Provication?

Question 1

Provocation Definition?

Answer 1

Act or words which cause person to lose self control.
Does not have to emanate from victim

Question 2

Provocation Defence examples?

Answer 2

R v Gardiner 1995 (stabbed violent husband)
🔑 sentence reduced to probation due to depressive illness caused by violence
R v Thornton 1992 (sharpened knife)
🔑 Taunted her, conviction upheld as no sudden loss SC

Question 3

Provocation: Cooling off?

Answer 3

Mancini v DPP: reaction must be immediate for defense to succeed
However R v Pearson (DV) shows leniency
🔑 recognises cumulative provocation

Question 4

Test for Provocation England?

Answer 4

R v Acott 1966 (unidentified words)
🔑 must be clear evidence of what was said / done
R v Duffy 1949
🔑 originally objective
R v Bedder 1954 (impotent)
🔑 judged by ordinary standards, decision criticized leading to Homicide Act 1957
S3 Homicide Act:
🔑 Jury must determine if provocation sufficient to make RM act as accused

Question 5

Reformulation of Provocation Law England?

Answer 5

R v Camplin (buggered)
🔑 RM with characteristic of accused
R v Newall 1980 (ex girlfriend)
🔑 Camplin challenged, RM not considered alcoholic for provocation test, alcoholism not related to provocation

Question 6

McEoin Test Pt one?

Answer 6

Was accused provoked that he lost self control at time? Jury to have regard to temperament/ character/ circumstances
Dpp v Noonan 1998
🔑 Jury can consider RM to assess credibility of A, distinct from applying concept of RM to determine case
Dpp v Kelly 2000
🔑 purely subjective approach, jury should use common sense

Question 7

McEoin Test Critical Analyis?

Answer 7

McCauley (white supremecist)
🔑while subjectively provoked, law may not extend compassion due to morals
🔑 Irish law did not anticipate cases of this nature, policy considerations might restrict defence
Dpp v Davis (Hardiman)
🔑 Restrictions to prevent moral outrage, would require further consideration

Question 8

McEoin Test Pt 2?

Answer 8

If proof beyond RD force used excessive defence fails
DPP v Mullane (assessment revolves around credibility of testimony)
🔑 does reaction align with temper/ character/ circumstances, should evaluate credibility of A & witnesses

Question 9

Provocation Reform?

Answer 9

LRC recommended:
🔑 Retain as partial defence
🔑 Shift from subjective to objective test
🔑 Remove immediate response requirement
🔑 Exclude intoxication when assessing RM
🔑 Don’t strictly exclude self induced provocation

Question 10

Provocation: McNamara?

Answer 10

🔑 Events not proximate enough for provocation, COA upheld
🔑 SC explored subjective nature, emphazing limits
🔑 SC concluded provocation did not apply, hilighting lack of immediacy & disproportionately in actions

Question 11

Provocation: Alamasi Case?

Answer 11

🔑 SC clarified TJ’s ruling was assessment of evidence weight, not judicial discretion
🔑 referred to McNamara case, emphasised need for objective element
🔑 Court found “air of reality” ordering retrial, resulted in hung jury