EMBARGO UNTIL: 2 pm WEDNESDAY 29 OCTOBER 2003
Law Reform Commission Consultation Paper on Homicide: The Plea of Provocation
This Consultation Paper is the third in a proposed series of papers which is intended to provide a comprehensive review of the law on homicide in this jurisdiction with the aim of eventual codification.
The plea of provocation operates as a partial defence to murder reducing the offence to one of manslaughter. This Paper endeavours to deal with the unsatisfactory state of this important branch of the law of homicide which, in the last 25 years, has been reduced to the purely factual (or subjective) question of whether the accused lost control. This approach, heralded by the 1978 Court of Criminal Appeal decision in People (DPP) v MacEoin, represents a significant departure from the common law which had focused on standards of conduct that could fairly be expected of accused persons in response to untoward provocative behaviour. Given the extreme subjective nature of the current test, it is virtually impossible for the prosecution to rebut evidence of provocation once the plea has been raised.
As shown by the Commission’s comparative law analysis of jurisdictions including England and Wales, Canada, Australia, New Zealand, South Africa and the United States of America, Ireland is alone in the common law world in having saddled itself with this dispensation (albeit that recent developments in England and Wales have moved their case-law towards the purely subjective approach).
On the basis of a comprehensive historical and comparative review of the law of provocation, the Commission rejects the arguments in favour of abolishing the plea and adopting in its stead a general excuse-based defence of Extreme Emotional or Mental Disturbance. Rather, the Commission recommends wide-ranging legislative reform designed to return the plea to its traditional focus on the measure of restraint that can properly be expected of the ordinary person faced with provocation, thus shifting the emphasis away from the current excuse-inspired concern with the accused’s loss of control.
The Commission acknowledges, however, that the adoption of a plea based on objective standards of conduct should be tempered by attention to the accused’s personal characteristics. Whilst accepting that the accused should be judged by ordinary community standards of self-control and proportionality, the Commission believes that the courts should be able to take account of a defendant’s personal characteristics insofar as they affect the gravity of provocation. For example, an accused’s history of being sexually abused might be relevant to the assessment of gravity if the provocation in question was a sexual advance by the deceased. However, with the possible exception of age, it is recommended that personal characteristics should not feature in relation to the question of self-control; hence, the excessive irritability or sensitivity of the accused would not be relevant when assessing the power of self-control of the ordinary person. Nor should an accused’s state of intoxication or mental disorder be taken into account under this heading. The Commission emphasises that issues of mental disorder properly fall outside the scope of the plea and welcomes the proposed introduction of the defence of diminished responsibility as contained in the Criminal Law (Insanity) Bill 2002.
The Commission also recommends a more flexible approach to the traditional common law requirement of immediacy – that a killing must immediately follow the provocation. It is accepted that the current rule may present difficulties for an accused whose response to provocative conduct was delayed, such as sometimes occurs in a violent domestic relationship. Accordingly, the Commission recommends the dilution of the immediacy requirement to accommodate cases of this kind.
The Commission’s recommendations are encapsulated in a draft provision which would bring Irish law broadly into line with that applied in Canada, Australia and New Zealand.
The Consultation Paper is intended to form the basis for discussion and, accordingly, the Commission’s recommendations are provisional only. The Commission will make its Report on this topic following further consideration of the issues and consultation with interested parties. Those who wish to make submissions are requested to do so in writing to the Commission by January 2004.
  IR 27 (Court of Criminal Appeal).