Supreme Court judge urges review of provocation defence

A judge of the Supreme Court of Ireland has said the lack of a “legislative response” to long-standing difficulties with the defence of provocation is “dispiriting”.

Mr Justice Donal O’Donnell said difficulties with the defence were first identified by the Law Reform Commission over 15 years ago and were continuing to have an impact on murder trials.

He made the remarks in a Court of Criminal Appeal judgment which overturned a murder conviction because the trial judge’s response to jury questions regarding provocation were “misconceived and confusing”.

Mr Justice O’Donnell raised concerns that the defence was being treated as a means of distinguishing between different types of homicide and is “potentially available in almost any hot-blooded killing”.

The defence can also be used to reduce murder to manslaughter, which does not carry the same mandatory life sentence as murder.

A provocation defence can be raised with a statement from the accused, which then places a duty upon prosecutors to prove the accused “had not responded completely inappropriately, but genuinely, to something, perhaps anything”.

However, Mr Justice O’Donnell suggested the defence implied victims were “somehow to blame for their own death”.

He also called for a clarification in the law if it was felt that manslaughter was a more appropriate charge for certain intentional killings, so this could happen without “the fiction the victim’s conduct was somehow relevant, responsible or indeed culpable”.

Mr Justice O’Donnell said the issues were “matters for broader debate and, if thought appropriate, reform”.