Provocation Flashcards
What are the origins of the defence of provocation?
The sudden, temporary, and total loss of self control due to provocation is a patial defence to murder.
Traditionally understood to have an objective element, what would the effect of the conduct be on a reasonable person.
DPP v MacEoin enunciated a two limbed, subjective test
1) having regard to his tempermant, character and cricumstances had the accused lost self control at the time of the killing?
2) was the force unreasonable and excessive?
How was the two limb test for provocation refined?
DPP v Kelly outlined the defence. Total, sudden, and temporary loss of self control which made the accused ‘not master of his mind’. The reaction must come suddenly and ‘before there has been time for passion to cool. The reaction must not be tinged by calculation.’
DPP v Delaney confirmed the second limb of MacEoin had been dropped, recognised the more unreasonable the force the more likely the accused had lost control.
What case introduced the mixed test for provocation?
DPP v McNamara SC review, now authority for provocation in ireland.
1) to consider provocation first s.4 1964 must be satisfied.
2) Provocation must be sudden and loss of control so overwhelming that the accused cannot held intending mr or committing ar.
3) Cannot be because of intoxication.
4) Must be a genuinely serious provocation outside the bounds of socially acceptable interactions, not a mere insult. No notions of honour, romantic conduct, hurt male pride, or gang vengeance.
5) Not entirely subjective, will not apply in situations where ordinary people of the same characteristics would have been able to exercise self restraint in the same background circumstances.
