The Merits of Ambiguity: Provocation from the Irish Perspective
| Published date | 01 April 2023 |
| DOI | http://doi.org/10.1177/00220183231165822 |
| Author | John E Stannard |
| Date | 01 April 2023 |
The Merits of Ambiguity:
Provocation from the Irish
Perspective
John E Stannard
Queen’s University of Belfast, UK
Abstract
The old common law defence of provocation has been abolished in many jurisdictions, including
England and Wales and Northern Ireland, but it is still part of the law south of the Irish border. Up
to now the Irish law of provocation has been built up solely by the courts, and has developed a
number of peculiarities, not least the apparent rejection of the objective test by the Court of
Criminal Appeal in the 1978 case of MacEoin. However, it is not until recently that the defence
has come to the attention to the Supreme Cour t, in the 2020 case of McNamara.Inthiscase
the court set out to clarify the law, but the case hasbeencriticisedbycommentatorsforitsfailure
to clear up some of the existing ambiguities; indeed, it has been said that it has even introduced
further ambiguities into the law that did not exist before. Be that as it may, this paper argues that
McNamara is to be welcomed, in so far as it promotes a flexible approach and one which recog-
nises the essentially normative nature of the provocation defence.
Keywords
Criminal law, Ireland, provocation, Supreme Court, guidance for juries, McNamara
John E Stannard
♦
Some twenty years ago the Law Commission for England and Wales in its Consultation Paper suggested that
the then current law of provocation was ‘profoundly unsatisfactory’and that its defects were ‘beyond cure by
judicial development of the law’.
1
In response, the overwhelming majority of those consulted agreed that this
Corresponding author:
John E Stannard, School of Law, Queen’s University, University Rd, Belfast BT7 1NN, UK.
Email: j.stannard@qub.ac.uk
♦School of Law, Queen’s University, Belfast. I am grateful to David Prendergast and to the anonymous reviewers for their helpful
comments on the previous draft.
1. Law Commission, Partial Defences to Murder Consultation Paper (Law Com No 173 (2003)) para 12.5.
Article
The Journal of Criminal Law
2023, Vol. 87(2) 122–139
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DOI: 10.1177/00220183231165822
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was the case.
2
Certainly it could not be denied that the law was riddled with anomalies and ambiguities, despite a
previous attempt at legislative reform
3
and a torrent of decided cases.
4
What was the rationale of the defence?
5
What sort of conduct could constitute provocation?
6
To what extent did the capacity of D (the defendant) to
control his or her conduct have to be impaired?
7
What was meant by the objective requirement that a reasonable
person would have done as D did,
8
and to what extent in deciding that question was the court required to take into
account his or her personal idiosyncracies?
9
As is well known, these consultations resulted in a wholesale legis-
lative reform of the defence in the Coroners and Justice Act 2009, and yet similar questions remain.
10
In particu-
lar: (1) the theoretical basis of the new defence is no clearer than that of the old;
11
(2) no guidance is provided in
the Act as to what is meant by a ‘loss of self-control’,
12
except to say that it no longer has to be ‘sudden’;
13
(3)
though the requirement of a ‘qualifying trigger’has narrowed the law considerably, there are still unresolved
issues, most notably with regard to sexual infidelity
14
and (4) there is still disagreement as to the function of
the objective requirement.
15
Indeed, there are even some who argue that the defence should be abolished in
its entirety.
16
One might very well conclude that, at least as far as England and Wales is concerned, the
2. Law Commission, Partial Defences to Murder (2004), para 3.14.
4. This includes no less than 36 cases decided over the last century in the Supreme Court, House of Lords and Privy Council.
5. In particular, was it justificatory or excusatory in nature? see F McAuley, and J P McCutcheon, Criminal Liability (Round Hall,
2000) at 853–856; M Wasik, Partial Excuses in the Criminal Law’(1982) 45 MLR 516; J Dressler, ‘Provocation: Partial
Justification or Partial Excuse’(1988) 51 MLR 467.
6. According to Jeremy Horder, there were historically only four categories in this connection: (1) a grossly insulting assault; (2)
seeing a friend, relative or kinsman being attacked; (3) seeing an Englishman unlawfully deprived of his liberty and (4) seeing a
man in the act of adultery with one’s wife: Provocation and Responsibility (Oxford University Press, 1992), 24. Following
section 3 of the Homicide Act 1957, anything said or done could constitute provocation: R v Doughty (1986) 83 Cr App R
7. Clearly there did not have to be a loss of self-control in the sense of automatism, but it was not entirely clear precisely what else
was entailed, the test generally being stated in terms of whether D was ‘so subject to passion as to make him or her no longer
master of his mind’:R v Duffy [1949] 1 All ER 932n (Devlin J). See also R v Oneby (1727) 2 Ld Raym 1485, 92 ER 465;
Phillips v R [1969] 2 AC 130, 137-8 (Lord Diplock); R v Smith (Morgan) [2001] 1 AC 146, 160 (Lord Hoffmann); C
Hanly, An Introduction to Irish Criminal Law (Gill Education, 3rd edn, 2015) at 249. One major concern in this connection
was that the requirement had no technical meaning, and tended to be interpreted on the basis of an imprecise folk-psychological
association between lost control and extreme anger: see GR Sullivan, H Crombag and JJ Child, ‘Loss of Control in the Appeal
Courts’(2021) 72 NILQ 200, 214.
8. As has been said, not many reasonable people kill in response to provocation; see A McGrath, ‘The Provocation Predicament’
(2010) 9 Hibernian Law J 26.
9. This question was a fertile mother of litigation for over 50 years, including no less than six cases at the highest level: see Bedder
v DPP [1954] 1 WLR 1119; DPP v Camplin [1978] AC 705; R v Morhall [1996] AC 20; Luc Thiet Thuan v R [1997] AC 131; R
v Smith (Morgan) [2001] AC 146 and A-G for Jersey v Holley [2005] UKPC 23, [2005] 2 AC 580.
10. See generally B Mitchell, ‘Loss of Control under the Coroners and Justice Act 2009: Oh No!’In A Reed and M Bohlander (eds),
Loss of Control and Diminished Responsibility: Domestic, Comparative and International Perspectives (Routledge, 2011), ch
3; Sullivan, Crombag and Child, above n 7.
11. See J Herring, Criminal Law: Text, Cases and Materials (Oxford University Press, 9th edn, 2020), 306–308; A Norrie, ‘The
Coroners and Justice Act 2009 –Partial Defences to Murder (1) Loss of Control’, [2010] Crim LR 275. The original intention of
the Law Commission was to shift the defence in a justificatory direction by removing the ‘loss of control’requirement
altogether, but this was eventually retained by section 54(1)(a) of the Act: see Mitchell, above n 10, pp. 44–47; Sullivan,
Crombag and Child, above n 7.
12. Herring, above n 11, pp. 237–239: R v Jewell [2014] EWCA Crim 414 at [29]; R v Gurpinar [2015] EWCA Crim 178 at [20]; R
v Goodwin [2018] EWCA Crim 2287 at [41]-[47].
14. See section 56(6) of the 2009 Act as interpreted by R v Clinton [2012] EWCA Crim 2, [2013] QB 1; F Stark, ‘Killing the
Unfaithful’(2012) 71 CLJ 260.
15. Herring, above n 11, pp 309–310.
16. Herring, above n 11, pp 315–317; Horder, above n 6, p 197; Mitchell, above n 10, p 50; Sullivan, Crombag and Child, above n
7.
Stannard 123
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