Provo­ca­tion de­fence widely used de­spite calls for change

De­fence used in one in four cases but it is rarely suc­cess­ful at trial stage

The Irish Times - - Home News - Conor Gal­lagher Crime Cor­re­spon­dent

Provo­ca­tion, a de­fence which judges have re­peat­edly said re­quires sig­nif­i­cant re­form, is used in a quar­ter of all mur­der tri­als.

Ire­land is unique among com­mon law coun­tries in al­low­ing a mur­der ac­cused to ob­tain a lesser ver­dict of man­slaugh­ter if they can sub­jec­tively show they felt pro­voked into killing.

An anal­y­sis of 124 mur­der cases shows that not only is the de­fence widely used, it of­ten leads to jury ver­dicts be­ing over­turned on ap­peal, lead­ing to a re­trial or a man­slaugh­ter con­vic­tion. This is due to what is widely viewed as con­fus­ing case law in the area which makes it dif­fi­cult for judges to cor­rectly ad­dress ju­ries about the ap­pli­ca­bil­ity of the de­fence.

Now for the first time, leg­is­la­tion is be­ing con­sid­ered as a means of cur­tail­ing its use. Minister for Jus­tice Char­lie Flana­gan is cur­rently ex­am­in­ing the is­sue with a view to chang­ing it from a sub­jec­tive test to an ob­jec­tive test.

This would make it a much harder de­fence to prove and bring Ire­land in line with other com­mon law coun­tries.

The move comes fol­low­ing re­cent high-pro­file mur­der cases where provo­ca­tion was used and af­ter re­peated crit­i­cism of the de­fence by the ju­di­ciary.

“While there are no im­me­di­ate pro­pos­als for new leg­is­la­tion in this area, the Minister is care­fully con­sid­er­ing re­cent ju­rispru­dence and the op­tions for leg­is­la­tion in the pe­riod ahead,” a Depart­ment of Jus­tice spokesman told The Ir­ish Times.

Killing

The provo­ca­tion de­fence was high­lighted this week by the case of Kerry farmer Michael Fer­ris who suc­cess­fully ar­gued he was pro­voked into killing his neigh­bour An­thony O’Mahony be­cause of the ac­tions of Mr O’Mahony over a 30-year pe­riod.

In Oc­to­ber, a jury ac­quit­ted Fer­ris of mur­der but con­victed him of man­slaugh­ter for re­peat­edly driv­ing the forks of his farm tele­porter into the vic­tim’s car, caus­ing “cat­a­strophic” in­juries. On Mon­day he was jailed for five years.

The trial heard ex­ten­sive ev­i­dence that Mr O’Mahony was a very dif­fi­cult per­son to live near. After­wards his fam­ily said the trial had en­gaged in the “vic­tim blam­ing” of the de­ceased.

Dis­cus­sion of the de­fence of provo­ca­tion on RTÉ’s Prime Time pro­gramme on Tues­day night led to the col­lapse of an on­go­ing mur­der trial where it was be­ing used as a de­fence.

For crit­ics of the provo­ca­tion de­fence, one of the main problems is that in Ire­land, un­like the UK, the provo­ca­tion test is ap­plied sub­jec­tively. In other words, the de­fence must only show that the ac­cused felt they were pro­voked, not that a rea­son­able per­son would have been pro­voked in the same cir­cum­stances.

In rec­om­mend­ing re­form of the de­fence, the Law Re­form Com­mis­sion (LRC) de­tailed a hy­po­thet­i­cal sit­u­a­tion in which a white su­prem­a­cist be­comes en­raged at a black per­son for speak­ing to him and kills the vic­tim “in the throes of his big­oted pas­sion”. Legally speak­ing, the man was pro­voked and should be con­victed of man­slaugh­ter rather than mur­der. “But there is no rea­son why the law’s com­pas­sion should be ex­tended to him, given that his be­liefs are not merely un­rea­son­able but are morally re­pug­nant,” the

LRC noted.

Ac­cord­ing to the LRC, the de­fence of­fers pro­tec­tion to peo­ple with char­ac­ter traits which so­ci­ety should never con­done.

“An un­for­tu­nate, and per­haps un­fore­seen, con­se­quence of this ap­proach is that im­moral and an­ti­so­cial traits can be ac­com­mod ated within the Ir­ish ver­sion of the de­fence,” it wrote in 2009 when call­ing for the abo­li­tion of the sub­jec­tive test and its re­place­ment with an ob­jec­tive test.

“This is dif­fer­ent to a self-de­fence claim. You’re not say­ing you were un­der at­tack, you’re say­ing you were pro­voked into a sit­u­a­tion. And that provo­ca­tion could tech­ni­cally be any­thing,” one bar­ris­ter said this week.

The Supreme Court has noted provo­ca­tion “be­comes po­ten­tially avail­able in al­most any hot-blooded killing”. The de­fence also puts the bur­den on the pros­e­cu­tion to prove provo­ca­tion did not oc­cur.

Ac­cord­ing to an anal­y­sis by The Ir­ish Times, of the 125 mur­der tri­als which have taken place in the Cen­tral Crim­i­nal Court since Oc­to­ber 2013, provo­ca­tion has been used in 31 cases (24.8 per cent).

Con­vic­tions

How­ever, it is rarely suc­cess­ful at trial stage. The fig­ures show only four ac­cused suc­ceeded in se­cur­ing a man­slaugh­ter ver­dict af­ter run­ning the de­fence.

In­stead, its value as a de­fence comes dur­ing the ap­peal stage.

There have been 13 ap­peals of mur­der con­vic­tions since Oc­to­ber 2013 in which provo­ca­tion was raised. Seven of these ac­cused were suc­cess­ful in hav­ing their con­vic­tions quashed and a re­trial or­dered.

In five out of the seven suc­cess­ful ap­peals, the ap­peal court found the trial judge had in­cor­rectly ad­dressed the jury on the is­sue of provo­ca­tion.

The readi­ness of the ap­peal courts to over­turn ver­dicts in provo­ca­tion cases led the late Mr Jus­tice Paul Car­ney to call the de­fence “a grave­yard for judges”.

Ac­cord­ing to le­gal sources, the dif­fi­culty stems from the MacEoin case of 1978 in which the sub­jec­tive test of provo­ca­tion was first de­fined. Judges of­ten rely heav­ily on the MacEoin judg­ment when ad­dress­ing ju­ries on the is­sue, but the ap­peal courts have ruled the judg­ment is con­fus­ing and of­ten in­com­pre­hen­si­ble to ju­ries.

“So you have a strange sit­u­a­tion where the lead­ing case on provo­ca­tion is seen as de­fi­cient by the Court of Ap­peal in terms of guid­ance,” one bar­ris­ter said.

There have been re­peated calls from judges, the LRC and le­gal aca­demics to change provo­ca­tion from a sub­jec­tive to an ob­jec­tive test.

The de­fence of provo­ca­tion is based in com­mon law, mean­ing it is not de­fined in the statute book. Crit­ics ar­gue ei­ther the Supreme Court or the Oireach­tas should lay out a new def­i­ni­tion.

Other sug­ges­tions in­clude copy­ing the US sys­tem and re­plac­ing the bi­nary mur­der or man­slaugh­ter op­tion with “grad­u­ated” charges, such as first de­gree mur­der or sec­ond de­gree mur­der, to take ac­count of vary­ing lev­els of in­tent.

In 2015, Supreme Court judge Mr Jus­tice Donal O’Don­nell said it was “dispir­it­ing” there has been no leg­isla­tive re­sponse to the is­sue. He said it “may not be suf­fi­ciently ap­pre­ci­ated just how sig­nif­i­cant these dif­fi­cul­ties are”.

‘ ‘ This is dif­fer­ent to a self-de­fence claim. You’re not say­ing you were un­der at­tack, you’re say­ing you were pro­voked into a sit­u­a­tion

The provo­ca­tion de­fence was used in the case of Kerry farmer Michael Fer­ris who ar­gued he was pro­voked into killing An­thony O’Mahony

PHO­TO­GRAPH: COLLINS

Left: brother of the late An­thony O’Mahony, Sea­mus (cen­tre) leaves court in Dublin af­ter Michael Fer­ris above was sen­tenced to five years.

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