CrimProf Blog

Editor: Kevin Cole
Univ. of San Diego School of Law

Monday, February 6, 2023

Prendergast on The Provocation Defence

David Prendergast (School of Law, Trinity College Dublin) has posted Judicial Stewardship of the Provocation Defence in People (DPP) v McNamara ((2021) 3 Irish Supreme Court Review 69) on SSRN. Here is the abstract:
The defence of provocation reduces murder to manslaughter on the basis that the killing was carried out in a state of reduced self-control due to an extreme emotional reaction to a provoking act done by the deceased to the defendant. People (DPP) v McNamara [2020] IESC 34 is the first Irish Supreme Court judgment on the partial defence’s substance and is a comprehensive restatement. The case provides opportunity for renewed consideration of provocation and the question of judicial stewardship of common law, noting that no Irish statute has yet modified the defence. McNamara insists on limits to the provocation defence’s availability. The case has been seen as changing Ireland’s ‘wholly subjective’ provocation defence to partly objective. This article will say, however, it has never been accurate to call the Irish provocation defence ‘wholly’ or ‘entirely’ or ‘purely’ or ‘exclusively’ subjective and McNamara – in its central holding and main description of the defence – reasserts already existing objective limitation.
McNamara can be reconciled with the landmark Court of Criminal Appeal judgment, People (DPP) v MacEoin [1978] IR 27. While in its main part McNamara is conventional incremental adjustment of common law doctrine, its obiter dicta, as will be argued in section 4 of this article, are a misplaced attempt to adjust law to reflect social mores. Saying the partial defence is unavailable specifically in cases of intoxicated defendants, warped notions of honour or sexual propriety, and ‘male pride’ are new stipulations purportedly limiting the defence’s availability. These statements have an ambivalent status. They may be merely illustrations of how cases should work out, or they might be taken as new rules and as such they risk amounting to judicial legislation. The provocation doctrine already contains the means for its evolving application. There is meant to be a grave provoking act to ground the partial defence and what particular acts, in context, will be considered a grave provocation will change with the times. The provocation defence does not have to be ‘adapted to new social mores’ with judicial stipulations, as the McNamara judgment sees it; rather, the results of its application should automatically track social morality’s evolution. It should be redundant for the court to stipulate, for instance, that warped notions of honour cannot ground the provocation defence. For ‘warped’ honour cannot be used to generate sufficient provocation out of what are, in society’s view, non-existent or, at most, low-level, insults. In the Irish context, such statements by the Supreme Court might be helpful in addressing the mistaken notion that just about anything can constitute a provocation. It will be argued in section 3 of this article, however, that McNamara and the concurrent case of People (DPP) v Almasi [2020] IESC 35 represent a missed opportunity for the Supreme Court to more definitively emphasise and strengthen the gravity of provocation requirement as a general limitation on the availability of the defence. This would have been a more efficient and less contentious way to tighten up the defence than the approach taken by the Supreme Court. Section 2 of this article will articulate a contemporary rationale for provocation. As a contemporary rationalisation, it cannot use, and is not beholden to, reasons that are no longer relevant or worthy. Provocation, it will be suggested, can be seen today as reflecting culpability-extenuation somewhat similarly to the diminished responsibility defence. For the avoidance of doubt, this is not a statement of law, it is a rationalisation projected on to the provocation defence. What appellate judges have said about the defence’s rationale is not authoritative in contrast to what they do in regard to its substance. The rationalisation offered in section 2 happens to be drawn from academic writing rather than judicial exposition. Section 2, and this article in general, participates in a tradition of seeking to make sense of an area of law where the collection of judicial statements lack coherence and secure connection to general principles of the criminal law system. Section 2 is an effort to contribute towards a rational reconstruction of the provocation defence, which, in turn, contributes to debate about what to do with it. The section 2 rationalisation will also serve to inform some of the critical analysis of the McNamara judgment that follows in section 3, which is the ‘casenote’ section of this article. After that, section 4 uses a distinction between incremental law-making and legislation to evaluate the judicial stewardship of common law doctrine in McNamara. In concluding, section 5 speculates on McNamara’s possible legacy.
See final published version: David Prendergast, ‘Judicial stewardship of the provocation defence in People (DPP) v McNamara’ (2021) 3 Irish Supreme Court Review 69.

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