Provocation

Victor

From another thread.

Indricotherium wrote: »

But in Ireland could he plead provocation and have his charge reduced to manslaughter? It seems like he could?

Surely provocation needs proximity? That one can't just get upset by something separated by space and time and kill people?

How far can one claim provocation? Is it exculpatory or merely a matter of mitigation?

If Tom is called offensive names by Dick, is violence acceptable (as opposed to somewhat understandable)?

Tom Young

Provocation is famously described by Charleton in his book on Criminal Law as a “concession to human frailty.”

It was defined by Devlin J. in R v Duffy in the following terms: “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 loss of self control, rendering the accused so subject to passion as to make him or her for the moment not the master of his mind.”

This still represents the definition of provocation in Irish law, save that we have abandoned the “reasonable person” consideration for an entirely subjective approach. We also recognize the possibility of words alone amounting to provocation, which Devlin J.’s summary does not seem to account for. Provocation does not mean that the mens rea (Mental element) for murder is not present: merely that the third party’s word or actions are considered to have contributed to that mens rea and that therefore the law will partially excuse it (DPP v MacEoin).

However, the provocative act or word must cause the Accused to commit the murder. So for example in DPP v Davis, the Accused was not allowed to blame provocation where it was established he was angry long before the third party’s actions and had already decided to embark on an assault. So to this extent, causation is relevant in establishing the defence of provocation. Also, there must be an actual loss of control. Provocation can not be invoked as a defence to a pre-meditated revenge killing, for example, where there is a delay in the provocatory act during which the Accused decides on a course of vengeance. It will only really cover “heat of the moment” situations. This was established early on in Mancini v DPP. Similarly, the loss of control must be sudden and temporary.

Indricotherium

Victor wrote: »

From another thread.

Indricotherium wrote: »

But in Ireland could he plead provocation and have his charge reduced to manslaughter? It seems like he could?

Surely provocation needs proximity? That one can't just get upset by something separated by space and time and kill people?

How far can one claim provocation? Is it exculpatory or merely a matter of mitigation?

If Tom is called offensive names by Dick, is violence acceptable (as opposed to somewhat understandable)?

I think that the nature of provocation in Ireland with the MacEoin test allows for the likes of this.

For example, under the entirely subjective test from MacEoin a white supremacist could successfully claim an African sitting in the last seat on the bus was provocation.

As to the proximity.. . Mr brevik could rely on cumulative provocation, r v Thornton 1992 and dpp v o'donoghue 1992 both allow the defs actions to be taken in light of any previous provocation.

Coupled with the Irish courts view that any perceived provocation is provocation this opens up a partial defence for ab.

Subjectivly, the man himself clearly believes his actions were a justified response to the world as he perceives it.

Tom Young

In the English case of R v Thornton established that a seemingly innocuous act may constitute provocation on the basis that it formed part of an overall chain of events whose cumulative effect could be said to have caused the accused to lose all self-control. In the Irish case of DPP v O'Donoghue in the CCA it was found that as domestic abuse was a prevailing factor in the relationship between the accused and the deceased, the accumulation of years of abuse constituted provocation in the circumstances.

A sudden and temporary loss of self-control generally is the result of the alleged provocative act. Can it be said to be the case that the planting of a bomb, and massacre of countless souls was an act, or series of acts that were the actions of a person who was not in some form of knowledgeable self-control?

EDIT: I guess what I am saying is cumulative provocation against a class of people and in two separate locations can't really be said to be provocation, can it?

Victor

Tom Young wrote: »

EDIT: I guess what I am saying is cumulative provocation against a class of people and in two separate locations can't really be said to be provocation, can it?

Have you said that quite right? Which classes of people? Which separate locations - Oslo and the island?

Tom Young

Victor wrote: »

Have you said that quite right? Which classes of people? Which separate locations - Oslo and the island?

I meant to say that.

A class of people or persons - a category or collective;

Two locations - Oslo and on the Island.

If I lose my self-control and knife you due to provocation over an extended period of time, or a single occurrence that could gravitate to lead to my loss of control and kill you, the defence might be alive.

In the context of the premeditated planting of a bomb in a capital city with the single intention of it detonating and causing loss of life and destruction could not, to my mind succeed as a provoked event.

Similarly, procuring an assault rife, traveling to an Island upon which a retreat was being held and taking pot shots [with the pre-formed intention of killing] defenceless students, again cannot not be said to be an act in which self-control was lost - at least that's my opinion.

A sudden and temporary loss of self-control is deficient in this particular example. It was controlled, calculated and executed.

Tom

Brother Psychosis

provocation has to be sudden and immediate - i cant remember the names but i remember a number of cases (particularly in relation to battered wives) where going into another room to get a weapon has been held to show that they were in control of their mind so provocation couldnt lie