Lack of response to issues with provocation defence ‘dispiriting’

A Supreme Court judge has said it is “dispiriting” that, despite difficulties with the defence of provocation in Irish law being identified several times over the last 15 years, there has been no “legislative response”.

It “may not be sufficiently appreciated just how significant these difficulties are”, Mr Justice Donal O’Donnell said.

His remarks about the defence of provocation generally were made in a Court of Criminal Appeal judgment quashing the conviction of a Co Limerick man for the murder of his partner at their home in Craughwell, Co Galway in July 2005.

A retrial was ordered in the case of Kieran Lynch (50), of Francis Street, Askeaton, Co Limerick.

Mr Lynch was convicted in 2007, by a 11/1 jury verdict, of the murder of his partner Catherine McEnery (35), Feenagh, Kilmeedy, Co Limerick, at Rose Cottage, Derryhoyle Mór, Craughwell between July 16th and 17th, 2005. He denied murder and advanced a defence of provocation.

On Wednesday, the court granted Mr Lynch’s appeal against conviction after finding the trial judge’s response to questions raised by the jury concerning provocation, while “entirely well meant”, was “misconceived and confusing”.

Giollaíosa Ó Lideadha SC, with John Byrne BL, for Mr Lynch, observed considerable time had passed and suggested the court defer a decision on a retrial to allow his side raise issues with the DPP in that regard. Counsel for the DPP said she was instructed to seek a retrial.

Mr Justice O’Donnell, sitting with Mr Justice Michael Moriarty and Mr Justice Michael White, said the court’s decision on a retrial stood and any matters arising were for the parties.

Giving the court's judgment, Mr Justice O'Donnell said difficulties with Irish law on provocation were identified by the Law Reform Commission among others over the last 15 years.

The difficulties arose because the mandatory life sentence for murder means accused people have little incentive to plead guilty, he said.

The mandatory sentence gives rise to defences, such as excessive force, self-defence and provocation, which can reduce murder to manslaughter and appeared designed to address “an instinctive desire” to distinguish between different types of homicide.

Subjective test

A provocation defence can be raised with little more than a statement about loss of control and involves the prosecution having to prove, beyond reasonable doubt and based on a subjective test related to each particular accused, that accused was not acting under provocation. This meant the provocation defence “becomes potentially available in almost any hot-blooded killing”.

At its heart, provocation “is only a partial excuse”, he said. It expressed a societal view some conduct, if not fully excusable, was partially understandable so as to reduce, but not wholly remove, an accused’s culpability.

If provocation as a defence to murder was taken to its logical extreme, it might be used for conduct society might find “deeply offensive and truly inexcusable”.

It “adds insult to injury” for a victim’s family if a defence of provocation suggesting the victim was “somehow to blame for their own death” succeeds when it might only mean a jury was not satisfied beyond reasonable doubt an accused “had not responded completely inappropriately, but genuinely, to something, perhaps anything, emanating from the accused”.

If society decides murder should be reserved only for deliberate, cold-blooded and calculating killings, and manslaughter is appropriate for all other killings even if intentional, that “should be made clear” by appropriate law and “without the fiction the victim’s conduct was somehow relevant, responsible or indeed culpable”.

If, as most countries have decided, any intentional killing of a person should be properly defined as murder, the breadth of the defence of provocation should be defined to capture those cases where it was considered a lesser verdict may be appropriate.

These are “matters for broader debate and, if thought appropriate, reform”, the judge said.