”[578]
6.40
Equally compelling
arguments can be advanced in support of the retention of the defence.
Perhaps the most important of these is the abiding moral perception that
provoked killings are less heinous than unprovoked ones, and that this
difference cannot adequately be catered for by adjusting the quantum of
punishment at sentencing stage. According to this argument, the real
issue is one of appropriate labelling: provoked killers do not deserve to be
branded as murderers on moral grounds;[579]
and, on that analysis, provocation is a liability issue which must be
determined at trial stage. In response to the suggestion that the
defence is gender biased, it has been contended that reform rather than
abolition is the better strategy;[580]
as can be seen from its provisional recommendation and the draft clause
accompanying them, the Commission is in broad agreement with this
approach. Similarly, the parallel argument that the defence is
irremediably discriminatory in its effects seems overstated. Once again,
the more appropriate remedy might be thought to lie in reform rather than
abolition.[581] Finally,
it should be borne in mind that, if, as the Commission believes, the doctrine
of provocation is rooted in the moral perception that provoked killings should
not be treated as murder, that perception is likely to seek alternative
expression in the event of abolition. For example, it is not
inconceivable that, following abolition, the concept of intention could become
the new battleground for the provoked killer seeking a manslaughter
verdict. In this scenario, the matching argument would most likely be to
the effect that, by reason of provocation, the killing “wasn’t really
intentional”. To say the very least, the “theology” of intention that
would inevitably flow from an arrangement of this type is likely to make the
current difficulties associated with the plea of provocation pale into
insignificance.
6.41
The Commission
rejects the arguments in favour of abolishing provocation and, accordingly,
recommends that the plea should be retained.[582]
6.42
This chapter examined
the competing policy considerations associated with the contrasting rationales
of justification and excuse, noting that recent history has seen the law of
provocation move from a predominantly justification-based approach toward a
more excuse-based one.
6.43
The subjective and
objective tests were assessed against this background; as were the issues of
cumulative provocation, provocation and mental disorder, the nature and sources
of provocative conduct, provocation and intoxication, and the argument that the
defence of provocation should be abolished altogether.
6.44
The recommendations
contained in this chapter may be summarised as follows:
(i)
Having
considered the excuse-based and justification-based models of provocation, the
Commission recommends the adoption of a modified version of the latter.[583]
(ii)
The Commission
recommends that the traditional requirement of immediacy should be diluted in
order to allow greater flexibility in dealing with cases of domestic homicide.[584]
(iii)
The Commission
is satisfied that mental disorder raises issues that properly fall outside the
scope of the plea of provocation. Accordingly, it recommends that an accused’s
mental disorder should not be taken into account when assessing the power of
self-control of the ordinary person.[585]
(iv)
The Commission
believes that the plea of provocation should not entail a requirement that the
deceased must have acted “unlawfully”; it should be enough that the provocation
was unacceptable by the ordinary standards of the community.[586] The
Commission also recommends that the plea should be available only if (a) the
deceased is the source of the provocation or (b) the accused, under provocation
given by one person, by accident or mistake kills another.[587]
(v)
The Commission
recommends that an accused’s state of intoxication should not be taken into
account when assessing the power of self-control of the ordinary person.[588]
(vi)
The Commission
rejects the arguments in favour of abolishing provocation and, accordingly,
recommends that the plea should be retained.[589]
7.01
The observations made
by the Court of Criminal Appeal in People (DPP) v Davis[590]
to the effect that the defence of provocation may require reformulation
serve as a timely reminder of the need for reform of this branch of the
law. Four different reform strategies are outlined in this chapter: abolition;
one based on justificatory considerations; one based on the excuse rationale;
and the replacement of provocation by a more general excuse-based defence.
7.02
A key assumption
underlying these reform options is that the sanctity of human life is a core
value in any civilised society. Cases of legitimate defence aside, the
theme of this chapter takes it for granted that the killing of another human
being should be treated as unlawful. In particular, it is assumed that retaliation
for wrongs is properly the business of the State, acting through the medium of
the criminal law. Accordingly, retaliation by the individual at whom a
wrong has been directed should not be legally privileged. However, it is
accepted that, by virtue of the conduct of the deceased, some intentional
killings involve a lesser degree of culpability than others; and that this
reality is best catered for by retaining the defence of provocation in some
form.
7.03
The final three reform
strategies presented here would operate as partial defences reducing murder to
manslaughter. The remaining option, that of abolition, would require the
dismantling of the fixed penalty for murder by way of ensuring that reduced
culpability for an intentional killing would be reflected in a reduced
sentence.
7.04
This chapter also
proceeds on the assumption that the criminal liability of defendants suffering
from mental disorder raises discrete issues and should be the focus of a
separate defence or set of defences. Properly construed, provocation
assumes that the accused is mentally normal, whereas a successful mental
condition defence typically rests on the contrary assumption. On this
reasoning, provocation goes to culpability while mental condition defences are
concerned with criminal capacity. The Commission welcomes the recent
publication of the Criminal Law (Insanity) Bill 2002, and notes
that it seeks to preserve the distinction between culpability and capacity just
outlined.
7.05
The case for abolishing
the defence of provocation, including the views of law reform bodies on this
question, has been outlined in Chapter 6. Proposals for abolition rest on
the assumption that the question of a provoked killer’s culpability can be
adequately dealt with at sentencing stage. In Ireland, abolition would
have to be accompanied by the replacement of the fixed penalty for murder with
a discretionary sentence. As it happens, the Commission has already
recommended that the fixed penalty for murder should be abolished.[591]
7.06
It does not follow from
that recommendation that the defence of provocation should likewise be
abolished. Indeed the Commission believes that there are compelling
reasons for retaining the plea. In a recent Seminar Paper, the Commission
argued strongly in favour of retaining the distinction between murder and
manslaughter.[592] In
the Commission’s opinion, that distinction marks an important moral boundary
which, bearing in mind that provoked killings have been recognised as a species
of manslaughter for five centuries, would be compromised by the abolition of
the plea of provocation.
C
A Justification-Based Defence of Provocation
7.07
A second strategy would
be to reform the defence of provocation by giving greater emphasis to the
justificatory components of the plea. The essence of justification theory
is that the accused’s retaliatory act was partially warranted by the deceased’s
conduct. This rationale is rooted in the original common law conception
of provocation which, as enunciated in R v Mawgridge,[593]
sought to confine the plea to cases where the accused was the “target” of one
of the recognised categories of untoward conduct set out in that case.
More recently, the justification rationale was articulated by Lowry LCJ in R
v Browne,[594] who stated
that “provocation is something unwarranted which is likely to make a
reasonable person angry or indignant.…”[595]
7.08
It is important to
stress that justification in this context does not entail the conclusion that
the deceased must have acted unlawfully. Following extensive
comparative research, the Commission is satisfied that it would be enough that
the alleged provocation, which might include insulting words or gestures, was
unacceptable by ordinary community standards. But it does mean that
allegedly provocative conduct falling short of this standard could not be
relied on as a basis for the defence.
7.09
Several important
consequences would flow from the adoption of a justification model of the
provocation defence. First, this model would necessitate the abandonment
of the subjective test in its extreme Hibernian form. As already
indicated, the essence of justification theory is that loss of self-control,
however complete, would attract the defence if and only if it had been
triggered by conduct that could be considered untoward by ordinary community
standards. Secondly, the element of proportionality, traditionally
defined as the “reasonable relation” requirement in Irish law, would assume
renewed importance. As a matter of logic, a community standard of
provocation would discountenance disproportionate individual reaction.
7.10
Thirdly, the
justification model would confine the defence to cases of non-trivial
provocation. In the nature of things, evidence of grave provocation would
be required to support the conclusion that the deceased was partially
responsible for his or her own demise. Finally, given that the gravity of
provocation can only be meaningfully measured in terms of the impact of the
deceased's conduct on the accused, the justification model would provide a
solid basis for considering the personal characteristics of accused persons
when assessing their reaction to provocation.
7.11
Arguably the problem of
a mistaken belief as to the existence of provocation would pose special
difficulties. Strictly speaking, the absence of an underlying basis of
provocative conduct should preclude reliance on the doctrine of partial
justification; and, on that analysis, cases of this kind would more properly
fall to be resolved under the general rubric of mistake of fact. On the
other hand, if the accused’s mistaken belief was based on reasonable grounds,
the conclusion that the response was partially justified in the
circumstances does not seem unduly strained; and, on that view, the
predicament posed by a reasonable but mistaken belief could be
accommodated by the justification model.
D
An Excused-Based Defence of Provocation
7.12
A third strategy would
be to reform the defence along excuse lines. In this guise, the defence
would concentrate on the accused’s loss of self-control but would still require
an underlying foundation of provocative conduct, or, as an absolute minimum,
conduct that the accused took to be provocative. However, the focus of
the defence would be on the accused’s emotional state rather than on the
quality of the triggering event. A broad range of allegedly provocative
conduct, either emanating from the deceased or from another source, would be
accommodated by this approach. The emphasis on the accused’s loss of
self-control would also widen the defence to include provocative conduct that had
not been witnessed by the accused (so called “hearsay provocation”).
7.13
An excuse-based version
of the defence would not necessarily mean that the subjective test would be
retained in its present form. Indeed, it is arguable that the strong version
of the subjective test is incompatible with the theory of excuse in its strict
meaning.[596]
Excuse theory presupposes a standard of conduct to which it would be
unfair to hold an accused in the circumstances; whereas the subjective test, at
least in its extreme form, eschews the very idea of a standard of conduct in
this sense. On the contrary, the essence of that variant of the test is
that the criterion of provocation should be allowed to vary with the personal
characteristics and circumstances of each individual accused. Moreover,
as Chapter 4 illustrates, the practical difficulties involved in applying the
subjective test suggest that it is unlikely to survive unaltered in Ireland, at
least in the medium to long term.[597]
7.14
These difficulties
raise the question as to how the subjective test should be reformulated so as
properly to give effect to the excuse rationale. Plainly, the Camplin[598]
formula, standing alone, would be an unsuitable substitute. Apart from
its reliance on the distinction between personal characteristics going to
gravity but not to self-control, the rule in that case leaves open the range of
characteristics that can be taken into account when assessing the accused’s
reaction to provocation; and it may be thought that a regime of that kind would
not represent a significant advance on the present position. Another
possibility would be to remodel the test on one of the Camplin
variations. For example, the Criminal Law Revision Committee (“CLRC”) has
suggested that:
“[I]n place of the reasonable man test the test
should be that provocation is a defence to a charge of murder if, on the facts
as they appeared to the defendant, it can reasonably be regarded as a
sufficient ground for the loss of self-control leading the defendant to react
against the victim with a murderous intent.”[599]
7.15
In the opinion of the
CLRC, the omission of any reference to the “reasonable man” in this
formulation, would draw the jury’s attention to the real issue in provocation
cases: namely, whether they thought the defendant’s loss of self-control was
reasonable in the circumstances. However, the CLRC went on to recommend
that “the defendant should be judged with due regard to all the circumstances,
including any disability, physical or mental, from which he suffered”,[600]
and this latter recommendation arguably subverts the intention of the former:
namely, the leavening of the subjective test with objective considerations.
7.16
The Law Commission of
England and Wales has adopted the CLRC recommendation in its Draft Criminal
Code. Clause 58 of the Code stipulates:
“A person who, but for this section, would be
guilty of murder is not guilty of murder if –
(a)
he acts when provoked (whether by
things done or by things said or by both and whether by the deceased person or
by another) to lose his self-control; and
(b)
the provocation is, in all the
circumstances (including any of his personal characteristics that affect its
gravity), sufficient ground for the loss of self-control.”[601]
7.17
Although clause 58(b)
expressly confines consideration of the accused’s personal characteristics to
the question of gravity, the Law Commission was satisfied that the wording of
the clause gives effect to the CLRC recommendation that the accused should be
judged in the light of his or her personal circumstances.[602]
7.18
The New South Wales Law
Reform Commission has also recommended a reformulated defence of
provocation. It proposed that the ordinary person test be replaced by a
subjective criterion suitably qualified by a community standard of
blameworthiness:
“[T]aking
into account all of the characteristics and circumstances of the accused, he or
she should be excused for having so far lost self-control as to have formed an
intention to kill or inflict grievous bodily harm or to act with reckless
indifference to human life [the three mental states that supply mens rea for murder
in New South Wales] as to warrant the reduction of murder to manslaughter.”[603]
7.19
In that Commission’s
opinion, the remodelled defence would provide the jury with a “simple,
straightforward means”[604] of
evaluating the culpability of the accused. The qualification that
community standards would operate as a filter for the defence is important: its
inclusion was designed to ensure that the unusually excitable or pugnacious
individual would be denied the benefit of the defence.
7.20
Given that its primary
focus is on the accused’s loss of self-control, it would be possible to exclude
the immediacy requirement from an excuse-based version of the provocation
defence. This would overcome some of the difficulties currently
associated with pleading the defence in cases of domestic homicide, especially
those involving battered women. It should be noted that this reform has
already been implemented in New South Wales and in the Australian Capital
Territory.[605]
7.21
The relationship
between an excuse-based defence of provocation and mental condition defences
tends to be problematic. Reform proposals driven by excuse considerations
often involve an overlap between provocation and diminished
responsibility. The CLRC envisaged that if its revised version of the
defence were enacted there would be an increase in the number of jury verdicts
based on both provocation and diminished responsibility.[606]
As already indicated,[607] the
partial elision of these defences undermines their differing roles in the
construction of criminal liability and clouds their respective moral bases.[608]
Accordingly, it is recommended that a clear distinction should be
maintained between provocation and mental condition defences.
E
A General Excuse-Based Defence
7.22
As the preceding
chapters illustrate, the bulk of the criticism directed against the modern
approach to provocation is that it has given rise, through the medium of the
subjective test, to an unduly permissive version of the plea. It remains
to consider the contrary argument: that the defence of provocation is too
restrictive and should be replaced by a general excuse-based plea that would
accommodate provoked and unprovoked killings alike. The essence of this
argument is that the traditional emphasis on the requirement of provocation
fails to provide for a wide range of unprovoked intentional killings
that deserve to be treated as manslaughter on moral grounds. For example,
it is often suggested that killings actuated by such emotions as fear, despair,
hopelessness and compassion naturally fall into this category and, accordingly,
should be given the benefit of the concession to human infirmity principle that
underpins the traditional plea of provocation.
7.23
Perhaps the best known
example of a plea of this kind is the American Model Penal Code defence
of Extreme Emotional Disturbance, which was outlined in Chapter 5.[609]
The relevant provision is contained in section 210.3(1)(b) of the Code:
“Criminal homicide constitutes
manslaughter when: … (b) a homicide which would otherwise be murder is
committed under the influence of extreme mental or emotional disturbance for
which there is reasonable explanation or excuse. The reasonableness of
such explanation or excuse shall be determined from the viewpoint of a person
in the actor’s situation under the circumstances as he believes them to be.”
7.24
While the primary focus
of the Model Penal Code defence is on the underlying emotional state
which actuated the killing, there is also a clear concern with striking the
right balance between subjective and objective considerations when fixing liability.
As regards the former, account may be taken of the accused’s personal
characteristics, while objective considerations are reflected in the
requirement that there must be a reasonable explanation or excuse for the
killing.
7.25
The defence of extreme
emotional disturbance has been enacted in a minority of American states, albeit
that the legislature has generally seen fit to augment the objective aspects of
the plea. As already indicated, the principal argument in favour of the
plea is that the removal of the need to introduce evidence of provocation as a
triggering condition would facilitate manslaughter verdicts in cases which are
morally indistinguishable from those covered by the traditional defence.
7.26
The Commission
emphatically rejects this course of reasoning. In a recent Seminar Paper[610]
the Commission has accepted the proposition that the law of murder as currently
configured is over-inclusive in respect of several categories of intentional
killings; and that this state of affairs might usefully be addressed by
introducing, among other measures, new defences (and partial defences) not
excluding the plea of extreme emotional disturbance. However, the
Commission has also cautioned against the adoption of reforms in this area
which would have the effect of compromising the principle of accurate labelling
in the definition of offences and defences.[611]
In the Commission's opinion, provoked killings are sui generis and
should continue to be treated as such. By parity of reasoning, the
Commission is committed to examining, as part of its general review of the law
of homicide, the larger question of over-inclusion insofar as it affects unprovoked
killings; and will return to the arguments for and against the plea of
extreme emotional disturbance in that context.
7.27
It should also be borne
in mind that the Model Penal Code defence of extreme emotional
disturbance was introduced at a time when the law of provocation in the United
States was virtually on all fours with the rule in Bedder
v DPP:[612] in
general, little or no allowance was made for the personal characteristics of
the accused. In short, the new plea was conceived, at least in part, as a
way of ameliorating the harshness of the contemporary common and statute law of
provocation. No such exigency affects the current law of provocation in
Ireland. If anything, the concern with modern Irish law is the exact
opposite: the law is too lenient. Moreover, it should be remembered that
in the States which adopted the Model Penal Code recommendation the
defence of extreme emotional disturbance was qualified by the addition of
objective considerations which significantly circumscribed the reworked
excusatory plea.
7.28
The Commission is
persuaded by the arguments against the abolition of the defence.
Accordingly, it provisionally recommends that the defence be retained, albeit
in a modified form.
7.29
The Commission is also
of the view that the enactment of a general excuse-based defence by way of a
substitute for the plea of provocation is unwarranted. Accordingly, it
provisionally recommends that a defence of extreme emotional disturbance should
not feature in any reform of the law of provocation.
7.30
The Commission
provisionally recommends that the justification-based model should guide reform
of the plea of provocation. The focus of the remodelled defence should be
on the conduct of the deceased that is said to have provoked the accused to the
point of engaging in fatal violence. This would involve a shift away from
the current, excuse-inspired, emphasis on the accused’s loss of control.
In the Commission’s opinion, it is vital not to lose sight of the
original basis for the defence: that “wrongful” conduct on the part of the
deceased triggered the accused’s lethal response. If this requirement is
ignored or overlooked, the plea is apt to slip its moorings and lose its
bearings. As the Irish experience illustrates, the ensuing voyage can be
a very disorientating experience.
7.31
At the same time, the
Commission acknowledges that the adoption of a justification-based defence
should be tempered by excuse considerations. It is not proposed to revert
to the Bedder[613]
doctrine which prevented the courts from taking account of the accused’s
personal situation. The Commission provisionally recommends that reform
of the plea should ensure that courts are in a position to take account of the
accused’s personal characteristics insofar as they affect the gravity of
provocation. However, with the possible exception of age, it is
recommended that personal characteristics should not feature in relation to the
question of self-control. The Commission notes that this reform would
bring Irish law broadly into line with the law in Canada, Australia and New
Zealand.
7.32
The remodelled defence
would involve a two-part inquiry. First, the jury would be asked to
consider whether the accused was in fact provoked by the conduct of the
deceased. In relation to this issue, the accused’s characteristics and
circumstances would be relevant on the grounds that they help to explain the
provocative quality of the deceased’s actions. Secondly, the jury would
be required to consider whether the accused ought to have responded as he or she
did, as judged by ordinary community standards of self control and
proportionality, rather than by a vague, individualised criterion derived from
his or her personal characteristics. In some jurisdictions these elements
have been referred to as the subjective test and objective test,
respectively. This terminology has resulted in confusion and some
observers have contended, with justification, that judges are faced with an
uphill task when directing juries along the lines of a mixed objective/subjective
test. It would be better if the expressions “objective” and “subjective”
were avoided in this context. The first element is better seen as
involving nothing more than a factual enquiry, namely, whether the accused was
provoked. The second element invites an evaluation of the quality of the
accused’s fatal response, as judged by the application of generally accepted
norms of appropriate conduct. Accordingly, the first element may be
described as the narrative issue; and the second as the normative issue.
7.33
As already indicated,
excuse considerations have a limited role to play in the proposed model.
The logic of a justification-based approach is that the defence should be
available only where the deceased was the source of the alleged provocation:
arguably, an accused cannot in any sense be said to be partially justified if
he or she kills someone other than the author of the provocation.
However, it may be thought that it would be unduly restrictive to curtail the
defence in this fashion, not least because it has traditionally been seen as a
concession to human infirmity. Accordingly, the Commission provisionally
recommends that some allowance be made for cases where the provocation
emanates from someone other than the deceased. This would reflect the
balance of authority in Canada and Victoria and is supported by dicta in
Irish decisions; indeed, the latter seems to take the plea beyond the limits
that would be imposed by a justification-based approach.[614]
A more orthodox justification-based line on this issue can be seen in
section 169(6) of the New Zealand Crimes Act 1961, which makes
exceptions for cases of mistaken identity and accident.[615]
7.34
The Commission notes
that the requirements of immediacy and gravity may present difficulties for an
accused who has been subjected to cumulative provocation; and that these
difficulties may be particularly acute in cases of domestic homicide.
Accordingly, it may be thought prudent to make express provision for cases of
this type. The statutory measures enacted in New South Wales and the
Australian Capital Territory provide appropriate models.[616]
7.35
The Commission also
feels that it is important to reiterate the point that mental disorder raises
issues that properly fall outside the scope of the defence of
provocation. The failure to introduce a defence of diminished
responsibility in Ireland has had unfortunate consequences for the plea of
provocation. On the one hand, the plea has been deployed as a necessary
but inappropriate substitute for diminished responsibility; while, on the other
hand, its refashioning for this purpose has diluted its efficiency within its
proper sphere of influence. The proposed reforms contained in the Criminal
Law (Insanity) Bill 2002 should alleviate these difficulties by providing a
more appropriate means for dealing with mentally disordered offenders.
The Commission is strongly of the view that the enactment of this measure
should precede or accompany reform of the law relating to provocation.
7.36
In the light of the
foregoing discussion, the Commission suggests the following draft formulation
of a statutory provision to reform the law of provocation:
(1)
Unlawful homicide that would otherwise be murder may be reduced to manslaughter
if the person who caused the death did so under provocation.
(2)
Anything done or said may be
provocation if –
(i)
it deprived the accused of the
power of self-control and thereby induced him or her to commit the act of
homicide; and
(ii)
in the circumstances of the case it
would have been of sufficient gravity to deprive an ordinary person of the
power of self-control.
(3)
(i)
In determining whether
anything done or said would have been of sufficient gravity to deprive an
ordinary person of the power of self-control the jury or court, as the case may
be, may take account of such characteristics of the accused as it may consider
relevant.
(ii)
A jury or court, as the case may be,
shall not take account of an accused’s mental disorder, state of intoxication
or temperament for the purposes of determining the power of self-control
exhibited by an ordinary person.
(4)
Anything done or said is deemed not
to be provocation if –
(i)
it was incited by the accused;
or
(ii)
it was done in the lawful exercise
of a power conferred by law.
(5)
Provocation is negatived
if the conduct of the accused is not proportionate to the alleged provocative
conduct or words.
(6)
There is no rule of law that
provocation is negatived if –
(i)
the act causing death did not occur immediately; or
(ii)
the act causing death was done with
intention to kill or cause serious harm.
(7)
This section shall apply in any case
where the provocation was given by the person killed, and in any case where the
offender, under provocation given by one person, by accident or mistake killed
another person.
7.37
The Draft Clause is
loosely based on section 169 of the New Zealand Crimes Act 1961.
It opens with a statement, in subclause (1), as to
the effect of a successful defence of provocation, namely that it reduces
murder to manslaughter.
7.38
Subclause (2) contains the core of the
proposed reformulated plea. In essence, it establishes a two-fold test of
provocation similar to that adopted in other common law countries. The
first element in the test is the narrative enquiry as to whether the accused
was, in fact, provoked to the point of loss of self-control.[617]
The second element is the normative evaluation of whether an ordinary person
would have lost self-control in similar circumstances. The standard
setting test is intended to curtail the unduly broad sweep of the current law
in Ireland by re-introducing an impersonal community standard into the
law. However, to prevent a retreat to the purely objective formulation
represented by decisions such as Bedder,[618]
provision is made in subclause (3)(i) to enable a jury to invest the hypothetical ordinary
person with the relevant characteristics of the accused. Thus, the
relevance or otherwise of a particular characteristic will depend on the nature
of the provocative conduct in question. For example, if an accused has
been taunted about his or her diminutive stature, height would be a relevant
characteristic but religious affiliation would not.
7.39
The latitude allowed by
subclause (3)(i) is
qualified by subclause (3)(ii): an accused’s mental
disorder, state of intoxication and idiosyncratic personality traits are
excluded from consideration. The Commission has expressed the view that
lack of self-control due to mental disorder is more appropriately treated as a
case of insanity or diminished responsibility and the exclusion of mental
disorder in subclause (3)(ii) is intended to
reinforce this position. The exclusion of intoxication and of personality
traits, such as pugnacity, is consistent with the justificatory theme that
underpins the Commission’s reform proposals. That theme is also reflected
in subclause (4), which stipulates that neither
conduct incited by the accused nor conduct done in the exercise of lawful
authority may amount to provocation. The inclusion of a proportionality
requirement in subclause (5) is also based on
justificatory considerations.
7.40
The effect of subclause (6) is two-fold. First, it reiterates, in subclause (6)(ii), the generally accepted proposition that
provocation does not negate intention. Secondly, subclause
(6)(i) is designed to cater for cases of cumulative
provocation and domestic killings by diluting the suddenness requirement.
A jury would be entitled to conclude that the defence was made out where an
accused delayed his or her fatal response, as is often the case where battered
women kill their abusers. By the same token, it would be open to a jury
to hold that a series of acts might cumulatively amount to provocation even
though the final act would not, of itself, provide a sufficient basis for a
successful plea. A similar arrangement is to be found in section 13(3)(b)
of the Australian Capital Territory Crimes Act.
7.41
Subclause (7) deals with the sources of
provocation by providing that the reformulated plea is not confined to conduct
perpetrated by the deceased: it also covers cases of mistaken or accidental
killing of someone other than the provoker, albeit that the latter must have
been the defendant's intended target. This measure is based on the
equivalent provision in section 169 of the New Zealand Crimes Act.[619]
7.42
The Commission welcomes
comments and observations on the foregoing Draft Clause. Such comments
and observations are especially welcome on the following matters:
(i)
Whether the proposed formulation makes sufficient provision for what might be
described as “the crying baby problem”?: viz,
cases where the allegedly provocative conduct, though perfectly lawful, might
nevertheless be deemed to be “of sufficient gravity to deprive an ordinary
person of the power of self-control” and thus to qualify as provocation under subclause (2)(ii). On a justification-based theory of
provocation, such cases should not be given the protection of the plea:
the author of the alleged provocation cannot on any reasonable view be said to
have committed a wrongful act. On the other hand, some might regard the
exclusion from the outset of cases of this kind as unduly harsh on defendants
and, accordingly, as unwarranted on moral grounds. However, it is perhaps
worth noting that the latter view entails an excuse-based version of the
plea and is, to that extent, incompatible with the Commission’s analysis of the
true rationale of provocation.
(ii)
Whether the proposed formulation
makes sufficient provision for the problem of marginal illegality such as might
arise in connection with subclause (4)(ii)? As
matters stand, the language of the subsection suggests that any deviation
from “the lawful exercise of a power conferred by law” is ex hypothesi unlawful and, consequently, capable of
amounting to provocation under subclause (2).
On a sharp application of the subsection, this would mean that evidence of
minor and even inadvertent excesses on the part of a police officer making an
otherwise lawful arrest would have to be left to the jury, an outcome which
some may feel is undesirable on grounds of public policy.
(iii)
Whether the Draft
Clause lends itself to the framing of comprehensible jury directions on the
issue of provocation? On one view, it should be enough for trial judges
to supply juries with a copy of the section, although the difficulties
identified at (i) and (ii) above suggest that this
may not always be enough. Arguably, jurors might also seek further
guidance on the meaning of the word “temperament” in subclause
(3)(ii). Without wishing to pre-empt discussion of this issue, that
concept can be given at least two meanings: viz,
the manner of thinking, behaving or reacting characteristic of a specific individual
(thus one speaks of this or that person having an equable temperament, a
nervous temperament, or a religious temperament); and excessive
irritability or sensitiveness. Plainly, the latter is the signification
contemplated by the subclause. But, is there a
danger that judges and juries might interpret the term to include the former
meaning, thus precluding consideration of factors that might be relevant to
gravity under subclause (3)(i)?
7.43
The Commission welcomes
submissions on this Consultation Paper by 31 January 2004.
APPENDIX
LIST OF LAW REFORM COMMISSION PUBLICATIONS
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First Programme for Examination of Certain Branches of the Law with a View to their Reform (December 1976) (Prl 5984)
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€0.13 |
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Working Paper No 1-1977, The Law Relating to the Liability of Builders, Vendors and Lessors for the Quality and Fitness of Premises (June 1977)
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€1.40 |
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Working Paper No 2-1977, The Law Relating to the Age of Majority, the Age for Marriage and Some Connected Subjects (November 1977)
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€1.27 |
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Working Paper No 3-1977, Civil Liability for Animals (November 1977)
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€3.17 |
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First (Annual) Report (1977) (Prl 6961)
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€0.51 |
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Working Paper No 4-1978, The Law Relating to Breach of Promise of Marriage (November 1978)
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€1.27 |
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Working Paper No 5-1978, The Law Relating to Criminal Conversation and the Enticement and Harbouring of a Spouse (December 1978)
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€1.27 |
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Working Paper No 6-1979, The Law Relating to Seduction and the Enticement and Harbouring of a Child (February 1979)
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€1.90 |
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Working Paper No 7-1979, The Law Relating to Loss of Consortium and Loss of Services of a Child (March 1979)
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€1.27 |
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Working Paper No 8-1979, Judicial Review of Administrative Action: the Problem of Remedies (December 1979)
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€1.90 |
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Second (Annual) Report (1978/79) (Prl 8855)
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€0.95
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Working Paper No 9-1980, The Rule Against Hearsay (April 1980)
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€2.54 |
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Third (Annual) Report (1980) (Prl 9733)
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€0.95 |
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First Report on Family Law – Criminal Conversation, Enticement and Harbouring of a Spouse or Child, Loss of Consortium, Personal Injury to a Child, Seduction of a Child, Matrimonial Property and Breach of Promise of Marriage (LRC 1-1981) (March 1981)
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€2.54 |
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Working Paper No 10-1981, Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (September 1981)
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€2.22 |
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Fourth (Annual) Report (1981) (Pl 742)
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€0.95
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Report on Civil Liability for Animals (LRC 2-1982) (May 1982)
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€1.27 |
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Report on Defective Premises (LRC 3-1982) (May 1982)
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€1.27 |
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Report on Illegitimacy (LRC 4-1982) (September 1982)
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€4.44 |
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Fifth (Annual) Report (1982) (Pl 1795)
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€0.95
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Report on the Age of Majority, the Age for Marriage and Some Connected Subjects (LRC 5-1983) (April 1983)
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€1.90 |
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Report on Restitution of Conjugal Rights, Jactitation of Marriage and Related Matters (LRC 6-1983) (November 1983)
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€1.27 |
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Report on Domicile and Habitual Residence as Connecting Factors in the Conflict of Laws (LRC 7-1983) (December 1983)
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€1.90
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Report on Divorce a Mensa et Thoro and Related Matters (LRC 8-1983) (December 1983)
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€3.81 |
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Sixth (Annual) Report (1983) (Pl 2622) |
€1.27 |
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Report on Nullity of Marriage (LRC 9-1984) (October 1984)
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€4.44 |
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Working Paper No 11-1984, Recognition of Foreign Divorces and Legal Separations (October 1984)
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€2.54 |
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Seventh (Annual) Report (1984) (Pl 3313)
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€1.27
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Report on Recognition of Foreign Divorces and Legal Separations (LRC 10-1985) (April 1985)
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€1.27 |
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Report on Vagrancy and Related Offences (LRC 11-1985) (June 1985)
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€3.81 |
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Report on the Hague Convention on the Civil Aspects of International Child Abduction and Some Related Matters (LRC 12-1985) (June 1985)
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€2.54
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Report on Competence and Compellability of Spouses as Witnesses (LRC 13-1985) (July 1985)
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€3.17 |
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Report on Offences Under the Dublin Police Acts and Related Offences (LRC 14-1985) (July 1985)
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€3.17 |
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Report on Minors’ Contracts (LRC 15-1985) (August 1985)
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€4.44 |
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Report on the Hague Convention on the Taking of Evidence Abroad in Civil or Commercial Matters (LRC 16-1985) (August 1985)
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€2.54 |
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Report on the Liability in Tort of Minors and the Liability of Parents for Damage Caused by Minors (LRC 17-1985) (September 1985)
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€3.81 |
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Report on the Liability in Tort of Mentally Disabled Persons (LRC 18-1985) (September 1985)
|
€2.54 |
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Report on Private International Law Aspects of Capacity to Marry and Choice of Law in Proceedings for Nullity of Marriage (LRC 19-1985) (October 1985)
|
€4.44 |
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Report on Jurisdiction in Proceedings for Nullity of Marriage, Recognition of Foreign Nullity Decrees, and the Hague Convention on the Celebration and Recognition of the Validity of Marriages (LRC 20-1985) (October 1985)
|
€2.54 |
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Eighth (Annual) Report (1985) (Pl 4281)
|
€1.27 |
|
Report on the Statute of Limitations: Claims in Respect of Latent Personal Injuries (LRC 21-1987) (September 1987)
|
€5.71
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Consultation Paper on Rape (December 1987) |
€7.62
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|
Report on the Service of Documents Abroad re Civil Proceedings -the Hague Convention (LRC 22-1987) (December 1987)
|
€2.54 |
|
Report on Receiving Stolen Property (LRC 23-1987) (December 1987) |
€8.89 |
|
Ninth (Annual) Report (1986-1987) (Pl 5625)
|
€1.90
|
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Report on Rape and Allied Offences (LRC 24-1988) (May 1988)
|
€3.81
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|
Report on the Rule Against Hearsay in Civil Cases (LRC 25-1988) (September 1988)
|
€3.81 |
|
Report on Malicious Damage (LRC 26-1988) (September 1988)
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€5.08
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Report on Debt Collection: (1) The Law Relating to Sheriffs (LRC 27-1988) (October 1988)
|
€6.35 |
|
Tenth (Annual) Report (1988) (Pl 6542)
|
€1.90 |
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Report on Debt Collection: (2) Retention of Title (LRC 28-1988) (April 1989)
|
€5.08
|
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Report on the Recognition of Foreign Adoption Decrees (LRC 29-1989) (June 1989)
|
€6.35 |
|
Report on Land Law and Conveyancing Law: (1) General Proposals (LRC 30-1989) (June 1989)
|
€6.35 |
|
Consultation Paper on Child Sexual Abuse (August 1989) |
€12.70
|
|
Report on Land Law and Conveyancing Law: (2) Enduring Powers of Attorney (LRC 31-1989) (October 1989)
|
€5.08 |
|
Eleventh (Annual) Report (1989) (Pl 7448) |
€1.90
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Report on Child Sexual Abuse (LRC 32-1990) (September 1990)
|
€8.89
|
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Report on Sexual Offences against the Mentally Handicapped (LRC 33-1990) (September 1990)
|
€5.08 |
|
Report on Oaths and Affirmations (LRC 34-1990) (December 1990)
|
€6.35
|
|
Report on Confiscation of the Proceeds of Crime (LRC 35-1991) (January 1991)
|
€7.62
|
|
Consultation Paper on the Civil Law of Defamation (March 1991)
|
€25.39
|
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Report on the Hague Convention on Succession to the Estates of Deceased Persons (LRC 36-1991) (May 1991)
|
€8.89
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Twelfth (Annual) Report (1990) (Pl 8292)
|
€1.90
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Consultation Paper on Contempt of Court (July 1991)
|
€25.39 |
|
Consultation Paper on the Crime of Libel (August 1991)
|
€13.97
|
|
Report on the Indexation of Fines (LRC 37-1991) (October 1991)
|
€8.25
|
|
Report on the Civil Law of Defamation (LRC 38-1991) (December 1991)
|
€8.89
|
|
Report on Land Law and Conveyancing Law: (3) The Passing of Risk from Vendor to Purchaser (LRC 39-1991) (December 1991); (4) Service of Completion Notices (LRC 40-1991) (December 1991)
|
€7.62 |
|
Thirteenth (Annual) Report (1991) (PI 9214)
|
€2.54
|
|
Report on the Crime of Libel (LRC 41-1991) (December 1991)
|
€5.08
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Report on United Nations (Vienna) Convention on Contracts for the International Sale of Goods 1980 (LRC 42-1992) (May 1992)
|
€10.16 |
|
Report on the Law Relating to Dishonesty (LRC 43-1992) (September 1992)
|
€25.39
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|
Land Law and Conveyancing Law: (5) Further General Proposals (LRC 44-1992) (October 1992)
|
€7.62
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Consultation Paper on Sentencing (March 1993) |
€25.39
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Consultation Paper on Occupiers’ Liability (June 1993)
|
€12.70 |
|
Fourteenth (Annual) Report (1992) (PN 0051)
|
€2.54 |
|
Report on Non-Fatal Offences Against The Person (LRC 45-1994) (February 1994)
|
€25.39
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|
Consultation Paper on Family Courts (March 1994) |
€12.70 |
|
Report on Occupiers’ Liability (LRC 46-1994) (April 1994)
|
€7.62
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Report on Contempt of Court (LRC 47-1994) (September 1994)
|
€12.70
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Fifteenth (Annual) Report (1993) (PN 1122)
|
€2.54
|
|
Report on the Hague Convention Abolishing the Requirement of Legalisation for Foreign Public Documents (LRC 48-1995) (February 1995)
|
€12.70
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Consultation Paper on Intoxication as a Defence to a Criminal Offence (February 1995)
|
€12.70
|
|
Report on Interests of Vendor and Purchaser in Land during the period between Contract and Completion (LRC 49-1995) (April 1995)
|
€10.16
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An Examination of the Law of Bail (LRC 50-1995) (August 1995) |
€12.70
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Sixteenth (Annual) Report (1994) (PN 1919)
|
€2.54
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Report on Intoxication (LRC 51-1995) (November 1995)
|
€2.54 |
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Report on Family Courts (LRC 52-1996) (March 1996) |
€12.70
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Seventeenth (Annual) Report (1995) (PN 2960) |
€3.17
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Report on Sentencing (LRC 53-1996) (August 1996) |
€10.16
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|
Consultation Paper on Privacy: Surveillance and the Interception of Communications (September 1996) |
€25.39
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|
Report on Personal Injuries: Periodic Payments and Structured Settlements (LRC 54-1996) (December 1996)
|
€12.70 |
|
Eighteenth (Annual) Report (1996) (PN 3760)
|
€7.62 |
|
Consultation Paper on the Implementation of The Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993 (September 1997)
|
€12.70 |
|
Report on The Unidroit Convention on Stolen or Illegally Exported Cultural Objects (LRC 55-1997) (October 1997)
|
€19.05 |
|
Report on Land Law and Conveyancing Law; (6) Further General Proposals including the execution of deeds (LRC 56-1998) (May 1998)
|
€10.16
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Consultation Paper on Aggravated, Exemplary and Restitutionary Damages (May 1998)
|
€19.05 |
|
Nineteenth (Annual) Report (1997) (PN 6218)
|
€3.81 |
|
Report on Privacy: Surveillance and the Interception of Communications (LRC 57-1998) (June 1998)
|
€25.39
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|
Report on the Implementation of the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, 1993 (LRC 58-1998) (June 1998)
|
€12.70 |
|
Consultation Paper on the Statutes of Limitation: Claims in Contract and Tort in Respect of Latent Damage (Other Than Personal Injury) (November 1998)
|
€6.35 |
|
Twentieth (Annual) Report (1998) (PN 7471)
|
€3.81 |
|
Consultation Paper on Statutory Drafting and Interpretation: Plain Language and the Law (LRC CP14-1999) (July 1999)
|
€7.62 |
|
Consultation Paper on Section 2 of the Civil Liability (Amendment) Act, 1964: The Deductibility of Collateral Benefits from Awards of Damages (LRC CP15-1999) (August 1999)
|
€9.52 |
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Report on Gazumping (LRC 59-1999) (October 1999)
|
€6.35
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|
Twenty First (Annual) Report (1999) (PN 8643)
|
€3.81 |
|
Report on Aggravated, Exemplary and Restitutionary Damages (LRC 60-2000) (August 2000)
|
€7.62 |
|
Second Programme for examination of certain branches of the law with a view to their reform: 2000-2007 (PN 9459) (December 2000)
|
€6.35 |
|
Consultation Paper on the Law of Limitation of Actions arising from Non-Sexual Abuse Of Children (LRC CP16-2000) (September 2000)
|
€7.62
|
|
Report on Statutory Drafting and Interpretation: Plain Language and the Law (LRC 61-2000) (December 2000)
|
€7.62 |
|
Report on the Rule against Perpetuities and Cognate Rules (LRC 62-2000) (December 2000)
|
€10.16 |
|
Report on the Variation of Trusts (LRC 63-2000) (December 2000)
|
€7.62 |
|
Report on The Statutes of Limitations: Claims in Contract and Tort in Respect of Latent Damage (Other than Personal Injury) (LRC 64-2001) (March 2001)
|
€7.62 |
|
Consultation Paper on Homicide: The Mental Element in Murder (LRC CP17-2001) (March 2001)
|
€6.35
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Seminar on Consultation Paper: Homicide: The Mental Element in Murder (LRC SP 1-2001)
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Twenty Second (Annual) Report (2000) (PN 10629) |
€3.81
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Consultation Paper on Penalties for Minor Offences (LRC CP18-2002) (March 2002)
|
€5.00 |
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Consultation Paper on Prosecution Appeals in Cases brought on Indictment (LRC CP19-2002) (May 2002)
|
€6.00
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Report on the Indexation of Fines: A Review of Developments (LRC 65-2002) (July 2002)
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€5.00 |
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Twenty Third (Annual) Report (2001) (PN 11964)
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€5.00 |
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Report on the Acquisition of Easements and Profits ŕ Prendre by Prescription (LRC 66-2002) (December 2002)
|
€5.00 |
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Report on Title by Adverse Possession of Land (LRC 67-2002) (December 2002)
|
€5.00 |
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Report on Section 2 of the Civil Liability (Amendment) Act 1964: The Deductibility of Collateral Benefits from Awards of Damages (LRC 68-2002) (December 2002)
|
€6.00 |
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Consultation Paper on Judicial Review Procedure (LRC CP20-2003) (January 2003)
|
€6.00 |
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Report on Penalties for Minor Offences (LRC 69-2003) (February 2003)
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€6.00 |
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Consultation Paper on Business Tenancies (LRC CP 21-2003) (March 2003)
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€5.00 |
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Report on Land Law and Conveyancing Law: (7) Positive Covenants over Freehold Land and other Proposals (LRC 70-2003) (March 2003)
|
€5.00 |
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Consultation Paper on Public Inquiries Including Tribunals of Inquiry (LRC CP 22 – 2003) (March 2003)
|
€5.00 |
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Consultation Paper on The Law and the Elderly (LRC CP 23 – 2003) (June 2003) |
€5.00
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Consultation Paper on A Fiscal Prosecutor and A Revenue Court (LRC CP 24 – 2003) (July 2003) |
€6.00
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Consultation Paper on Multi-Party Litigation (Class Actions) (LRC CP 25 – 2003) (July 2003) |
€6.00
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Consultation Paper on Corporate Killing (LRC CP 26 – 2003) (October 2003) |
€6.00 |
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[1]
The Law Reform Commission Consultation Paper on Homicide: The Mental Element
in Murder (LRC CP 17-2001).
[2]
The Law Reform Commission Consultation Paper on Corporate Killing (LRC
CP 26-2003).
[3]
[1978] IR 27.
[4]
See generally Horder Provocation and
Responsibility (Clarendon Press 1992); Green “The Jury and the English Law
of Homicide, 1200-1600” (1976) 74 Michigan LR 414; Stephen History of the
Criminal Law of England (MacMillan & Co 1883) vol
3, at 1-107; McAuley and McCutcheon Criminal
Liability (Round Hall/Sweet & Maxwell 2000) at 849-885.
[5]
A series of statutes was successively enacted during the reigns of King Henry
VII, King Henry VIII and King Edward VI which progressively limited the scope
of the benefit of clergy: 12 Hen 7, c7 (1496) no exemption for the clergy for
petty treason; 4 Hen 8, c2 (1512) no exemption for the clergy for “murder upon
malice prepensed”; 23 Hen 8, c1, sections 3 & 4
(1531); 1 Edw 6, c12, section 10 (1547); 2 Hale PC
343-348. See Baker An Introduction to English Legal History (3rd ed Butterworths 1990) at 586-589.
[6]
See 4 Hen 8, c2 (1512).
[7]
Coke defined malice aforethought as “when one compasseth
to kill, wound, or beat another, and doth it sedato
animo. This is said in law to be malice
forethought prepensed – malitia
praecogitata. This malice is so
odious in law, as though it be intended against one, it shall be extended
towards another”: 3 Co Inst 51.
[8]
As a result of
this restriction on the benefit of clergy, only manslaughter remained a clergyable offence and this involved punishment of up to
one year’s imprisonment and burning of the thumb.
[9]
See Horder Provocation and Responsibility
(Clarendon Press 1992) at 16.
[10]
See McAuley and McCutcheon Criminal Liability
(Round Hall/Sweet & Maxwell 2000) at 852; Stephen History of the
Criminal Law of England (MacMillan & Co 1883) at 55; Horder Provocation and Responsibility (Clarendon
Press 1992) at 16.
[11]
This presumption was a rebuttable one; see Horder Provocation
and Responsibility (Clarendon Press 1992) at 16.
[12]
Fost 291.
[13]
1 Hawk PC
chapter 31, section 18: “… and therefore that not such killing only as proceeds
from premeditated hatred or revenge against the person killed, but also in many
other cases, such as is accompanied with those circumstances that shew the heart to be perversly
wicked, is adjudged to be of malice prepense, and
consequently murder.”
[14]
See 1 Hale
PC 455: “When one voluntarily kills another without any provocation, it is
murder, for the law presumes it to be malicious.…”
[15]
The
Statute of Stabbing (1604) 2 Jas 1, c8, which was initially introduced to
deal with conflicts between the English and Scots under James I, is referred to
in Stephen History of the Criminal Law of England (MacMillan & Co
1883) at 47-48.
[16]
3 Co Inst
57. See also 1 Hawk PC chapter 30, section 1: “That which is without Malice is
called Manslaughter, or sometimes Chance-medley, by which we understand such
killing happens either on a sudden Quarrel, or in the commission of an unlawful
Act, without any deliberate Intention of doing any Mischief at all.”
[17]
See Stephen History
of the Criminal Law of England (MacMillan & Co 1883) vol 3, at 58-60. The concept of chance-medley eventually
fell into desuetude: R v Semini [1949] 1 KB
405.
[18]
1 Hale PC 455.
[19]
Ibid at
457. See also Fost CC 290-291; 1 East PC 235. East
(writing in 1803) expressly employed the notion of proportionality in the
context of provocation: “it must again be observed, that the punishment must
not be greatly disproportionate to the offence” (at 235); “but to have received
such a provocation as the law presumes might in human frailty heat the blood to
a proportionable degree of resentment…” (at 238).
[20]
1 Hale PC
455.
[21]
Ibid at
455, citing Brains’ case (1600) Cro Eliz 778:
“Watts came along by the shop of Brains, and distorted his mouth, and smiled at
him, it is murder, for it was no such provocation.”
[22]
1 Hale PC
455: “If A be passing in the street, and B meeting him, (there being convenient
distance between A and the wall) take the wall of A and thereupon A kills him,
this is murder”.
[23]
Ibid at
456.
[24]
Ibid at
457.
[25]
Ibid at
455-456.
[26]
Ibid at
456 citing Morley’s case (1666) Kel 54. East
suggested that Hale misinterpreted that case and argued that “no such
proposition is to be found” in the report: he felt that the words in question “ought
to be accompanied by some act denoting an immediate intention of following them
up by an actual assault.” 1 East PC 233.
[27]
(1706) Kel 119.
[28]
1 Hawk PC
chapter 31, section 27.
[29]
Ibid at
section 33.
[30]
Ibid at
section 34: “But if a person so provoked, had beaten the other only in such a
manner, that it might plainly appear that he meant not to kill, but only to
chastise him; or if he had refrained himself till the other had put himself on
his guard, and then in fighting with him had killed him, he had been guilty of
manslaughter only.”
[31]
1 Hawk PC
chapter 31, section 36. The other examples cited in this section are “the
defence of his person from an unlawful arrest; or in the defence of his house
from those who claiming title to it attempt forcibly to enter it, and to that
purpose shoot at it, etc or in the defence of his possession of a room in a publick house, from those who attempt to turn him out of
it, and thereupon draw their swords upon him; in which case the killing of the
assailant hath been holden by some to be justifiable:
but it is certain, that it can amount to no more than manslaughter.” The latter
cases are better thought of as cases of excessive defence rather than
manslaughter.
[32]
Ibid at
section 23.
[33]
Ibid at
section 29.
[34]
Ibid at
section 30.
[35]
Fost 296. See also 1 East PC 232: “[if] the blood has
reasonable time to cool … it will be murder.”
[36]
Fost 296.
[37]
(1706) Kel 119.
[38]
It was later
held that the defence might be available to a father who witnesses his son
being sodomised: R v Fisher (1837) 8 Car & P 182. At common law,
adultery and sodomy were recognised categories of provocation as they were
considered to be infringements of one’s proprietary rights in the body of the
wife or son. See, further, Alldridge “The Coherence
of Defences” [1983] Crim LR 665, 669-670.
[39]
(1671) 1
Vent 158; 86 ER 108. Also reported as R v Maddy
2 Keble 829; 84 ER 524 and as R v Manning T Ryam
212; 83 ER 112.
[40]
Maddy’s case (1671) 1 Vent 158, 158-159.
[41]
Ashworth
“The Doctrine of Provocation” [1976] Camb LJ 292,
294.
[42]
(1706) Kel 119.
[43]
See
paragraph 1.12 above.
[44]
(1837) 8 Car
& P 115.
[45]
In R v
Hayward (1833) 6 Car & P 157, 159 Tindal CJ described the purpose of
the principle as to give “compassion to human infirmity.”
[46]
R v
Kirkham (1837) 8 Car & P 115, 117.
[47]
Ibid at
119 per Coleridge J. Similar considerations are evident in the earlier
decision R v Oneby (1727) 2 Ld Raym 1485, 1496 where Lord Raymond stated that “a man ought
to keep [anger and passion] under and govern.”
[48]
Stephen History
of the Criminal Law of England (MacMillan & Co 1883) vol 3, at 87.
[49]
(1869) 11
Cox CC 336.
[50]
Ibid at 338.
[51]
R v Welsh
(1869) 11 Cox CC 336.
[52]
R v Welsh
(1869) 11 Cox CC 336.
[53]
Ibid.
[54]
Ibid at
338 per Keating J: “It has been laid down that mere words or
gestures will not be sufficient to reduce the offence, and at all events the
law is clear that the provocation must be serious.”
[55]
(1844) 1 Car
& K 556. However, Keating J also noted the “very peculiar case” of R
v Smith 4 F & F 1066, which Keating J summarised as follows: “[The
trial judge held] that “an assault of a very offensive nature, as spitting in a
person’s face, coupled with words of an extremely insulting character, may be
sufficient to reduce the crime to manslaughter”: (1869) 11 Cox CC 336, 338.)
[56]
See Macklem and Gardner “Provocation and Pluralism” (2001) 64
MLR 815, 828: “[T]hat terminology [ie
‘subjective element’] is misleading. It is better described as the narrative
element of the defence – that is to say, the story of the defendant’s
actual reactions, to which objective standards are applied.” (Emphasis in
original.)
[57]
Horder Provocation and Responsibility (Clarendon
Press 1992) at 97 states: “Keating J assumes that, when people are angered by a
trivial provocation and kill in response to it, they did not lose their
self-control because of impetuosity, because of the sudden displacement of
reason from its controlling seat within the soul. Keating J supposes
instead that such people give way to their passions, indulge them rather
than conform their actions, as it is supposed that they could have done, to the
dictates of reason.” (Emphasis in original.)
[58]
R v Welsh
(1869) 11 Cox CC 336, 338.
[59]
R v Mawgridge (1706)
Kel 119.
[60]
R v Welsh
(1869) 11 Cox CC 336.
[61]
Ibid.
[62]
Glanville
Williams “Provocation and the Reasonable Man” [1954] Crim
LR 740, 741 takes the view that “there was a superficial attraction in
allotting him a new task in the law of provocation.” He also suggests that
“[t]his new mode of statement seems to have been the invention of Keating J in Welsh
(1869) 11 Cox 336.”
[63]
R v Welsh
(1869) 11 Cox CC 336.
[64]
Stephen History
of the Criminal Law of England (MacMillan & Co 1883) vol 3, at 81 sets out the definition for provocation in
section 176 of the Draft Code (Code appended to the Report of the Criminal Code
Commission (1879)). Article 245 from Stephen A Digest of the
Criminal Law (6th ed MacMillan & Co 1904) at
185 is largely based on section 176 of the Draft Code and it provides:
“Homicide, which would otherwise be murder, is
not murder, but manslaughter, if the act by which death is caused is done in
the heat of passion, caused by provocation, as hereinafter defined, unless the
provocation was sought or voluntarily provoked by the offender as an excuse for
killing or doing bodily harm.” Article 246 of the Digest, at 188,
deals with the elements necessary for provocation: “Provocation does not
extenuate the guilt of homicide unless the person provoked is at the time when
he does the act deprived of the power of self-control by the provocation which
he has received; and in deciding the question whether this was or was not the
case, regard must be had to the nature of the act by which the offender causes
death, to the time which elapsed between the provocation and the act which
caused death, to the offender’s conduct during that interval, and to all other
circumstances tending to show the state of his mind.”
[65]
[1978] IR
27.
[66]
R v Welsh
(1869) 11 Cox CC 336.
[67]
Ibid at
338.
[68]
(1871) 11
Cox CC 674.
[69]
Ibid at
675 (emphasis added).
[70]
Holmes v
DPP [1946] AC 588, 598: “The whole doctrine
relating to provocation depends on the fact that it causes, or may cause, a
sudden and temporary loss of self-control whereby malice, which is the
formation of an intention to kill or to inflict grievous bodily harm, is negatived. Consequently, where the provocation inspires an
actual intention to kill…, or to inflict grievous bodily harm, the doctrine
that provocation may reduce murder to manslaughter seldom applies. Only one
very special exception has been recognized, viz., the actual finding of spouse
in the act of adultery. This has always been treated as an exception to the
general rule: R v Manning [T Raym. 212].”
[71]
Attorney
General for Ceylon v Perera [1953] AC 200.
[72]
Ibid at
206.
[73]
Attorney
General for Ceylon v Perera [1953] AC 200.
[74]
[1946] AC 588. See footnote 67 above.
[75]
[1963] AC
220, 227.
[76]
People
(DPP) v MacEoin [1978] IR 27.
[77]
[1999] 2
ILRM 71.
[78]
People
(DPP) v Bambrick [1999] 2 ILRM 71, 74.
[79]
Parker v
The Queen [1964] 2 All ER 641, 651: “[I]t has long been recognised that the defence of
provocation may apply even where an intent to kill has been created.”; R v
Martindale [1966] 3 All ER 305; R v Barton [1977] 1 NZLR 295, 299:
“It is, however, quite clear that a defence of provocation is open even though
an intent to kill or intent to kill recklessly is established, provided such
intent arises from the provocation”; Straker
v R (1977) 15 ALR 103; R v Cameron (1992) 71 CCC (3d) 272, 274: “The
statutory defence of provocation does not detract from the mens
rea required to establish murder, but rather,
where applicable, serves to reduce homicides committed with the mens rea necessary
to establish murder to manslaughter.”
[80]
R v Welsh
(1869) 11 Cox CC 336.
[81]
Husak “Partial Defences” (1998) 11 Can JL & Juris 167, 170.
[82]
Austin “A Plea for Excuses” (1956) 57 Proceedings of the Aristotelian
Society 3; Ashworth Principles of Criminal Law (3rd ed Oxford University Press 1999) at 238; Horder Provocation and Responsibility (Clarendon
Press 1992) at 111; McAuley and McCutcheon Criminal
Liability (Round Hall/Sweet & Maxwell 2000) at 855-856.
[83]
According to Dressler “Provocation: Partial Justification or Partial Excuse?”
(1988) 51 MLR 467, 468, the distinction between justification and excuse is
important for three reasons: “First, if lawmakers act thoughtfully, the
elements of the defense, and therefore its
applicability in individual cases, will differ depending on whether the defense is viewed as a (partial) justification or as an
excuse. Second, careful attention to the justification-excuse distinction
can tell us a great deal about how we should think about analogous defenses [such as self-defense
and duress]…. Third, the criminal law ought to send clear moral messages.
There is considerable moral difference between saying that an intentional
killing is warranted (partially or fully), and saying that it is entirely wrong
but that the actor is partially or wholly morally blameless for his wrongful conduct.”
[84]
McAuley and McCutcheon Criminal Liability (Round
Hall/Sweet & Maxwell 2000) at 853.
[85]
McAuley “Anticipating the Past: The Defence of Provocation
in Irish Law” (1987) 50 MLR 133.
[86]
Ibid
at 150-151.
[87]
Ibid
at 156.
[88]
Dressler “Provocation: Partial Justification or Partial Excuse?” (1988) 51 MLR
467, 480.
[89]
Horder Provocation and Responsibility (Clarendon
Press 1992) at 111.
[90]
Ashworth Principles
of Criminal Law (3rd ed. Oxford University Press 1999) at 238.
[91]
See Austin
“A Plea for Excuses” (1956) 57 Proceedings of the Aristotelian Society
3; Ashworth Principles of Criminal Law (3rd ed
Oxford University Press 1999) at 238; Horder Provocation
and Responsibility (Clarendon Press 1992) at 111; McAuley
and McCutcheon Criminal Liability (Round Hall/Sweet & Maxwell 2000)
at 855-856.
[92]
Ashworth “The Doctrine of Provocation” [1976] Camb LJ
292, 309.
[93]
McAuley and McCutcheon Criminal Liability (Round
Hall/Sweet & Maxwell 2000) at 853-856.
[94]
R v Welsh
(1869) 11 Cox CC 336.
[95]
R v Keite (1697) 1 Ld Raym 139.
[96]
See
paragraphs 1.08-1.21 above.
[98]
Ibid at
159-160.
[99]
For discussion, see Chapter 4 below.
[100]
[1975] QB
691.
[101]
Central
Criminal Court (Finnegan J) October 2000 and April 2001.
[102]
Central
Criminal Court (Finnegan J) October 2000 and April 2001, reported in The
Irish Times “Husband killed his wife in a ‘moment of rage’” 11 October 2000
at 4.
[103]
Central Criminal Court (Finnegan J) October 2000 and April 2001, reported in The
Irish Times “Documents destroyed by fire in office of accused” 6 October
2000 at 4 and The Irish Times “Husband killed his wife in a ‘moment of
rage’” 11 October 2000 at 4.
[104]
Central
Criminal Court (Finnegan J) October 2000 and April 2001, reported in The
Irish Times “Victim’s father tells court of disappointment with sentence” 4
April 2001 at 4.
[105]
R v Smith
[2001] 1 AC 146.
[106]
Austin “A plea for Excuses” (1956) 57 Proceedings of the Aristotelian
Society 3.
[107]
People
(DPP) v MacEoin [1978] IR 27, 34.
[108]
People (DPP)
v Davis [2001] 1 IR 146, 157.
[109]
See
paragraphs 7.28-7.35 below.
[110]
R
v Smith [2001] 1 AC 146, 159 per Lord
Hoffmann.
[111]
(1869) 11 Cox CC 336.
[112]
Ibid.
[113]
Ibid
at 338 per Keating J.
[114]
R
v Welsh (1869) 11 Cox CC 336.
[115]
For an early definition of negligence in a tort context see Blyth v
Birmingham Waterworks Co (1856) 11 Ex 781, 784 per Alderson B:
“Negligence is the omission to do something which a reasonable man, guided upon
those considerations which ordinarily regulate the conduct of human affairs, would
do or doing something which a prudent and reasonable man would not do.”
See also Glanville Williams “Provocation and the Reasonable Man” [1954] Crim LR 740, 741.
[117]
Ibid
at 172.
[118]
R
v Welsh (1869) 11 Cox CC 336.
[119]
[1914] 3 KB 1116.
[120]
R v Lesbini [1914] 3 KB 1116.
[121]
[1942] AC 1.
[122]
Ibid at
9.
[123]
[1946] AC
588.
[124]
Holmes v
DPP [1946] AC 588, 597.
[125]
[1949] 1 All
ER 932.
[126]
Ibid at
932-933.
[127]
R v Duffy
[1949] 1 All ER 932, 932.
[128]
Ibid.
[129]
[1954] 2 All
ER 801.
[130]
Ibid.
[131]
Ibid at
802.
[132]
Mancini v DPP [1942] AC 1.
[133]
Bedder v DPP [1954] 2 All ER 801, 804.
[134]
R v Lesbini [1914] 3 KB 1116.
[135]
R v Welsh
(1869) 11 Cox CC 336.
[136]
R v Lesbini [1914] 3 KB 1116, 1120.
[137]
R v Welsh
(1869) 11 Cox CC 336.
[138]
Bedder v DPP [1954] 2 All ER 801.
[139]
Smith and
Hogan Criminal Law (3rd ed Butterworths
1973) at 241; Ashworth “The Doctrine of Provocation” [1976] Camb
LJ 292, 300-302.
[140]
Ashworth
“The Doctrine of Provocation” [1976] Camb LJ 292,
301.
[141]
Ibid.
[142]
Bedder v DPP [1954] 2 All ER 801.
[143]
Report of
the Royal Commission on Capital Punishment (Cmd
8932-1953).
[144]
It might be
added that the abolition of the death penalty and its replacement with a
sentence of mandatory imprisonment for life ensured that concerns about the
objective test would be kept alive: see R v Smith [2001] 1 AC 146, 161 per Lord
Hoffmann.
[145]
R v Lesbini [1914] 3 KB 1116.
[146]
R v Duffy
[1949] 1 All ER 932.
[147]
R v Camplin [1978] 1 All ER 1236.
[148]
Bedder v DPP [1954] 2 All ER 801.
[149]
DPP v Camplin [1978] AC 705.
[150]
R v Camplin [1978] 1 All ER 1236, 1239.
[151]
Ibid
at 1241.
[152]
Ibid at
1242.
[153]
Bedder v DPP [1954] 2 All ER 801.
[154]
R v Camplin [1978] 1 All ER 1236, 1240.
[155]
Ibid at
1240-1241.
[156]
R v Camplin [1978] 1 All ER 1236.
[157]
DPP v
Camplin [1978] AC 705, 716.
[158]
DPP v
Camplin [1978] AC 705, 718.
[159]
DPP v
Camplin [1978] AC 705.
[160]
[1996] AC
90.
[161]
R v Morhall [1996] AC 90, 98-99; see also Smith
“Commentary” [1993] Crim LR 957, 958.
[162]
DPP v
Camplin [1978] AC 705.
[163]
“A proper
direction to the jury should explain “that the reasonable man … is a person having
the power of self-control to be expected of an ordinary person of the sex and
age of the accused, but in other respects sharing such of the accused’s
characteristics as they think would affect the gravity of the provocation to
him”: DPP v Camplin [1978] AC 705, 718 per Lord Diplock. Authority in other jurisdictions confines the
concession to age and excludes sex: see R v Hill (1986) 25 CCC (3d) 322,
351-352 per Wilson J (dissenting judgment); Stingel
v R (1990) 171 CLR 312, at paragraphs 24-26; Masciantonio
v R (1995) 183 CLR 58.
[164]
DPP v
Camplin [1978] AC 705, 717; (note that this passage,
as reported in [1978] 2 All ER 168, 174, differs: “… to require old heads on
young shoulders is inconsistent with the law’s compassion of human
infirmity…”).
[165]
R v Morhall [1996] AC 90.
[166]
DPP v
Camplin [1978] AC 705.
[167]
R v
Alexander (1913) 9 Cr App R 139.
[168]
Ashworth Principles
of Criminal Law (3rd ed Oxford University Press
1999) at 281-282, 290.
[169]
See R v Ahluwalia [1992] 4 All ER 889; R v Dryden
[1995] 4 All ER 987; R v Humphreys [1995] 4 All ER 1008; R v Thornton
(No 2) [1996] 2 All ER 1023.
[171]
Ibid.
See Archbold Criminal Pleading, Evidence and
Practice (1999 ed Sweet & Maxwell) at
paragraphs 19-62.
[172]
Smith and
Hogan Criminal Law (9th ed Butterworths
1999) at 363.
[173]
R v Smith
[2001] 1 AC 146.
[174]
DPP v
Camplin [1978] AC 705.
[175]
R v Smith
[2001] 1 AC 146.
[176]
R v Smith
[1999] QB 1079.
[177]
DPP v Camplin [1978] AC 705.
[178]
R v Smith [2001] 1 AC 146, 153 as summarised by Lord Slynn of Hadley.
[179]
R v Smith
[2001] 1 AC 146.
[180]
Ibid at
159.
[181]
Luc Thiet Thuan v The Queen [1997] AC 131; see paragraph 3.30 above.
[182]
R v Smith
[2001] 1 AC 146.
[183]
Ibid at
167 per Lord Hoffmann, citing Yeo Unrestrained
Killings and the Law (Oxford University Press 1998) at 61 as to why jurors
find the distinction so difficult: “[It] bears no conceivable relationship with
the underlying rationales of the defence of provocation….”
[184]
R v Smith
[2001] 1 AC 146, 166 per Lord
Hoffmann.
[185]
Ibid at
169.
[186]
Ibid.
[187]
(1990) 171
CLR 312.
[188]
R v Smith
[2001] 1 AC 146, 169.
[189]
Ibid
at 155.
[190]
R v Smith
[2001] 1 AC 146.
[191]
Smith
“Commentary” [2000] Crim LR 1005; Gardner and Macklem “Compassion without Respect: Nine Fallacies in R
v Smith” [2001] Crim LR 623; Macklem
and Gardner “Provocation and Pluralism” (2001) 64 MLR 815. See also Smith and
Hogan Criminal Law (9th ed Butterworths
1999) at 363: “It is hard to see how [the Court of Appeal decision in Smith]
can be upheld without doing violence to the Homicide Act”; Ashworth Principles
of Criminal Law (3rd ed Oxford University Press
1999) at 282.
[192]
DPP v
Camplin [1978] AC 705.
[193]
Smith “Commentary” [2000] Crim LR 1005.
[194]
R v Morhall [1996] AC 90.
[195]
Gardner and Macklem “Compassion without Respect: Nine Fallacies in R
v Smith” [2001] Crim LR 623, 631, state: “When
[Lord Hoffmann] cites with approval Lord Diplock’s
remark in Camplin that the reasonableness
standard is to be relativised to ‘society as it is
today’ does he mean that it is to be relativised to
the standards commonly invoked and relied upon today, never mind how
awful?... The jury need to ask themselves what standards of anger and
self-control are right, not what standards are regarded or treated as
right by them, or by society at large, or by some other social constituency.”
[196]
Ibid at 635;
the same authors trenchantly observed (at 634) that the decision is
“lightweight. It replaces important moral distinctions in the law with
half-baked pseudo-theories and worthy-sounding platitudes. In its attitude to
the jury, it manifests an unholy alliance of judicial cowardice and judicial
condescension.”
[197]
Bedder v DPP [1954] 2 All ER 801.
[198]
DPP v
Camplin [1978] AC 705.
[199]
R v Morhall [1996] AC 90.
[200]
R v Smith
[2001] 1 AC 146.
[201]
R v Smith
[2001] 1 AC 146.
[202]
DPP
v Camplin [1978] AC 705.
[203]
[1978] IR 27. The Court comprised Finlay P, Kenny and McMahon JJ.
The judgment was delivered by Kenny J.
[204]
Ibid.
[205]
Ibid
at 30-31, citing in support of this proposition Attorney-General for
Ceylon v Perera [1953] AC 200; Lee Chun-Chuen v The Queen [1963] AC 220; Straker
v The Queen (1977) 13 ALR 103.
[206]
People
(DPP) v MacEoin [1978] IR 27, 30.
[207]
People (DPP) v MacEoin [1978] IR 27.
[208]
Bedder v DPP [1954] 2 All ER 801.
[209]
DPP
v Camplin [1978] AC 705.
[210]
Ibid
at 719-720 per Lord Morris of Borth-y-Gest.
[211]
DPP v
Camplin [1978] AC 705.
[212]
Bedder v DPP [1954] 2 All ER 801.
[213]
DPP v
Camplin [1978] AC 705 was issued on 6 April 1978 and
People (DPP) v MacEoin [1978] IR 27 on 17
April 1978.
[214]
People
(DPP) v MacEoin [1978] IR 27.
[215]
Ibid
at 34.
[216]
Ibid at
34.
[217]
Moffa v The Queen (1977) 138 CLR 601.
[218]
Ibid
at 625.
[219]
Moffa v The Queen (1977) 138 CLR 601, 626.
[220]
Ibid.
[221]
Ibid
at 626-627.
[222]
Moffa v The Queen (1977) 138 CLR 601.
[223]
People
(DPP) v MacEoin [1978] IR 27.
[224]
Ibid at
32.
[225]
Ibid.
[226]
Moffa v The Queen (1977) 138 CLR 601, 625.
[227]
[1972] IR
416, 422.
[228]
People
(DPP) v MacEoin [1978] IR 27, 34.
[229]
Smith and
Hogan Criminal Law (2nd ed Butterworths
1969) at 213-215; Russell on Crime (12th ed
Stevens 1964) at chapter 29; Williams “Provocation and the Reasonable Man”
[1954] Crim LR 740.
[230]
People
(DPP) v MacEoin [1978] IR 27, 34.
[231]
For
discussion, see paragraph 6.06 below.
[232]
Stannard “Making Sense of MacEoin”
(1998) 8 ICLJ 20.
[233]
Ibid at
22.
[234]
People
(DPP) v MacEoin [1978] IR 27, 34 (emphasis
added).
[235]
Stannard “Making Sense of MacEoin”
(1998) 8 ICLJ 20, 22.
[236]
McAuley “Anticipating the Past” (1987) 50 MLR 133, 153-154.
[237]
People
(DPP) v MacEoin [1978] IR 27.
[238]
Stannard “Making Sense of MacEoin”
(1998) 8 ICLJ 20, 24.
[239]
[2000] 2 IR
1. The Court comprised Barrington, McCracken and Kearns JJ. The
judgment of the Court was delivered by Barrington J.
[240]
People
(Attorney General) v Dwyer [1972] IR 416.
[241]
McAuley and McCutcheon Criminal Liability (Round
Hall/Sweet & Maxwell 2000) at 875, footnote 140.
[242]
People
(DPP) v MacEoin [1978] IR 27.
[243]
Court of
Criminal Appeal 11 March 1997. The Court comprised O’Flaherty, Carroll
and Geoghegan JJ. The judgment of the Court was delivered by O’Flaherty
J.
[244]
People
(DPP) v MacEoin [1978] IR 27.
[245]
People
(DPP) v Mullane Court of Criminal Appeal 11 March
1997 at 8.
[246]
People
(DPP) v Mullane Court of Criminal Appeal 11 March
1997 at 7.
[247]
People
(DPP) v MacEoin [1978] IR 27.
[248]
People
(DPP) v Mullane Court of Criminal Appeal 11 March
1997.
[249]
Stannard “Making Sense of MacEoin”
(1998) 8 ICLJ 20.
[250]
[1998] 2 IR
439. The Court
comprised O’Flaherty,
Geoghegan and McGuinness JJ. The judgment of the Court was delivered by Geoghegan J.
[251]
People
(DPP) v Mullane Court of Criminal Appeal 11 March
1997.
[252]
People
(DPP) v Noonan
[1998] 2 IR 439, 442.
[253]
Court of Criminal Appeal 30 November 1998 (ex tempore).
[254]
[1999] 2
ILRM 71. The Court comprised Lynch, Carroll and Cyril Kelly JJ. The
judgment of the Court was delivered by Lynch J.
[255]
The trial
judge’s direction was cited at People (DPP) v Bambrick
[1999] 2 ILRM 71, 75.
[256]
People
(DPP) v Kelly [2000] 2 IR 1.
[257]
People
(DPP) v MacEoin [1978] IR 27.
[258]
People
(DPP) v Mullane Court of Criminal Appeal 11 March
1997.
[259]
People (DPP)
v Kelly [2000] 2 IR 1.
[260]
Ibid at
8.
[261]
Ibid
at 9.
[262]
People
(DPP) v Kelly [2000] 2 IR 1, 11. The subjective test was confirmed in
two subsequent decisions: People (DPP) v Boyle [2000] 2 IR 13; People
(DPP) v Heaney Court of Criminal Appeal 17 January 2000. In each case
a brief ex tempore judgment was delivered.
[263]
[2001] 1 IR
146. The Court comprised Hardiman, O’Higgins
and Kearns JJ. The judgment of the Court was delivered by Hardiman J.
[264]
Ibid at
154.
[265]
People
(DPP) v MacEoin [1978] IR 27.
[266]
People
(DPP) v Davis [2001] 1 IR 146, 159.
[267]
Ibid at
157.
[268]
People
(DPP) v Kelly [2000] 2 IR 1.
[269]
People
(DPP) v Davis [2001] 1 IR 146, 157.
[270]
People
(DPP) v Davis [2001] 1 IR 146, 158-159.
[271]
Ibid at
159.
[272]
Ibid.
[273]
People
(DPP) v Davis [2001] 1 IR 146.
[274]
Ibid
at 159.
[275]
Ibid.
[276]
People
(DPP) v MacEoin [1978] IR 27.
[277]
In People
(DPP) v Davis [2001] 1 IR 146, 159-160, the Court quoted the example
provided by McAuley and McCutcheon Criminal
Liability (Round Hall/Sweet & Maxwell 2000) at 877 of a white
supremacist who kills in the throes of a racist passion.
[278]
People
(DPP) v Davis [2001] 1 IR 146, 160.
[279]
In a more
recent decision, a differently constituted Court of Criminal Appeal stated that
“the law applies a purely subjective test”: People (DPP) v McDonagh [2001] 3 IR 201, 207. In the event, the Court
concluded that there was insufficient evidence of provocation and it does not
appear that People (DPP) v Davis [2001] 1 IR 146 was cited.
[280]
People
(DPP) v Davis [2001] 1 IR 146.
[281]
Ibid at
155.
[282]
Ibid
at 158.
[283]
Ibid
at 156.
[284]
Ibid
at 158.
[285]
Ibid
at 155. (Emphasis added).
[286]
[2001] 3 IR
201. The Court comprised Murray, Johnson and Kelly JJ. The judgment
of the Court was delivered by Murray J.
[287]
Ibid at
209.
[288]
Court of
Criminal Appeal 22 March 2002. The Court comprised Keane CJ, Carroll and
Butler JJ. The judgment of the Court was delivered by Keane CJ.
[289]
People
(DPP) v Kelly [2000] 2 IR 1.
[290]
Ibid at
11.
[291]
People
(DPP) v Davis [2001] 1 IR 146.
[292]
People
(DPP) v McDonagh [2001] 3 IR 201.
[293]
Ibid at
208.
[294]
Ibid at
211 citing a passage from People (DPP) v Kelly [2000] 2 IR 1, 10, which
in turn cites R v Duffy [1949] 1 All ER 932, 932 per Devlin J.
[295]
People
(DPP) v Kelly [2000] 2 IR 1, 11.
[296]
People
(DPP) v Davis [2001] 1 IR 146, 157.
[297]
R v
McCarthy [1954] 2 All ER 262.
[298]
DPP v
Camplin [1978] AC 705.
[299]
R v
Newell (1980) 71 Cr App R 331
[300]
R v Morhall [1996] AC 90.
[301]
Ibid.
[302]
People (DPP) v
Kelly [2000] 2 IR 1.
[303]
Ibid at 11.
[304]
People (DPP) v MacEoin [1978] IR 27.
[305]
See Goldberg
“Developments in Criminal Law” [2000] 2(3) P & P 15, 16: “It seems that
after more than twenty years of case law in which provocation has been a
defence, the issue of the application of the subjective test remains
problematical for both judge and jury.”
[306]
People (DPP) v
Kelly [2000] 2 IR 1.
[307]
Central Criminal Court (Finnegan J) October 2000 and April 2001.
[308]
People (DPP) v
Hennessy Central Criminal Court (Finnegan J) October 2000 and April 2001,
reported in The Irish Times “Victim’s father tells court of
disappointment with sentence” 4 April 2001 at 4.
[309]
People (DPP) v
Hennessy Central Criminal Court (Finnegan J) October 2000 and April 2001.
[310]
People (DPP) v
Kelly [2000] 2 IR 1.
[311]
People (DPP) v
Davis [2001] 1 IR 146.
[312]
People (DPP) v MacEoin [1978] IR 27.
[313]
Ibid.
[314]
For a discussion of the issues raised by subsection(4), see paragraph 7.42(ii)
below.
[315]
R v Campbell (1977) 38 CCC (2d) 6 (Ontario Court of Appeal).
[316]
R
v Doucette, Dongen and McNutt (1960) 129 CCC 102
(Ontario Court of Appeal).
[317]
Section 13 of the Crimes Act 1900 (ACT) states:
“(1)
Where, on a trial for murder:
(a)
it appears that the act or omission causing death occurred under provocation;
and
(b)
but for this subsection
and the provocation, the jury would have found the accused guilty of murder;
the jury shall acquit the accused of murder and find him or her guilty of
manslaughter.
(2)
For the purposes of
subsection (1), an act or omission causing death shall be taken to have occurred
under provocation where:
(a)
the act or omission was the
result of the accused’s loss of self-control induced by any conduct of the
deceased (including grossly insulting words or gestures) towards or affecting
the accused; and
(b)
the conduct of the
deceased was such as could have induced an ordinary person in the position of
the accused to have so far lost self-control:
(i)
as to have formed an
intent to kill the deceased; or
(ii)
as to be recklessly
indifferent to the probability of causing the deceased’s death;
whether that conduct of the deceased occurred immediately before the act or
omission causing death or at any previous time.
(3)
For the purpose of
determining whether an act or omission causing death occurred under
provocation, there is no rule of law that provocation is negatived
if:
(a)
there was not a
reasonable proportion between the act or omission causing death and the conduct
of the deceased that induced the act or omission;
(b)
the act or omission
causing death did not occur suddenly; or
(c)
the act or omission
causing death occurred with any intent to take life or inflict grievous bodily
harm.
(4)
Where, on a trial for
murder, there is evidence that the act or omission causing death occurred under
provocation, the onus of proving beyond reasonable doubt that the act or
omission did not occur under provocation lies on the prosecution.
(5)
This section does not
exclude or limit any defence to a charge of murder.”
[318]
Section 160 of the Criminal Code (Tasmania) states:
“(1)
Culpable homicide, which would otherwise be murder, may be reduced to manslaughter
if the person who causes death does so in the heat of passion caused by sudden
provocation.
(2)
Any wrongful act or
insult of such a nature as to be sufficient to deprive an ordinary person of
the power of self-control, and which, in fact, deprives the offender of the
power of self-control is provocation, if the offender acts upon it on the
sudden, and before there has been time for his passion to cool.
(3)
Whether the conditions
required by subsection (2) were or were not present in the particular case is a
question of fact, and the question whether any matter alleged is, or is not,
capable of constituting provocation is a matter of law.
(4)
No one shall be held to
give provocation to another only by doing that which he had a legal right to
do, or by doing anything which the offender incited him to do in order to
provide the offender with an excuse for killing or doing bodily harm to any
person.
(5)
Whether or not an
illegal arrest amounts to provocation depends upon all the circumstances of the
particular case, and the fact that the offender had reasonable grounds for
believing, and did, in fact, believe, that the arrest was illegal, shall be
taken into consideration in determining the question whether there was
provocation or not.”
[319]
For discussion, see R v Farrar [1992] 1 VR 207.
[320]
1985 SCCR 219.
[321]
Ibid at 220 per Lord Mayfield.
[322]
See Jones and Christie Criminal Law (2nd ed W
Green/Sweet & Maxwell 1996) at 223.
[323]
MacNeill v McTaggert
(1976) SCCR Supp 150.
[324]
See
generally Burchell and Milton Principles of
Criminal Law (rev ed Juta
& Co 1994) at chapter 26.
[325]
1925 AD 160.
[326]
1981 (1) SA
1097 (A).
[327]
1983 (1) SA
12 (A); see also S v Lesch 1983 (1) SA 814
(O).
[328]
1987 (1) SA
940 (A).
[329]
S v Wiid 1990 (1) SACR 561 (A).
[330]
1985 (3) SA
256 (C).
[331]
Burchell and Milton Principles of Criminal Law (rev ed Juta & Co 1994) at 238.
[332]
S v
Arnold 1985 (3) SA 256 (C).
[333]
Snyman (1985) 105 SALJ 240.
[334]
See
paragraph 7.37 below.
[336]
(1986) 25
CCC (3d) 322.
[337]
Ibid at
330 per Dickson CJC.
[338]
(2001) 153
CCC (3d) 465.
[339]
R v
Gibson (2001) 153 CCC (3d) 465, 467.
[340]
Ibid at
487.
[341]
[2001] 1 SCR
761.
[342]
R v
Parent [2001] 1 SCR 761, 767.
[343]
[1996] 1 SCR
37.
[344]
Ibid at
47.
[345]
Ibid.
[346]
R v
Daniels (1983) 7 CCC (3d) 542 (Northwest Territories Court of Appeal); R
v Conway (1985) 17 CCC (3d) 481 (Ontario Court of Appeal).
[347]
(1995) 101
CCC (3d) 167.
[348]
R v Hill (1986)
25 CCC (3d) 322.
[349]
R v Hill (1986)
25 CCC (3d) 322, 335.
[350]
Ibid,
citing Goddard LCJ in R v McCarthy [1954] 2 QB 105, 112.
[351]
DPP v
Camplin [1978] AC 705.
[352]
R v Hill (1986)
25 CCC (3d) 322, 351-352 per Wilson J (dissenting).
[353]
(1990) 171
CLR 312.
[354]
DPP v
Camplin [1978] AC 705.
[355]
Stingel v R (1990) 171 CLR 312, 326 per Mason
CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
[356]
R v Hill (1986)
25 CCC (3d) 322.
[357]
(1995) 183
CLR 58.
[358]
Ibid at
66.
[359]
Stingel v R (1990) 171 CLR 312.
[360]
Masciantonio v The Queen (1995) 183 CLR 58.
[361]
(1997) 191
CLR 334.
[362]
DPP v
Camplin [1978] AC 705.
[363]
R v
Thorpe (No 2) [1999] 2 VR 719; see also R v Curzon [2000] 1 VR 416.
[364]
Section
169(2)(a) of the New Zealand Crimes Act 1961; see paragraph 5.13 above.
[365]
[1962] NZLR
1069.
[366]
Ibid
at 1081.
[367]
Ibid.
[368]
Ibid.
[369]
R v
McGregor [1962] NZLR 1069, 1082 (emphasis added).
[370]
R v McGregor [1962] NZLR 1069.
[371]
[1992] 2
NZLR 550.
[372]
Ibid
at 558.
[373]
Ibid.
[374]
R v
McGregor [1962] NZLR 1069.
[375]
R v
McCarthy [1992] 2 NZLR 550.
[376]
Ibid at
558.
[377]
[1997] 1
NZLR 16.
[378]
DPP v
Camplin [1978] AC 705.
[379]
R v Smith
[2001] 1 AC 146.
[380]
[2000] 2
NZLR 385.
[381]
DPP v
Camplin [1978] AC 705.
[382]
R
v Rongonui [2000] 2 NZLR 385, paragraph 226.
[383]
DPP v
Camplin [1978] AC 705.
[384]
R
v Rongonui [2000] 2 NZLR 385, paragraphs 111-113.
[385]
R
v Rongonui [2000] 2 NZLR 385.
[387]
R v Smith
[2001] 1 AC 146.
[388]
See
paragraphs 3.32-3.37 above.
[389]
DPP v
Camplin [1978] AC 705.
[390]
[2001] 1
NZLR 318.
[391]
Ibid at
paragraph 14.
[392]
DPP v
Camplin [1978] AC 705.
[393]
R v Smith
[2001] 1 AC 146.
[394]
R v Makoare [2001] 1 NZLR 318.
[395]
Note,
however, the recent publication of the Criminal Law (Insanity) Bill 2002.
[396]
R v Smith
[2001] 1 AC 146.
[397]
See paragraphs
7.30-7.31 below.
[398]
(1977) 138
CLR 601. See discussion in Chapter 4.
[399]
People
(DPP) v MacEoin [1978] IR 27.
[400]
(1987) 33
CCC (3d) 31.
[401]
R v Dincer [1983] VR 460. In some cases, the accused’s membership
of a remote Aboriginal community has been considered relevant; see eg R
v Muddarubba (1951-1976) NTJ 317; R v Jimmy Balir Balir (1951-1976) NTJ
633; Jabarula v Poore
(1989) 42 A Crim R 479.
[402]
This
approach to the question of ethnicity initially attracted some academic
support: see Yeo “Power of Self-Control in
Provocation and Automatism” (1992) 14 Syd LR 3; Yeo later revised his views: “Sex, Ethnicity, Power of
Self-Control and Provocation Revisited” (1996) 18 Syd
LR 304. See Leader-Elliott “Sex, Race and Provocation: In Defence of Stingel” (1996) 20 Crim LJ 72,
supporting the prevailing view.
[403]
Stingel v R (1990) 171 CLR 312 per Mason
CJ, Brennan, Deane, Dawson, Toohey, Gaudron and McHugh JJ.
[404]
(1991) 2 NTR
1.
[405]
See Bronitt and McSherry Principles
of Criminal Law (LBC Information Services 2001) at 269; cf
Brown et al Criminal Laws (2nd ed Federation
Press 1996) at 675, pointing to the differently worded provocation provisions
in the Tasmanian Code and in the Queensland and Northern Territory Codes.
[406]
Masciantonio v The Queen (1995) 183 CLR 58 per
Brennan, Deane, Dawson and Gaudron JJ.
[407]
In Masciantonio v The Queen (1995) 183 CLR 58,
McHugh J departed from the consensus, stating that an accused’s ethnic and
cultural background should be attributed to the ordinary person; he was alone
in these views but nevertheless repeated them in Green v R (1997) 191
CLR 334.
[408]
(1991) 54 A Crim R 240.
[409]
Stingel v R (1990) 171 CLR 312.
[410]
R v Baraghith (1991) 54 A Crim R
240, 245.
[411]
Stingel v R (1990) 171 CLR 312.
[412]
Moffa v The Queen (1977) 138 CLR 601.
[413] See
paragraph 7.31 below.
[414]
See paragraphs
1.12-1.15 above.
[415]
R v Scott
(1909) 11 WALR 52, 54.
[416]
Eg, section
232(2) of the Canadian Criminal Code; see paragraph 5.03 above.
[417]
Eg, section
232(3) of the Canadian Criminal Code: see paragraph 5.03 above; section
169(5) of the New Zealand Crimes Act 1961: see paragraph 5.13 above.
[418]
R v Thibert [1996] 1 SCR 37.
[419]
Ibid at
44-45.
[420]
Roche v The
Queen [1988] WAR 278; Jabarula v Poore (1989) 68 NTR 26.
[421]
See paragraph 7.08
below.
[422]
Moffa v The Queen (1977) 138 CLR 601.
[423]
Ibid.
[424]
Gordon The
Criminal Law of Scotland (3rd ed W Green &
Sons 2001) Vol 2, at 348.
[425]
1991 SLT 25.
[426]
The trial judge in Cosgrove v HM Advocate 1991 SLT 25 cited Macdonald A
Practical Treatise on the Criminal Law in Scotland (5th ed
W Green & Son 1948) at 93. See also William Aird
(1683) Hume, i 248: throwing the contents of a
chamber pot in the accused’s face did not amount to provocation. For a
more recent discussion, see Drury v HM Advocate 2001 SCCR 583.
[427]
Rutherford v HM
Advocate 1998 SLT 740 per Rodger LJ of Sc.
[428]
Ibid.
[429]
McKay v HM
Advocate 1991 SCCR 364; Rutherford v HM Advocate 1998
SLT 740; Drury v HM Advocate 2001 SCCR 583.
[430]
HM Advocate v
McKean 1992 SCCR 402, discussed in Gordon The Criminal Law of Scotland
(3rd ed W Green & Sons 2001) Vol
2, at 346, footnote 99.
[431]
See paragraph 7.08
below.
[432]
Stephen Digest
of Criminal Law (3rd ed Macmillan & Co 1883)
at 162: “provocation on the part of the person committing the offence.”
[433]
Section 34; see
paragraph 5.11 above.
[434]
Section 23(2); see
paragraph 5.09 above.
[435]
[1937] 4 DLR 737
and [1938] 3 DLR 693.
[436]
[1964] VR 248.
[437]
R v Terry [1964]
VR 248 per Pape J.
[438]
[1983] 2 VR 470.
[439]
R v Kenney
[1983] 2 VR 470 per Brooking J.
[440]
R v Kenney
[1983] 2 VR 470, 472.
[441]
R v Manchuk (1938) 3 DLR 693 and (1937) 4 DLR 737.
[442]
R v Kenney
[1983] 2 VR 470, 473.
[443]
[1975] QB 691.
[444]
Court of Criminal Appeal 22 March 2002.
[445]
Central Criminal
Court (Finnegan J) October 2000 and April 2001.
[446]
Ibid,
reported in The Irish Times “Husband killed his wife in a ‘moment of
rage’” 11 October 2000 at 4.
[447]
See paragraph 7.33
below.
[448]
R v Fisher
(1837) 8 Car & P 182.
[449]
[1975] VR 449.
[450]
Ibid per
Menhennitt J.
[451]
Parker v The
Queen (1964) 111 CLR 665; R v Gardner (1989) 42 A Crim R 279; R v Chhay
(1994) 72 A Crim R 1.
[452]
New South Wales
Law Reform Commission Partial Defences to Murder: Provocation and
Infanticide (R 83 – 1997) at 55.
[453]
See paragraph 7.38
below.
[454]
R v Newman
[1948] VLR 61, 66.
[455]
But see R v
Johnson [1989] 2 All ER 839 where it was held that an accused was entitled
to rely on “self-induced” provocation pursuant to section 3 of the Homicide
Act 1957.
[456]
See paragraph 7.39
below.
[457]
See paragraph 4.32
above.
[458]
R v McCarthy
[1954] 2 All ER 262
[459]
R v Hill
(1986) 25 CCC (3d) 322, 335 per Dickson CJC; R v Rooney 1994 25
WCB (2d) 598; R v Taylor (1995) 28 WCB (2d) 183.
[460]
R v Webb
(1977) 16 SASR 309; R v Croft [1981] 1 NSWLR 126; R v O’Neill
[1982] VR 150.
[461]
R v Fryer
[1981] 1 NZLR 748; R v McCarthy [1992] 2 NZLR 550.
[462]
R v Morhall [1996] AC 90.
[463]
Stuart Canadian
Criminal Law (3rd ed Carswell
1995) at 495.
[464]
See paragraph 7.39
below.
[465]
See generally LaFave Criminal Law (3rd ed
West 2000) at 703-717; Robinson Criminal Law Defenses
(West 1984) at section 102(b).
[466]
DPP v Camplin [1978] AC 705.
[467]
Eg, Ferrin v People (1967) 164 Colo
130.
[468]
State v Elliott
(1979) 177 Conn 1.
[469]
People v Casassa (1980) 49 NY2d 668; State v Ortiz (1991)
217 Conn 648.
[470]
Section
210.3(1)(b) of the Model Penal Code, Comment 62. Robinson Criminal
Law Defenses (West 1984) at section 102(b) makes
the point that there is nothing in the wording of the Code that requires the
mistake to be reasonable.
[471]
See People v Casassa (1980) NY2d 668, 679-680: “By suggesting a
standard of evaluation which contains both subjective and objective elements,
we believe that the drafters of the code adequately achieved their dual goals
of broadening the ‘heat of passion’ doctrine to apply to a wider range of
circumstances while retaining some element of objectivity in the process. The
result of their draftsmanship is a statute which
offers the defendant a fair opportunity to seek mitigation without requiring
that the trier of fact find mitigation in each case
where an emotional disturbance is shown.…”
[472]
Section
210.3(1)(b) of the Model Penal Code, Comment 62.
[473]
Ibid.
[474]
In some cases the
courts have discussed the accused’s mental condition in the context of extreme
emotional disturbance: see People v Lyttle
(1976) 408 NYS2d 578; State v Elliott (1979) 177 Conn 1.
[475]
Eg, sections
53a-54 of the Conn Gen Stat Ann; title 11, section 641 of the Del
Code Ann; sections 707-702(2) of the Hawaii Penal Code; section
507.020(1)(a) of the Ky Rev Stat;
section 94-5-103 of the Rev Codes of Mont; section 125.25 of the NY
Penal Law; sections 12.1-16-02 of the ND Century Code; section
163.115 of the Ore Rev Stat; section 76-5-205 of the Utah Code Ann.
[476]
See paragraphs
7.22-7.27 and 7.29 below.
[477]
See paragraph 7.37
below.
[478]
See paragraph 7.31
below.
[479]
However, this
prohibition does not apply in the “adultery” cases. See also the law relating
to South Australia and Victoria discussed at paragraph 5.51 above.
[480]
See paragraph 7.08
below.
[481]
See paragraph 7.33
below.
[482]
See paragraph 7.39
below.
[483]
See paragraphs
7.22-7.27 and 7.29 below.
[484]
See paragraphs 3.04-3.14 above.
[485]
(1869) 11 Cox CC 336.
[487]
R
v Smith [2001] 1 AC 146.
[488]
See R v Makorare [2001] 1 NZLR 318, rejecting
the application of R v Smith [2001] 1 AC 146 in New Zealand; see
paragraph 5.38 above.
[489]
(1977) 138 CLR 301.
[490]
[1978] IR 27.
[491]
People
(DPP) v MacEoin [1978] IR 27, 34.
[492]
R
v Smith [2001] 1 AC 146.
[493]
[2001] 1 IR
146.
[494]
See
paragraph 6.01 above.
[495]
DPP v Camplin [1978] AC 705, 716.
[496]
DPP v Camplin [1978] AC 705.
[497]
Ibid.
[498]
See
paragraph 4.06 above and paragraph 6.06 below.
[499]
See R
v Rongonui [2000] 2 NZLR 385, paragraph 111 per Elias
CJ (dissenting): “It is highly artificial to ask the jury to take the
characteristics of the accused into account for the purposes of assessing the
gravity of the provocation but to disregard them when considering whether the
ordinary man would, faced with provocation as grave, have lost his
self-control. The distinction is oversubtle and is
likely to be so regarded by the jury.”
[500]
Australian Model Criminal Code Officers Committee Discussion Paper on Fatal
Offences Against the Person (1998) at 79.
[501]
This
argument ultimately questions the retention of a defence of provocation; see
paragraph 6.37 below.
[502]
Australian
Model Criminal Code Officers Committee Discussion Paper on Fatal Offences
Against the Person (1998) at 81. See R v Morhall
[1996] AC 90, 97-98 per Lord Goff: “[T]he ‘reasonable person test’ is
concerned not with ratiocination, nor with the reasonable man whom we know so
well in the law of negligence … nor with reasonable conduct generally. The
function of the test is only to introduce, as a matter of policy, a standard of
self-control which has to be complied with …”; see also Stingel
v R (1990) 171 CLR 312, 327.
[503]
Macklem and Gardner “Provocation and Pluralism” (2001) 64
MLR 815; see also Detmold “Provocation to Murder: Sovereignty and Multiculture” (1997) 19 Syd LR 5.
[504]
Allen
“Provocation’s Reasonable Man: A Plea for Self-Control” (2000) 64 J Crim Law 216, 228-229.
[505]
Moffa v The Queen (1977) 138 CLR 601.
[506]
People
(DPP) v MacEoin [1978] IR 27.
[507]
Ibid.
[508]
See
paragraphs 4.09-4.11 above.
[509]
See
paragraphs 1.09-1.10 above.
[510]
See McAuley and McCutcheon Criminal Liability (Round
Hall/Sweet & Maxwell 2000) at 875-877.
[511]
People
(DPP) v MacEoin [1978] IR 27.
[512]
Ibid at
32.
[513]
The New South Wales Law Reform Commission has taken a different view in its Discussion
Paper Provocation, Diminished Responsibility and Infanticide (DP 31 – 1993)
at paragraph 3.63: “This argument needs only to be stated to be rejected. If
the good-tempered person does not lose self-control then he or she will not
kill and there will be no occasion for a murder trial at all. If she or he does
kill but still does not lose self-control then provocation is not applicable
because the killing was done in cold blood. Finally if she or he kills and does
lose self-control then there is no reason why provocation cannot be raised, the
defendant will pass both the subjective (although it may be a little more
difficult to prove) and the objective tests.” However, these remarks were made
in the context of a law that adopts an objective approach that, unlike the
approach endorsed in MacEoin, is designed to
prevent a person from relying on his or her “exceptional pugnacity or
excitability”.
[514]
McAuley and McCutcheon Criminal Liability (Round
Hall/Sweet & Maxwell 2000) at 877.
[515]
Ibid.
[516]
People
(DPP) v MacEoin [1978] IR 27.
[517]
See Reilly
“Loss of Self-Control in Provocation” (1997) 21 Crim
LJ 320.
[518]
See
paragraphs 7.30-7.31 below.
[519]
Central
Criminal Court Lavan J 15-18 March and 10 June 1993, reported in The Irish
Times 16-19 March and 11 June 1993. The jury in this case were
directed by the trial judge to return a verdict of manslaughter and to acquit
the accused of the murder of her estranged husband whom she had killed by
striking him repeatedly with a hammer. There was a history of abuse by
the husband against the accused dating back almost 10 years. Five years
before the killing the accused had obtained a barring order against her
husband, but in the previous nine months had allowed him back into her home as
he had nowhere else to live. During this period the husband had resumed
the verbal abuse, had struck the accused and had refused to leave the
home. On the night of the killing the husband arrived home drunk, had
verbally abused the accused and had taunted her that she would never get him
out of the house. The accused was also under the influence of alcohol and
drugs at the time of the killing. She claimed to have lost control.
Upon conviction, she received a suspended sentence of imprisonment.
[520]
Central
Criminal Court McGuinness J 8-22 March 1999 and 14
November 2000, reported in The Irish Times 9-11, 16-17, 19-20, 23 March
and 10 July 1999 and 14 November 2000. The accused was acquitted of the
murder of her abusive partner, whom she had stabbed six times with a kitchen
knife, and convicted of manslaughter. Prior to commencing her
“pathological” relationship with the deceased, the accused had suffered from
physical and sexual abuse throughout her childhood and adult years; she
displayed features of an extreme form of post-traumatic stress disorder.
Two days before the killing the accused had learnt that her sister (the
estranged wife of the deceased) had committed suicide two months earlier. On
the night of the killing, both the accused and the deceased were intoxicated
with drugs and/or alcohol; the deceased made abusive remarks about the
accused’s dead sister and triggered memories of her own sexual abuse which, the
accused claimed, caused her to lose control. Upon conviction, the accused
received a suspended sentence of imprisonment.
[521]
A similar
“contextual” approach has been taken in Australia: see R v R (1981) 28
SASR 321; R v Hill (1981) 3 A Crim R 397. It
would also appear that a specific triggering incident is not essential: R v Chhay (1994) 72 A Crim R 1.
See also Wasik “Cumulative Provocation and Domestic
Homicide” [1982] Crim LR 29.
[522]
See Donnelly
“Battered Women who Kill and the Criminal Law Defences” (1993) 3 ICLJ 161; Horder “Sex, Violence and Sentencing in Domestic
Provocation Cases” [1989] Crim LR 546; O’Donovan
“Defence for Battered Women who Kill” (1991) J Law & Soc 219; Wells
“Battered Woman Syndrome and Defences to Homicide” (1994) 14 LS 266; Baker
“Provocation as a Defence for Abused Women Who Kill” (1998) 11 Can JL & Juris 193.
[523]
The law in
New South Wales was amended to deal with the difficulties presented by the
immediacy requirement: section 23(2) of the Crimes Act 1900 stipulates
that the defence is available “whether that conduct of the deceased occurred
immediately before the act or omission causing death or at any previous time.”
In the Australian Capital Territory, section 13(3)(b) of the Crimes Act 1900
has also diluted the immediacy requirement: “[T]here is no rule of law that
provocation is negatived if … the act or omission
causing death did not occur suddenly”.
[524]
R v Ahluwalia [1992] 4 All ER 889; see Nicolson and Sanghvi “Battered Women and Provocation: The Implications
of R v Ahluwalia” [1993] Crim
LR 728.
[525]
[1992] 1 All
ER 306.
[527]
See
paragraph 6.16 above.
[528]
R v
Thornton (No 2) [1996] 2 All ER 1023.
[529]
In other
words, although the Court purported to uphold the requirement of a sudden loss
of control, it relaxed the standard to such an extent as to render it
effectively meaningless.
[530]
The Law
Commission of New Zealand declined to recommend the creation of a special
partial defence for battered defendants. Indeed, the Commission took the
view that the partial defence of provocation should be abolished altogether and
that matters of provocation should be taken into account in the exercise of a
proposed sentencing discretion for murder: see Some Criminal Defences with
Particular Reference to Battered Defendants (R 73 – 2001) at paragraphs
84-86 and 114-120. It is also conceivable that the accused could avail of
a defence of self-defence: see, inter alia, R v Lavallee
(1990) 55 CCC (3d) 97 discussed in the Law Reform Commission’s upcoming Consultation
Paper on Legitimate Defence in Cases of Homicide.
[531]
In other
words, this option would avoid the need to label defendants in such cases as
suffering a mental disorder or condition.
[532]
See
paragraphs 7.34 and 7.40 below.
[533]
People
(DPP) v MacEoin [1978] IR 27.
[534]
See
paragraphs 5.31-5.36 above.
[535]
R v
McGregor [1962] NZLR 1069, 1082.
[536]
R v
McCarthy [1992] 2 NZLR 550, 558.
[537]
See
paragraph 3.15 above.
[538]
See Mackay
“Pleading Provocation and Diminished Responsibility Together” [1988] Crim LR 411; Mackay Mental Condition Defences in the
Criminal Law (Oxford University Press 1995) at 198-202; Horder
“Between Provocation and Diminished Responsibility” (1999) 2 King’s College LJ
143.
[539]
R v Ahluwalia [1992] 4 All ER 889; R v Dryden
[1995] 4 All ER 987; R v Humphreys [1995] 4 All ER 1008; R v Thornton
(No 2) [1996] 2 All ER 1023.
[540]
R v Smith
[2001] 1 AC 146.
[541]
The Privy
Council has taken a different view, confining evidence of mental infirmity to
the question of gravity with the standard of self-control being that of the
“reasonable man”: Luc Thiet Than v The Queen [1997] AC 131; see paragraph 3.30 above. The
position in New Zealand is similar: R v Campbell [1997] 1 NZLR 16; R
v Rongonui [2000] 2 NZLR 385; see paragraphs
5.34-5.37 above.
[542]
See footnote
82 in Chapter 3 above.
[543]
Ashworth Principles
of Criminal Law (3rd ed Oxford University Press
1999) at 281-282, 290.
[544]
Williams Textbook
of Criminal Law (2nd ed Stevens and Sons 1983) at
544.
[545]
Horder “Between Provocation and Diminished Responsibility”
(1999) 2 King’s College LJ 143, 147.
[546]
See
paragraphs 7.04 and 7.35 below.
[547]
For
discussion of the issues raised in this section see McAuley
“Anticipating the Past: The Defence of Provocation in Irish Law” (1987) 50 MLR
133.
[548]
See
paragraphs 5.48-5.49 above as to the Criminal Codes of Canada, the
Australian jurisdictions of the Northern Territory, Queensland and Western
Australia, and the New Zealand Crimes Act 1961.
[549]
[1973] NI
96.
[550]
Ibid at
108.
[551]
See
paragraphs 5.56-5.61 above.
[552]
See
paragraph 7.08 below.
[553]
See
paragraph 7.33 below.
[554]
See
paragraph 4.32 above.
[555]
See R v Morhall [1996] AC 90: however, in that case it was held
that the accused’s addiction, as opposed to his intoxicated state, was a
characteristic that could be attributed to the “reasonable man”.
[556]
The
Commission has recommended that self-induced intoxication should not be allowed
as a criminal defence: see Consultation Paper on Intoxication as a Defence
to a Criminal Offence (1995) and Report on Intoxication (LRC 51 –
1995). Neither the Consultation Paper nor the Report considered the question of
intoxication in relation to the defence of provocation.
[557]
For
discussion, see McAuley and McCutcheon Criminal
Liability (Round Hall/Sweet & Maxwell 2000) at Chapter 13.5.
[558]
See
paragraphs 6.15-6.20 above.
[559]
See
paragraph 7.39 below.
[560]
See Horder Provocation and Responsibility (Clarendon
Press 1992) at 144-145, discussing the issue in relation to DPP v Camplin [1978] AC 705. The observations have
greater force where a subjective test is employed; see discussion at paragraphs
6.10-6.12 above.
[561]
People
(DPP) v MacEoin [1978] IR 27.
[562]
Eg,
New Zealand Criminal Law Reform Committee Report on Culpable Homicide
(1976); New Zealand Crimes Consultative Committee Crimes Bill 1989: Report
of the Crimes Consultative Committee (1991); Law Commission of New Zealand Some
Criminal Defences with Particular Reference to Battered Defendants (R 73 –
2001) at paragraphs 114-120; Australian Model Criminal Code Officers Committee Discussion
Paper on Fatal Offences Against the Person (1998). The Law Reform
Commission of Canada abandoned the defence in its proposed revision of the
Canadian Criminal Code: Canadian Law Reform Commission Recodifying Criminal Law (R 31 – 1987).
[563]
Horder Provocation and Responsibility (Clarendon
Press 1992) at chapter 9; Wells “Provocation: The Case for Abolition” in
Ashworth and Mitchell (eds) Rethinking English
Homicide Law (Oxford University Press 2000) at 85; Goode “The Abolition of
Provocation” in Yeo (ed) Partial
Excuses to Murder (Federation Press 1992) at 37.
[564]
Australian Model Criminal Code Officers Committee Discussion Paper on Fatal
Offences Against the Person (1998) at 87.
[565]
Ibid
at 87.
[566]
Australian
Model Criminal Code Officers Committee Discussion Paper on Fatal Offences
Against the Person (1998).
[567]
The facts of
R v Dincer [1983] VR 460.
[568]
The facts of Green v R (1997) 191 CLR 334.
[569]
Australian
Model Criminal Code Officers Committee Discussion Paper on Fatal Offences
Against the Person (1998) at 89.
[570]
Ibid
at 89.
[571]
Ibid.
[572]
Law Reform
Commission Report on Sentencing (LRC 53 – 1996) at 68, Recommendation
12.
[573]
See, eg,
Horder Provocation and Responsibility
(Clarendon Press 1992) at 186-191.
[574]
Law Reform
Commission of Victoria Report on Homicide (R 40 – 1991) at paragraphs
164-168.
[575]
Donnelly, Cumines & Wilczynski
“Sentenced Homicides in New South Wales 1990-1993: A Legal and Sociological
Study” (Judicial Commission of New South Wales, Monograph Series No 10, 1995),
summarised in New South Wales Law Reform Commission Report on Partial
Defences to Murder: Provocation and Infanticide (R 83 – 1997) at 68-69.
[576]
Horder Provocation and Responsibility (Clarendon
Press 1992) at 192 (emphasis in original).
[577]
Ibid
at 195.
[578]
Wells
“Provocation: The Case for Abolition” in Ashworth and Mitchell (eds) Rethinking English Homicide Law (Oxford
University Press 2000) at 86.
[579]
See Ashworth
Principles of Criminal Law (3rd ed Oxford
University Press 1999) at 284; Criminal Law Revision Committee of England and
Wales Fourteenth Report: Offences against the Person (Cmnd 7844 – 1980) at paragraph 76.
[580]
See, eg,
Sullivan “Anger and Excuse: Reassessing Provocation” (1993) 13 OJLS 421.
[581]
Eg, Final
Report of the New South Wales Attorney-General’s Department Working Party on
the Review of the Homosexual Advance Defence (Government Publication 1999)
has recommended that amending legislation be introduced to exclude reliance on
non-violent homosexual advances as a basis for the defence. Available at
http://www.agd.nsw.gov.au/clrd1.nsf/pages/had.
[582]
See
paragraphs 7.05-7.06 and 7.28 below.
[583]
See paragraphs
7.30-7.31 below.
[584]
See paragraphs
7.34 and 7.40 below.
[585]
See paragraphs
7.04 and 7.35 below.
[586]
See paragraph 7.08
below.
[587]
See paragraph 7.33
below.
[588]
See paragraph 7.39
below.
[589]
See paragraphs
7.05-7.06 and 7.28 below.
[590]
[2001] 1 IR 146, 159.
[591]
Law Reform Commission Report on Sentencing (LRC 53 – 1996) at 68,
Recommendation 12.
[592]
Law Reform Commission Seminar Paper on Homicide: The Mental Element in
Murder (LRC SP1 – 2001) at 5-8.
[593]
(1706) Kel 119. See discussion at paragraph 1.19
above.
[594]
R
v Browne [1973] NI 96.
[595]
Ibid
at 108 (emphasis added).
[596]
See Macklem and Gardner “Provocation and Pluralism”
(2001) 64 MLR 815, 819-820, arguing that excuse involves moral considerations;
see also Gardner “The Gist of Excuses” (1998) 1 Buffalo Crim
LR 585, 592 to the effect that a self-respecting person would prefer to be
judged “by the proper standards of character applicable to all”.
[597]
See also paragraphs 6.09-6.13 above.
[598]
DPP
v Camplin [1978] AC 705; see paragraphs 5.26-5.39
above.
[599]
Criminal Law
Revision Committee of England and Wales Fourteenth Report: Offences
against the Person (Cmnd 7844 – 1980) at
paragraph 81.
[600]
Ibid at
paragraph 83.
[601]
Law Commission of England and Wales Report on Criminal Law: A Criminal Code
for England and Wales (No 177 1989) at 68.
[602]
Law
Commission of England and Wales Report on Criminal Law: A Criminal Code for
England and Wales (No 177 1989) at 251.
[603]
New South
Wales Law Reform Commission Report on Partial Defences to Murder:
Provocation and Infanticide (R 83 – 1997) at 52.
[604]
Ibid
at 51.
[605]
See footnote
40 in Chapter 6 above.
[606]
Criminal Law
Revision Committee of England and Wales Fourteenth Report: Offences
against the Person (Cmnd 7844 – 1980) at
paragraph 83.
[607]
See
paragraphs 6.21-6.25 above.
[608]
See Horder “Between Provocation and Diminished Responsibility”
(1999) 2 King’s College LJ 143, 147.
[609]
See
paragraphs 5.70-5.77 above.
[610]
Law Reform
Commission Seminar Paper on Homicide: The Mental Element in Murder (LRC
SP1 – 2001) at 5-8.
[611]
Law Reform
Commission Seminar Paper on Homicide: The Mental Element in Murder (LRC
SP1 – 2001) at 5-8.
[612]
[1954] 2 All
ER 801.
[613]
Bedder v DPP [1954] 2 All ER 801; see
paragraph 3.08-3.11 above. The accused was an impotent eighteen year old
who was ridiculed and kicked when he failed to have intercourse.
[614]
See
paragraph 5.60 above.
[615]
Section
169(6) of the New Zealand Crimes Act 1961 states: “This section shall
apply in any case where the provocation was given by the person killed, and
also in any case where the offender, under provocation given by one person, by
accident or mistake killed another person.”
[616]
See
paragraphs 5.09 and 5.10 above.
[617]
It should be
noted that provocation can take the form of either conduct or words; hence,
“hearsay provocation” is not excluded from the ambit of the provision.
[618]
Bedder v DPP [1954] 2 All ER 801.
[619]
See
discussion at paragraph 5.61 above.