Every first year law student will know that provocation (currently termed ‘loss of self-control’ in England and Wales) can reduce a conviction for murder to one of manslaughter. It originated at common law as a limited concession to offenders who killed under a sudden and complete loss of control triggered by the insulting words or acts of the deceased. Instead of a conviction for murder and the death penalty, they would attract a conviction for manslaughter and a punishment that would take into account the circumstances in which they killed.
Initially, the test for provocation reflected an objective standard associated with the degree of self-restraint that could be expected of a person of reasonable firmness. It did not take account of inherent characteristics of the individual accused person which would render certain forms of provocation more intolerable to him or her than to a person without those characteristics. From about the middle of the twentieth century onwards, the test began to be modified in some common law jurisdictions to allow for certain characteristics of the individual accused to be taken into account when assessing the nature of the provocation, the impact it might have on that individual and his or her reaction to it.
Despite such developments, the application of the provocation defence remains controversial in its interpretation and application in many common law jurisdictions. So, for example, the key element of a sudden and complete loss of self-control in response to a provocative act has proved difficult to establish for women who have killed after having been subjected to many years of violent and degrading abuse at the hands of a partner. By comparison, in some formulations, it can be established where a man reacts violently on being taunted by the sexual indiscretions of a partner.
The test for provocation continues to be tweaked and moulded in different ways in different jurisdictions in an effort to accommodate it to the perceived requirements of contemporary social values, justice and fairness between accused persons and victims. A few weeks ago, in People (DPP) v McNamara , the Irish Supreme Court responded to these issues for the first time.
The accused was a member of a motorcycle club. One evening on leaving a pub, he and his wife were accosted by members of a rival motorcycle club with whom they were engaged in a ‘turf dispute’. The rival club members forcefully stole the accused’s jacket bearing his club’s insignia and flag. This was perceived by the accused as a gross insult to him and the club, including its president.
The next day, the accused drove to the rival’s clubhouse on being told that one of his attackers was there. The accused was armed with a sawn-off shotgun and claimed that he was in a state of fear and distress on account of the events of the previous day. On arriving at the clubhouse, he discharged the gun killing one of the rival club members at close range. The victim was not one of those who had accosted the accused the previous day. At his trial for murder, the accused sought to rely on the provocation defence (among others).
The trial judge ruled that the facts presented did not provide a sufficient basis upon which a reasonable jury, properly instructed, could find for the accused on provocation. Accordingly, the judge refused to allow that partial defence to be put to the jury. The accused was convicted of murder and appealed unsuccessfully to the Court of Appeal and from there to the Supreme Court.
The Supreme Court was asked to consider four questions: 1. Does the defence require the provocative words or actions to come from the ultimate victim? 2. To what extent can background circumstances found or form the defence? 3. Does the defence contain any objective element either as to reaction or as to mode of response or as to time of response? 4. What role, if any, does the trial judge have in excluding the defence from the jury?
The previous test in Ireland
When Ireland was established as an independent State in 1922, it incorporated into its law, by operation of its Constitution, the objective test for provocation applicable in English criminal law at that time. This required, among other things, an actual loss of control on the part of the accused, the provocative act to be such as to send a reasonable person out of control, and proportionality between the accused’s reaction and the provocation.
It was not until 1978, that the test was actually considered directly in a decision of the Irish Courts. In People (DPP) v MacEoin, the Court of Criminal Appeal responded to the widespread criticisms of the objective test current at the time by adopting what has generally been perceived as a wholly subjective test. This focused on the effects that the provocation would have on the mind of the individual accused and, in particular, on whether it was such as to cause in him or her a sudden and complete loss of self-control and his or her violent reaction. Accordingly, if there was evidence that the individual accused was so provoked, the trial judge should leave it to the jury to determine whether the prosecution had managed to remove any reasonable doubt on that score.
On the face of it, the wholly subjective approach, which does not seem to have been taken up by any other jurisdiction, presents its own problems. Potentially, it opens the door to the partial defence being used in situations where the killing reflects the expression of deeply objectionable or distorted social beliefs or perceptions of honour. Notionally, for example, it might operate to the benefit of those who kill in a furious reaction to: a daughter sullying family ‘honour’ in matters of marriage or sexual relations, one partner asserting independence from the other, sexual infidelity, unwanted homosexual advances and, of particular relevance to the instant case, insult to gang honour.
Modifying the subjective approach
Charleton J., in the Supreme Court in McNamara, was not persuaded that MacEoin laid down the purely subjective test that was attributed to it in some quarters. In his view, it still left a role for the trial judge to determine whether there was sufficient evidence to warrant leaving the provocation issue to the jury. This implied that there must be limitations to the defence, otherwise it might have to be left to the jury where the accused had reacted with lethal force to what, on any objective view, would have been no more than an occasion for the sort of hurt or disappointment that is a common feature of everyday life for most people. In Charleton J.’s view, there is “a minimal degree of self-control which each member of society is entitled to expect from his or her fellow members”.
Building on these perspectives, Charleton J. reasoned that the provocation defence has always been limited by objective elements. Not only must the provocation be such that it propels the individual accused into a sudden and complete rage in which he cannot refrain from his violent reaction, but the provocation itself must exceed a common minimum threshold. It cannot be satisfied by a “mere insult”. The provocative words or actions must be “outside the bounds of any ordinary interaction acceptable in our society”. Accordingly, Charleton J. asserted:
“The defence does not apply to warped notions of honour and the proper sexual conduct of males or females, or mere hurt to male pride, or to gang vengeance, or to situations where sober people sharing the same fixed characteristics as the accused, where relevant, as to age, or mental infirmity, or sex, or pregnancy, or ethnic origin, would be able to exercise self-restraint in the same background circumstances as apply to that accused.”
Moreover, the rage must not be fuelled by intoxication from alcohol or drugs.
In moving away from the purely subjective test associated with MacEoin, Charleton J. seemed to be embracing the mixed objective/subjective test that had developed at common law in England and Wales (before it was replaced by a statutory test) and in some other common law jurisdictions. Whether the accused was genuinely provoked, together with the nature of his or her retaliatory response, would be assessed against the degree of self-restraint that could be expected of a sober person of reasonable firmness with certain of the accused’s characteristics (eg. age, disability, ethnicity, gender, pregnancy).
Unfortunately, Charleton J. did not go on to engage with some of the difficulties that this peculiar mixed test has given rise to in other jurisdictions. Instead of focusing on what was in the mind of the individual accused, the jury would have to treat him or her on the basis of what could be expected of an artificially constructed person in the same circumstances. Moreover, there is the added complication of determining which of the accused’s characteristics should (or should not) be attached to the person of reasonable firmness. What, for example, is the objective justification for excluding the ‘short fuse’ condition which an accused might have suffered from all of his or her life? By denying it, the test is subjecting the accused to a standard that he or she cannot reach.
The retention of an objective element in the test has important implications for the role of the trial judge. If the test is wholly subjective, there is a very low threshold for leaving the provocation issue to the jury. Essentially, if there is any evidence that the accused might have been provoked into reacting in the manner that he or she did, the judge should leave it to the jury to determine if the accused was genuinely provoked and if his or her reaction was proportionate to the provocation suffered. With the mixed objective/subjective test, however, the threshold is higher. Here the judge could withdraw the matter from the jury where, for example, the alleged provocation consists of nothing more than the sort of hurt or disappointment that is a common feature of everyday life.
Passage of time
A distinctive feature of the provocation defence is that the reaction to the provocation should be sudden and explosive. A cooling off period, or evidence of planning or revenge, will usually prove fatal as they suggest that the effects of the provocation had subsided and that the accused had regained self-control by the time of the killing. An entirely subjective test, however, would open up the possibility that an individual, such as the accused in McNamara, could even seek to rely on it in respect of his or her violent actions the next day. While Charleton J. acknowledged that circumstances could vary from case to case, he considered that there was a certain unreality about relying on provocation the day after it was allegedly suffered. That would afford no basis upon which a jury could fairly find for an accused on the issue. Accordingly, the judge should not allow the defence to go to the jury in that instance.
Retaliation against the provoker
An unusual feature of the facts in the McNamara case is that the deceased victim was not a member of the group that robbed the accused and insulted the honour of his motorcycle club. He was merely a member of the rival club in question. Charleton J. acknowledged that there could be exceptional circumstances in which the provocation defence could be relied upon even though the person killed was not the immediate author of the provocative behaviour. Possible examples might include group provocation, or the equivalent of transferred malice (where the accused misses his target and kills another). None of those situations applied in McNamara, so the provocation defence could not be made out in that case.
Summary of the test
Charleton J. very helpfully provided a summary of the elements of what is now required in Irish law to reduce a conviction for murder to one of manslaughter on the basis of provocation. It reads, almost verbatim, as follows. There must be a sudden, and not a considered or planned, loss of self-control. It must be a total loss of all control, as distinct from losing one’s temper. There must be a complete overwhelming loss of ordinary self-restraint, in the face of what was done or said, that the accused cannot help intending to inflict death or serious injury, and could not stop himself or herself from doing so. The total loss of self-control cannot be attributable to intoxication on drink or drugs. The accused’s actions are to be considered as if he or she was not acting under the influence of drink or drugs when he or she killed the victim.
Loss of self-control also must be in response to a genuinely serious provocation, not a mere insult, by the victim. The provocative act, by action or gross insult, is required to be outside the bounds of any ordinary interaction acceptable in our society. The defence does not apply to warped notions of honour or to any unacceptable ideas as to the proper romantic or sexual conduct of males or females; nor hurt to male pride; nor to gang vengeance. Nor does it apply in situations where ordinary people, sharing, if relevant, the same fixed characteristics as the accused (eg. age, sex, pregnancy, mental infirmity, ethnic origin, or state of health), would be able to exercise self-restraint in the same background circumstances. People can be provoked, but juries should always remember that there are degrees of provocation and there are also degrees of reaction to being provoked. What the accused did, and the accused’s claimed mental state, must be judged against that background.
Decision in McNamara
Applying this test to the facts in McNamara, Charleton J. had no difficulty in upholding the trial judge’s decision not to leave the provocation issue to the jury. He explained that the judge’s role was to decide whether, on the version of events most favourable to the accused, the jury might fail to be satisfied beyond a reasonable doubt that the killing was unprovoked. The learned judge was satisfied that there was no foundation of fact on which a jury could reasonably find provocation in this case.
Interestingly, Charleton J. considered that the position might be different if the accused had reacted the day before at the point at which he (and his wife) was robbed and insulted. Depending on the nature of his reaction, that could possibly have provided a basis for the judge to leave the matter to the jury. In the event, it was lost due to the passage of time and the fact that the victim was not part of, and had not even been present at, the provocation. Equally fatal was the disproportion between the nature of the provocation and the response of shooting the victim in the face at close range with a sawn-off shotgun.
The decision in McNamara marks a significant change in the Irish approach to the interpretation and application of provocation as a partial defence to murder. Among other things, it replaces what was considered to be a purely subjective test with a mixed objective/subjective test. In doing so, however, it introduces some of the difficulties that other jurisdictions have experienced with that approach. While Charleton J. offers a compelling argument for some practical limits on what should qualify as provocation, he is less successful in charting a principled basis for the parameters of the objective/subjective test.