Provocation and Human Frailty

NatWW

Hi all,

I know that provocation is described as a concession to human frailty and I understand the rationale behind it.

But, who said in the first place that provocation as to be considered a concession to human frailty? Does this principle come from case law or academic writing? Just want to satisfy my curiosity there...

I have looked online for the source of this comment but did not find anything.

Thanks for your help,
Nat

Tom Young

There is a raft of case law in this area - Human Frailty is a feature of duress and is mentioned in R v Camplin.

The original test: -

R. v. Duffy [1949] 1 All ER, per Devlin J: ‘[Provocation is] some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him...for the moment not master of his mind.’

and ...

R. v. Camplin [1978] AC 705, per Lord Diplock:

[A]s a result of the changes effected by s. 3 a jury is fully entitled to consider whether an accused person, placed as he was, only acted as even a reasonable man might have acted if he had been in the accused’s situation….
t would now be unreal to tell a jury that the notional ‘reasonable man’ is someone without the characteristics of the accused.… [T]he question … to be considered by the jury would be whether they considered that the accused placed as he was, and having regard to all the things that they found were said, and all the things that they found were done, only acted as a reasonable young man might have acted, so that, in compassion, and having regard to human frailty, he could to some extent be excused even though he had caused a death….

Reaction to Provocation:

The People (DPP) v. MacEoin [1978] IR 27: ‘If the Prosecution can prove beyond reasonable doubt that the force used was unreasonable and excessive having regard to the provocation, the defence of provocation fails.’

more recently:

The People (DPP) v. Mullane Court of Criminal Appeal, Unreported, March 11, 1997:

[T]he impugned sentence in MacEoin really comes down to creditability of testimony rather than to any suggestion that the accused’s conduct is to be once more judged by an objective standard…. Where a person reacts violently to some alleged provocation, then a judge should pose to the jury the question: did the accused react in a way that bore a reasonable relation to the provocation offered as far as his temperament, character and circumstances were concerned, or was this an attack in which the provocation did not justify the force used - judging such force from the accused’s state of mind.... [T]he trial judge is required to make it clear to the jury at all times that they must decide mailers by reference to the state of mind of the accused. That is not to say … that simply because an accused asserts that he was provoked and lost control, that the jury must necessarily accept that.… They must make up their minds as to what credibility they afford to the version put forward by the accused or any witnesses he may call on his behalf.

There is a LRC Paper on this from 2003 which to the best of my knowledge is dormant and had some good proposals in relation to this area of law.

Tom

NatWW

Thanks for that Tom.

From what I understand, Lord Diplock is therefore the one who came up with the concept of concession to human frailty then. Correct?

Thanks for the heads up on the LRC, I have already downloaded it in preparation for my assignment on the subject.

Just wanted to know who to attribute the concession to human frailty principle to so I could mention it too.

Thanks again.
Nat

Tom Young

I assume so, but you should see this S. 3, Homicide Act, 1957 (England).

NatWW

Will have a look at it. Thanks again for your help Tom, really appreciate it.

Tom Young

NatWW wrote: »

Will have a look at it. Thanks again for your help Tom, really appreciate it.

I would suggest looking at the vacillating nature of the test in Ireland. Tom O'Malley's book will assist you with that.

NatWW

Duly noted Tom. Thx

maccydoodies

Hi,

Looks like we are doing the same assignment. Any more tips?? Im going to make a start on mine next week, just doing my research now.

Mac

2040

Try to get your hands on this book. It traces all of the criminal defences back to their origin. Loads of depth. Perfect source for an assignment on the subject. I found it really useful when i was studying Criminal Law.

Also, i don't know what the title of your assignments is, but it might be an idea to look at some Australian case law for comparative analysis. There were/are some really interesting legal developments with provocation in Australia. It's been abolished in a few states.