Provocation

a.moloney2
Flashcards by a.moloney2, updated more than 1 year ago
a.moloney2
Created by a.moloney2 about 7 years ago
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Flashcards on Provocation, created by a.moloney2 on 04/04/2014.

Resource summary

Question Answer
Provocation An Act of words, or combination of both, which cause a person to loose self control. Defence to murder only. Only ever a partial defence that can reduce murder to manslaughter, but never results in an acquittal
Justice Charleton “concession to human frailty”
R v Duffy, Justice Devlin Some act, or series of acts, done by the dead man to the accused [which would cause in any reasonable person] and actually does cause in the accused a sudden loss of self control…”
Definition of provocation in Irish Law - we have abandoned the "reasonable person" consideration for an entirely subjective approach -possibility of words alone can amount to provocation -provocation does not mean that the mens rea for murder is not present, but the third party's actions are considered to have contributed to that mens rea.
Loss of Self Control cause by Provocation The provocative act must cause the accused to commit the murder
DPP v Davis The accused was not allowed to blame provocation where it was established that he was angry long before the third party's actions and had already decided to embark on an assault.
Establishing Provocation 1. Causation between the provocative act and the murder 2. Actual loss of self control. Cannot be invoked as a defence to pre-meditated murder "heat of the moment situations" (Mancini v DPP) 3. The loss of control must be sudden and temporary
The Objective Requirement - Reasonable man - Ordinary person with ordinary self control - Traditionally focused on the act done rather that the actions of the accused -The law evolved and people were expected to exercise more self control -The focus shifted onto the reaction of the accused, rather than the taunt rendered by the third party -The Reasonable man test was imported to prevent unusually excitable/aggressive people from invoking the defence
Bedder v DPP The operation of the objective standard. -taunts made by a prostitute to a sexually impotent 18 year old over his inability to have sex with her -flew into a blind rage and killed her -Q. Should he be judged subjectively, as against an impotent 18 year old, or as against a reasonable man. -The House of Lords held that the reasonable man test should apply -Haly calls this standard "absurd" -No longer the approach favoured in England or Ireland
Position in England:- UK Homicide Act 1957 2 prong test. Requires the jury to consider:- 1. whether the accused was actually provoked 2. Whether the reasonable man would have reacted similarly
R v Camplin -The accused was a 15 year old boy who was anally raped and then taunted by his rapist - The Accused lost seld confrim and hit him over the head with a frying pan killing him -Lord Diplock allowed the reasonable man test to be tailored to fir the individual attributes of the accused
Lord Diplock in R v Camplin "It would now be unreal to tell a jury that the notional "reasonable man" is someone without the characteristics of the accused. The question to be considered by the jury was whether the accused, placed as he was, and having regard to the all the things that they found were said...only acted as a reasonable young man might have acted" Note: only attributes in relation to taunts were to be taken into account
R v Newall -Accused was an alcholic which was held to be a matter ancillary to the provocation -the reasonable man by which he would be judged was not an alcoholic -provocative comments made related to the mans ex-girlfriend -had they related to his drinking, the decision might have been different
AG for Jersey v Holley -Privy Council held that the accused alcoholism was not relevant where he had murdered his wife with an axe, even though he only became violent when drunk Note: dissenting judgements of Bingham and Hoffman who argue that a mental abnormality such as alcoholism should always be considered
Irish Position Entirely subjective approach
DPP v MacEoin -The accused had been drinking heavily with friends -Fight broke out and he ended up killing one of them -the Court of Criminal Appeal set out a 2 prong test:- 1. Was the accused actually provoked to such an extent that he lost control? 2. Was his/her reaction proportionate in the circumstances?
DPP v Noonan -Only attempt to import some objectivity into the Irish Courts. -Geoeghegan held that while the test is subjective, the jury may consider how the reasonable man may react in assessing credibility.
DPP v Kelly The Jury were instructed that in assessing whether the accused had lost control they must use their common sense and experience (objective suggestion)
Subjective Approach The subjective approach has been endorsed by the Court of Criminal Appeal:- "...not whether a normal or reasonable man would have been so provoked by the matters complained of as to totally lose his self control but whether this particular accused with his peculiar history and personality was so provoked"
The Provocative Act -must be evidence of what was said so unless there is independent witnesses the accused will have to give evidence -the provocation must come from the deceased. The only exception is where the accused aims to attack the provoker but misses and hits a third party. R v Gross "provocation can transfer"
Self Induced Provocation The accused will not be protected by the defence where the provocation was self induced Edwards v the Queen (blackmail) Subjective approach in Ireland - likely that jury would left to decide on self induced provocation
The People v Kelly "The reaction...must be genuine in the sense that the accused did not deliberately set up the situation which he now invokes as provocation"
Cumulative Provocation Exception to the rule that provocation must be close in time to the impugned act. Special case of provocation for victims of domestic abuse "battered wives syndrome" Makes allowances for outbursts after long periods of domestic abuse
R v Ahluwalia The Court of Appeal stressed that usually a lapse of time would show that another motive was behind the attack However, this was a matter to be decided on evidence Court recognised a different category pertaining to victims of domestic abuse "Sapling Tree Syndrome"
Reform Proposals LRC "Homicide: the Plea of Provocation" 2003 -the defence in Ireland should be re-focused on the conduct of the deceased -express statutory provision be made for cases of domestic abuse
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