Provocation Flashcards
define Provocation
Provocation may be defined as an act of words, or a combination of both, which cause a person to lose self-control.
Provocation is famously described by Charlton as a ‘concession to human frailty”. It was defined by Devlin J in R v Duffy as
“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 loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not the master of his mind”
what is provocation a defence for?
Provocation is a defence to murder only. Even to murder, however, it is only a partial defence in that is reduces murder to manslaughter but does not result in an acquittal.
what was established in the case of DPP v Davis
the Accused was not allowed to blame provocation where it was established he was angry long before the third party’s actions and had already decided to embark on an assault. So to this extent, causation is relevant in establishing the defence of
provocation.
Provocation as a defence to Pre-meditated murder
Provocation cannot be invoked as a defence to a pre-meditated revenge killing, for example, where there is a delay in the provocative
act during which the Accused decides on a course of vengeance. It will only really cover “heat of the moment” situations.
The objective standard- reasonable man test
The Reasonable Man test was
imported to prevent unusually excitable or aggressive individuals invoking the defence of provocation for excessive or disproportionate retaliations. The Reasonable Man, therefore, was said to represent an ordinary person of ordinary self-control.
what are the facts of becker v dpp - reasonable man test
Bedder v DPP is an example of the operation of this objective standard. The provocation in that case concerned taunts made by a prostitute to a sexually impotent 18-year-old over his inability to have sex with her. He flew into a blind rage and killed her, pleading provocation.
The question arose as to whether the Accused should be judged subjectively, as against an impotent eighteen-year-old, or objectively, as against an average man with no sexual dysfunction.
The House of Lords held that the latter standard must apply. Hanly criticizes this vehemently, calling the standard “absurd” and commenting that it is difficult to see the logic in this approach given that people’s emotions and temperaments vary considerably.
what approach does the Irish courts take when it comes to provocation?
The Irish courts have taken an entirely subjective approach.
The locus classicus of
the Irish position is represented in DPP v MacEoin.
The Accused had been drinking heavily with friends. A fight broke out and he ended up killing one of them. On appeal against his murder conviction, the Court of Criminal Appeal set out a two-prong test:
(1) was the Accused actually provoked to such an extent as to cause him to lost control?
(presumably this reflects the difference between mere annoyance and provocation); and
(2) was his/her reaction proportionate in the circumstances?
what was stated in the case of DPP v Curran
O’Donnell J stated that the emphasis was not whether the jury sympathised with a loss of self-control or whether that was excusable. Instead, the issue was whether a total loss of self-control occurred.
Self-induced Provocation
The Accused will not be protected by the defence of provocation if the provocation arose out of something he/ she did.
Given the subjective approach in Ireland, it seems likely that any contribution by the Accused to the provocation would be a matter left to the jury in deciding whether he/ she was reasonable in reacting the way they did.
what are the facts of Edwards v The Queen?
The Accused had been blackmailing the victim who became aggressive one day causing the Accused to kill him. The court held that the Accused could not fall back on provocation because it was the blackmail which had induced the supposed provocation - the victim’s aggression.
Cumulative Provocation
There is also a special form of cumulative provocation of domestic violence recognized in respect of victims of domestic violence. It is known as “battered wives syndrome” and makes allowance for sudden outburst after long periods of domestic abuse. It can be seen as a sort of exception to the rule that the provocation must be close in time to the impugned act.
what are the facts of R v Ahluwalia - Cumulative Provocation
In an unreported case in 1992, the Central Criminal Court seemed to have accepted a plea of cumulative provocation from a woman who had been physically and verbally abused by her husband over a long period of time until she eventually ‘snapped” and beat him to death with a hammer. She was given a six year suspended sentence
