Provocation Case Study

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The defence of provocation
This is a partial defence which will never justify an acquittal and will only apply to murder. If an accused pleads provocation to a charge of murder and succeeds he will be convicted of manslaughter reducing the sentence. In order for the defence to be raised before the jury the trial judge must be satisfied that evidence of provocative conduct by the deceased could have gave way for loss of control by the accused.
R v Duffy
In this case provocation was defined as an act or series of acts carried out by the deceased man to the defendant which would cause in any reasonable person a sudden loss of self- control making the accused overcome with passion and momentarily not the master of his own mind.
The English Approach …show more content…

Both men had been drinking the night he died. The deceased would usually become aggressive after drinking. The accused was attacked by the deceased and a struggle followed the accused lost control and hit the deceased with the hammer he was threatened with. He was convicted of murder but appealed on the basis that he had been provoked by the deceased the court of criminal appeal rejected the common law objective test and stated it was no longer part of Irish law. The test was entirely subjective which required the jury to decide whether or not the accused had been provoked to the extent that he lost self- …show more content…

He lost control due to this and killed the victim with a wooden stake. He was convicted but appealed on the grounds that the judge had misdirected the jury. The Criminal Court of Appeal found that the Judge had directed the jury on the question of intention that the judge had erred in linking provocation with intention. For the defence to succeed it is not necessary to show lack of intention to kill or cause serious injury, the judge gave the impression it was. The trial judge also gave misdirection about the test used to determine if provocation had taken place. The test was not whether it was “likely” or “probable” that the provocation triggered

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