Anticipating The Past: The Defence Of Provocation In Irish Law
| Published date | 01 March 1987 |
| Date | 01 March 1987 |
| Author | Finbarr McAuley |
| DOI | http://doi.org/10.1111/j.1468-2230.1987.tb02569.x |
THE
MODERN
LAW
REVIEW
Volume
50
March
1987
No.
2
ANTICIPATING THE PAST: THE DEFENCE OF
PROVOCATION IN IRISH
LAW
ONE
of
the fundamental requirements
of
the criminal law is that
individuals are at all times expected to control their behaviour.
This requirement is also evident in ordinary human intercourse,
and its importance in the criminal law simply reflects the innate
connection between the principles
of
criminal liability and the
moral infrastructure
of
everyday life.
Loss
of control is therefore
no defence to a criminal charge, although there are three recognised
exceptions to this general rule.
The first is where the individual’s ability to control his behaviour
has been neutralised by factors not
of
his making, and whose
effects he could not have foreseen. Typical cases covered by this
exception are those
of
a defendant who kills while unconscious as a
result
of
a blow or in the course
of
an attack of
St.
Vitus’s dance,
or who injures another while recoiling from an attack by a dog. In
cases
of
this kind, the law recognises that the defendant was acting
involuntarily and affords him a defence
of
automatism.
The second exception is where the individual is unable to control
his behaviour because
of
a disease
of
the mind which gives rise to
the defence
of
insanity.’ The third
is
where
loss
of
control is
caused by provocation, which is our concern here.
I.
THE
BASIS
OF
THE
DEFENCE
Typical cases
of
provocation are where the defendant kills in a fit
of
rage brought on by something wrongful the deceased said2 or
did3 to him, or by discovering the deceased in an act
of
aultery
with his
or
her ~pouse.~ The basis
of
this exception is however
sui
generis.
The first two exceptions cover cases in which the individual
is
deprived
of
his self-control
in
circumstances he can do nothing
’
In Doyle
v.
Wicklow County Council [1974]
I.R.
55,
the Supreme Court affirmed the
existence of the defence of irresistible impulse in lrish law.
’
R.
v.
Hopper 119151 2
K.B.
431 (a threat with a ba onet); Kwaku Mensah
v.
R.
[1946]
A.C.
83
(a stab wound);
People
v.
MacEoin 11978rI.R. 27 (a blow
to
the head
For
example, a taunt
or
insult; see text at note
30
below.
..
with
a
hammer).
Holmes
v.
D.P.
P.
[
19461
A.C.
558.
‘
R.
v.
Maddy (1672)
1
Ventris 158 (also reported as
R.
v.
Manning in
T.
Ryam. 212;
133
134
THE
MODERN
LAW REVIEW
[Vol.
50
about, whereas the provocation exception covers cases in which he
merely
loses
control in circumstances in which it is difficult but not
impossible
to
retain it. This distinction is important as it brings out
the fact that in cases of provocation the critical question is whether
the defendant
ought
to have controlled his behaviour. Thus in
contra-distinction to cases of automatism and insanity, his capacity
for
self-control is not in dispute; rather the issue is his failure to
exercise that capacity in difficult circumstances. In a word, the
question is
should
the defendant have controlled his behaviour?-
not
could
he have done
so?’
Failure to attend to this distinction lies at the heart
of
much
of
the confusion surrounding the defence
of
provocation. It is
responsible for the partial eclipse
of
the normative dimension
of
the defence in modern Irish criminal law, and for many
of
the
difficulties associated with the question
of
the quantum
of
retaliation
permissible under the defence elsewhere in the common law world.
Suffice it to say for the moment that the distinction helps
to
explain the partial character of the defence: the fact that it is
confined to the offence
of
murder and operates only to reduce a
charge
of
murder to one
of
manslaughter.6 Although it is impossible
to be dogmatic about the reason for this state
of
affairs, it is
submitted that it is a reflection
of
the law’s traditional reluctance to
depart from the principle that individuals endowed with the capacity
to control their behaviour are at all times expected to do
so.’
Thus there has never been any question
of
the recognition
of
provocation as a general defence to a criminal charge, although
evidence
of
provocation has always been regarded as grounds
for
the mitigation
of
punishments8 Indeed, it is arguable that the
recognition
of
provocation as a partial defence to a charge
of
murder
is
more an accident
of
legal history than a departure from
legal principle. In early modern criminal law, provocation was
bound up with the issue
of
malice aforethought. Unlike its modern
counterpart, malice aforethought then implied some degree of
forward planning and was typically established by showing that the
R.
v.
Welsh
(1869) 11
Cox C.C.
336.
Coke,
3
Inrtirures
(1797)
55;
Hale,
1
Pleas
of
?he Crown
(1736) 453;
Foster,
Crown
Cases and Discourses
on
the Crown Law
(1792)
290;
East,
1
Pleas
of
?he Crown
(1803)
232;
Blsokstone,
4
Commentaries
(1791) 184.
The modern view is that the defence
of
provocation is available only to a charge
of
murder. In
R.
v.
Campbell
[1978)
3
C.C.C.
(2d)
6 (Ont. C.A.), Martin
J.,
delivering the judgment
of
the Court, held that the
defence could not reduce a charge
of
attempted murder to one
of
attempted manslaughter
(apparently on the ground that the
raison dhe
of
the defence derived from the fact that
murder was the only criminal offence carrying a fixed penalty). But this contradicts the
position at common law:
Thompson
(1825)
1
Mood.
80;
Bourne
(1831)
5
C.
&
P.
120;
Hagen
(1837)
8
C.
&
P.
167-and, it is submitted, is illogical.
’
“There may be
,
. .
infirmity
of
mind and instability
of
character, but
if
it does not
amount to insanity, it is no defence”: Sellers
J.,
directing the jury, in
Bedder;
and
adopted on appeal to the House
of
Lords, by Lord Simonds, L.C., delivering the
judgment
of
the House:
[1954] 2
All
E.R.
802.
“For
crimes in general, provocation is a matter
of
mitigation,
to
be considered by the
judge in his discretion after conviction”: Glanville Williams,
Texrbook
of
Criminal Law
(London,
1978) 477.
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