Define self-defence. What laws govern it?
Self-defence is the lawful use of force to protect oneself, another person or property, or to prevent the commission of a crime.
The lawful use of fatal force is governed by common law.
The lawful use of non-fatal force is governed by the NFOAP 1997.
What sections of the 1997 Act govern the lawful use of non-fatal force?
Sections 18 to 20.
S18 covers the use of force for certain specified purposes.
S20 covers the use of force to effect or assist a lawful arrest.
Define the defence of provocation, and state when this defence can be used.
Provocation can be defined as acts and/or words that cause a person to lose self-control. As famously noted by Charleton, it is "a concession to human frailty".
Provocation is a limited defence; it can arise only where murder is the charge and cannot result in an acquittal. It may however reduce a murder charge to a manslaughter charge. [What type of manslaughter; any?] This is because in crimes that don't result in death, provocation doesn't affect the nature of the crime, unlike in a homicide, as explained by Lord Diplock in R v Camplin (1978).
Ireland has been unique among common-law countries in allowing this defence to reduce a murder charge to manslaughter if the accused can prove they were subjectively provoked into killing. The defence is used in 25 per cent of murder trials in Ireland, and while it is rarely successful at trial stage, it is often successful when it comes to having convictions overturned or retrials ordered.
Per DPP v MacEoin (1978), one of the seminal cases on provocation in Ireland: "Provocation can never reduce a wrongful killing to anything except manslaughter; it can never justify an acquittal."
Provocation may be taken into consideration in determining an appropriate penalty, per Lord Diplock in R v Camplin.
Does it need to be the victim who provoked the accused?
No, it need not be the victim. If I am provoked by one person but kill another, I can still invoke provocation as a defence.
Can provocation be cumulative? Name a case that sheds light on this question.
Yes; an accused may have been subjected to regular provocation over a period of time. This is particularly relevant in cases where a woman has been subjected to domestic violence by a partner over a period of time. In the case of R v Thornton (1992), in which the accused killed her abusive, violent husband, the Court of Appeal held that the trial judge had correctly directed the jury to consider "the whole picture" in deciding whether or not the appellant had been provoked. (Note: in this case there was no 'sudden' loss of self-control, and so her murder conviction was ultimately upheld.)
In The People v O'Donohoe (1993), O'Donohue had been physically and verbally abused by her husband for years and had a barring order against him. However, she allowed him to return home because she felt sorry for him. There, he verbally abused her again, and she snapped and killed him with a hammer. She was convicted of manslaughter and received a suspended sentence.
Name two seminal cases on provocation in Ireland, including a very recent one.
DPP v MacEoin (1978) and R v McNamara (2020).
Describe the case of DPP v MacEoin (1978) and why it was significant.
In DPP v MacEoin (1978), the Court of Criminal Appeal established a test for provocation, representing a significant departure from the common law. Until then, the courts had focused objectively on standards of conduct that could be reasonably expected from the average person in the face of provocation. The authority for this previous test was R v Duffy (1949).
In MacEoin, the applicant, Sean MacEoin, lived with the deceased, Patrick Hyland. They had become friends in prison. Hyland was a heavy drinker, who spoke loudly to himself and became aggressive when drunk. One evening, MacEoin returned home after visiting several pubs and drinking up to 20 pints of stout. Hyland was sitting at a table with a bottle of wine, talking to himself. MacEoin went to bed, but shortly afterwards Hyland attacked him with a hammer. The hammer fell to the ground, and a struggle ensued. MacEoin managed to retrieve the hammer, and he killed Hyland with it. He was charged with murder and testified that he had simmered over and completely lost control of himself. He was convicted of murder.
The Court of Criminal Appeal rejected the traditional objective test as "profoundly illogical" in that it required a defendant to be judged according to a standard that would not necessarily bear any relationship to his own temperament and knowledge. The court posed a new, two-step approaching the defence of provocation. (See next slide.)
What was the two-step test for provocation established by DPP v MacEoin (1978)?
The test was as follows:
1) Was the accused person provoked to such an extent that he lost self-control at the time of committing the offence?
In answering this question the jury is to have regard to the accused's temperament, character and circumstances. The question was not whether a reasonable man would have lost self-control (although that may be a relevant consideration in taking into account the overall credibility of the accused).
The defence was not available, it was held, where the defendant was short-tempered, easily provoked or intoxicated. [Doesn't that make it more of an objective test?]
2) Was the force used proportionate to the provocation found by the jury to have existed?
The prosecution must prove beyond a reasonable doubt that the force used was unreasonable and excessive having regard to the provocation. This question, prima facie, imports objectivity into the test, which caused confusion considering that the court stated that the objective test was 'illogical' and should be 'declared to be no longer part of our law'. However, the Court of Criminal Appeal explained in The People (DPP) v Mullane (1997) that this second question essentially relates to credibility: just because an accused says he was provoked and lost control, the jury need not necessarily accept that, and this second question will help determine credibility. If the reaction seems disproportionate, this will help establish whether he was truly provoked.
Name a case in which DPP v MacEoin (1978) was upheld.
MacEoin was upheld in The People (DPP) v Kelly (2000).
As well as upholding DPP v MacEoin, what did The People (DPP) v Kelly (2000) determine?
The People (DPP) v Kelly determined that the reaction to acts of provocation must sudden. It cannot be "tinged by calculation" and must come before there has been "time for passion to cool". The longer the delay between the provocation and the reaction, the more difficult it will be to successfully raise the defence, as the accused may have been able to regain self-control in the intervening period. Note: a reaction can still be 'sudden' without being immediate.
It was also held that self-induced provocation is not a defence.
In what type of case is the issue of delayed reaction particularly relevant when it comes to provocation? Give an example of such a case.
Delayed reaction is particularly relevant when it comes to cases involving battered women who kill their husbands. Very often they don't react to such provocation immediately after the provoking act, though they may still do so suddenly.
An example of such a case is R v Ahluwalia (1992). The appellant killed her husband after experiencing many years of violence in an arranged marriage. Her husband taunted her about an affair he was having and and threatened to kill her. One evening, he threatened to beat her the next morning. Later, while he was asleep, the wife threw petrol in the bedroom and ignited it. She was convicted of murder and appealed, arguing that a woman who has been subjected frequently over a period of time to violence at the hands of her husband may react to the final act of provocation in a "slow burn" manner.
The Court of Appeal held that it is up to the jury to decide, based on the evidence, whether the reaction was a case of 'slow burn' provocation or based on a motive inconsistent with loss of self-control, and therefore not a case of provocation.
The DPP v Kelly (2000) held that self-induced provocation was not a defence. Describe a case where self-induced provocation arose for consideration.
Self-induced provocation arose for consideration in R v Edwards (1973). Edwards had been blackmailing a man, who then attacked him with a knife. Edwards raised the defence of provocation. Lord Pearson stated that a blackmailer could not reasonably rely on the predictable results of his own blackmail as provocation; however, in this case the reaction of the blackmailer was so extreme a jury could find that it was not predictable and therefore sufficient for provocation to arise.
Why was the subjective approach taken in DPP v MacEoin (1978) criticised?
The subjective test in DPP v MacEoin (1978) was criticised for a few reasons.
Author Conor Hanly noted the "apparent removal of any requirement of self-control on the defendant's part".
In The People (DPP) v Davis (2001), Hardiman J noted that policy considerations might in the future require limitations to be placed on the availability of the defence, to account for factors that were perhaps not as common during the time of MacEoin (1978), for example, road rage.
Authors McAuley and McCutcheon, in Criminal Liability (2000), note that as an unforeseen consequence of the test, it could serve to accommodate morally repugnant views. They gave the example of a defendant who holds white supremacist beliefs and genuinely believes that it is the gravest insult for a black person to speak to a white person unless spoken to first. On being spoken to by a black person, he becomes enraged and kills in the throes of a bigoted passion. Tested subjectively, he has been provoked, but there is no reason the law's compassion should be extended to him.
The Court of Criminal Appeal made the same point in The People (DPP) v Curran (2011), saying the test was liable to indulge "conduct that should deserve censure rather than excuse".
Another criticism is that it is virtually impossible for the prosecution to rebut evidence of provocation once the plea has been raised, if the defence only has to show that the accused was actually provoked.
The test for provocation recently changed in Ireland. Name a case in the last 10 years that upheld the previous test from MacEoin, and name the case that established the new test.
The subjective test established in MacEoin was upheld as recently as 2014 in The People (DPP) v Hussain. The test changed by virtue of The People (DPP) v McNamara (2020).
Describe the facts in the case of The People (DPP) v McNamara (2020).
The accused was a member of a motorcycle club. One evening, on leaving a pub, he and his wife were accosted by members of a rival motorcycle club, with whom his club was engaged in a turf dispute. The rival club members forcefully stole the accused’s jacket, bearing his club’s insignia and flag. This was perceived by the accused as a ‘gross insult’ to him and the club, including its president. Later that night there was a drive-by incident at the accused's house, where three members of the rival club made threats to kill him.
The next day, the accused drove to the rival club’s clubhouse, having been told one of his attackers was there. He was armed with a sawn-off shotgun and claimed he was in a state of fear and distress as a result of the events of the previous day. Once there, he shot at close range one of the members of the rival club, killing him. It was not one of the people who had attacked him the previous day. At his trial for murder, the accused sought to rely on the defence of provocation (among others).
Describe the new test for provocation outlined in The People (DPP) v McNamara (2020).
The court held in McNamara, in a unanimous judgment delivered by Charleton J, that an individual must exercise ordinary restraint, such as would be applied by an ordinary person of the same age, sex, state of health and general intelligence of the accused.
Charleton J said that it would be contrary to any proper analysis of the level of provocation in this case to consider that any such person in this context "could lose self-control to the degree of shooting someone in the face with a sawn-off shotgun".
He said a trial judge is to filter claims of provocation so that only those with an "air of reality" are allowed to go to jury.
There must be a sudden loss of self-control, not planned or considered. It must also be total, as distinct from losing one’s temper.
There must be a complete, overwhelming loss of ordinary self-restraint in the face of what was said or done to provoke the accused, such that the accused could not help intending to inflict death or injury and could not stop himself from doing so.
The loss of self-control cannot be attributable to intoxication; the accused’s actions must be considered as though he or she was not intoxicated at the time.
The loss of self-control must be in response to a genuinely serious provocation, not a mere insult by the victim. The provocative act by action or gross insult must be entirely outside the bounds of any ordinary interaction acceptable in society.
The defence does not apply to warped notions of honour; to any unacceptable ideas about the proper romantic or sexual conduct of males or females; to hurt to male pride; or to gang vengeance.
Nor does it apply in situations where an ordinary individual sharing the same fixed characteristics as the accused (eg age, sex, ethnicity, pregnancy, mental infirmity, state of health) would be able to exercise self-restraint in the same background circumstances.
The case therefore replaces what was considered to be a purely subjective test with a mixed subjective/objective test.
Describe another recent case, but in which the claim of provocation had the "air of reality" as required by Charleton J in The People (DPP) v McNamara (2020).
In DPP v Almasi (2016), Zoltan Almasi was convicted of the murder of Joseph Dunne, 20.
Dunne had been out with his friends and thumped a van parked on the road while walking. The van belonged to Almasi, who chased him with a baseball bat and hit him once on the side of the head.
Recently overturning Almasi's murder conviction and ordering a retrial, Charleton J said that there was an "air of reality" about a provocation defence in this case, the assessment of which was a matter for the jury.
What recommendations has the Law Reform Commission made regarding provocation?
- In its 2009 Report on Defences in Criminal Law, the LRC recommended that there should be a withdrawal of the purely subjective test dominant in Ireland and the introduction of a defence remodelled on objective lines. The new test established in McNamara aligns with this goal in that it includes objective elements.
- It also recommended that insulting words and gestures that are unacceptable by the ordinary standards of the community should be capable of amounting to provocation. This approach was echoed in McNamara, where Charleton J noted that "trivial insults" were out, but a "gross insult" would suffice if "outside the bounds of any ordinary interaction acceptable in our society".
- It said the accused's state of intoxication should not be taken into account; this was also echoed in McNamara, where Charleton J said that the accused should be judged as though they were sober.
- It also recommended that there not be any express provision requiring proportionality between the response of the accused and the provocative conduct.
Describe the development of the law on provocation in England.
In England, provocation was defined in R v Duffy (1949)
in the following terms:
"Provocation is some act, or series of act, done by the dead man to the accused, which would cause in any reasonable person
, and actually causes in the accused, a sudden and temporary loss of self-control
, rendering the accused so subject to passion as to make or or her for the moment not master of his mind
A strict application of this objective element could lead to harsh results, as in Bedder v DPP (1954)
. Bedder was convicted of the murder of a prostitute who had taunted him about his impotence. He argued that he lost self-control as a result. However, the House of Lords held that has the reasonable man is not impotent, this did not satisfy the defence of provocation.
A few years later, the defence of provocation was set out in s3
of the Homicide Act 1957.
Under this section, the jury should still consider the reasonable man, but in a long series of decisions, beginning with R v Camplin (1978), the courts in Britain attempted to inject a degree of subjectivity into the objective standard against which a defendant would be measured.
Lord Diplock explained in R v Camplin (1978)
that the effect of the new statute was that "it would now be unreal to tell a jury that the notional 'reasonable man' was someone without the characteristics of the accused".
In this case, Camplin, at 15, had killed a man who buggered and then laughed at him. He raised the defence of provocation but was convicted of murder. Lord Diplock said the the jury should consider the 'reasonable man' as an ordinary person the same age and sex as the accused, "but in other respects sharing such of the accused's characteristics as… would affect the gravity of the provocation to him".
In R v Newall (1980)
, the accused was an alcoholic who killed a man who had made derogatory remarks about Newall's ex-girlfriend. It was held that for the purposes of the test for provocation, the reasonable man not be considered to be an alcoholic, as Newall's alcoholism was not related to the provocation in question.
Provocation per the Homicide Act 1957 was abolished by s56(1) of the Coroners and Justice Act 2009
, and replaced in said Act by the defence of loss of control set out in s54 and s55
The new defence has three elements:
- a) The defendant killed the deceased due to his loss of self-control;
- b) The loss of self-control had a qualifying trigger;
- c) A person of the defendant's age and gender with normal tolerance and self-restraint, and in the same circumstances as the defendant, might have reacted in the same or a similar manner as the defendant.
Name a case that defines the defence of 'duress', and quote the definition.
Duress is defined in People (AG) v Whelan (1934). In his judgment, Murnaghan J said: "Threats of immediate death or serious personal violence so great as to overbear the ordinary power of human resistance should be accepted as justification for acts which would otherwise be criminal."
Does the defence of duress extend to threats of serious violence against property or reputation?
No – the threat invoked must be one of death or serious violence directed towards a person. The threat must also be directed not just at any person but at the defendant, a member of his family, or a person to whose safety he would reasonably regard himself as responsible, as suggested by R v Conway (1989) and R v Wright (2000), although the LRC in its 2009 Defences Report recommended that there be no limitation in terms of the target of the threat.
Is duress available as a defence for murder? Why/why not?
Duress is not available as a defence for murder. It cannot be used even to reduce a murder charge to manslaughter. Per Murnaghan J in People (AG) v Whelan (1934), "The commission of murder is a crime so heinous that murder should not be committed even for the price of life, and in such a case the strongest duress would not be any justification."
Attempted murder does fall within the scope of the defence in Ireland.
Name a more recent case than Whelan (1934) where it was confirmed that duress cannot be raised as a defence to murder.
The Supreme Court confirmed that duress cannot be raised as a defence to murder in Jonathan Dunne v DPP (2016). The court said that a change to the common-law exclusion of murder from the defence of duress would be so fundamental that it could only be introduced by way of legislation.
What happens if an accused raises the defence of duress?
If an accused raises the defence of duress, the prosecution must disprove it beyond a reasonable doubt, or the accused is entitled to an acquittal.
What must be shown where the defence of duress is applicable?
Per Murnaghan J in People (AG) v Whelan (1934), it must be clearly shown that "the overpowering of the will was operative at the time the crime was actually committed, and, if there were reasonable opportunity for the will to reassert itself, no justification can be found in antecedent threats".
In R v Hudson and Taylor (1971), Lord Widgery CJ noted that a person is obliged to avail himself of any opportunity reasonably open to him in order to render the threat ineffective. In deciding whether such an opportunity was reasonably open to him, he said, the jury should have regard to his age and circumstances, and to any risks that may be involved in the course of action relied upon.
What are the two types of duress, as distinguished by English law? What is the difference between them?
The two types of duress are duress by threat and duress by circumstance. The former is when there is a specific instruction from another party to commit a particular crime; the latter is when there is no such specific instruction, but the accused commits a crime because, as Smith and Hogan articulate in their book Criminal Law (2008), "his life is threatened and his only way of escape is to do the act, which, but for the duress, would be a crime". [NOTE: how is duress by circumstances different from necessity?]
How are the two types of duress treated in Ireland?
Irish law has not judicially recognised the two types of duress, but both have legislative recognition in s18(3) of the Non-Fatal Offences Against the Person Act, 1997. The concept of duress by circumstances has developed by analogy to duress by threat, so if the issue were to arise, there would be a ready-made set of principles to govern it (as pointed out by Smith and Hogan in Criminal Law (2008)).
In People (AG) v Whelan (1834), Murnaghan J said duress constituted a threat of "immediate death or serious personal violence so great as to overbear the ordinary power of human resistance". How can we understand the word 'immediate'?
The more imminent the threat was, the more likely it was operative at the time the crime was committed. The more remote a threat was, the more likely there was a reasonable opportunity for the will to reassert itself, in which case, as Murnaghan J noted in Whelan, there could be "no justification found in antecedent threats".
Note: in its 2009 report on defences, the Law Reform Commission preferred an 'imminent' rather than an 'immediate' test.
Name and quote a case that speaks to the concept of immediacy in the context of duress.
In R v Hudson and Taylor (1971), Hudson and Taylor were convicted of perjury and invoked duress as a defence. They claimed that before the trial in which they testified, a man had threatened to cut them up if they gave evidence against the accused. This man was in the courtroom when they were testifying. The question arose as to whether the threat was of such immediacy as to overbear the will of the appellants when they were giving their testimony.
Lord Widgery CJ viewed the threats as no less compelling just because they couldn't be executed in the courtroom if they could be executed later that night. He held that: "A threat of future violence may be so remote as to be insufficient to overpower the will at that moment when the offence was committed… When, however, there is no opportunity for delaying tactics, and the person threatened must make up his mind whether he is to commit the criminal act or not, the existence at that moment of a threat sufficient to destroy his will ought to provide him with a defence even thought the threatened injury may not follow instantly, but after an interval."
Lord Widgery's approach was criticised in R v Hasan (2005) as 'indulgent'.
How did the approach to 'immediacy' differ in R v Hasan (2005) v R v Hudson and Taylor (1971)?
In R v Hasan (2005),
Describe the test for duress.
Until 2016, the test for duress was objective: would the reasonable man have reacted in the same manner as the accused? This is known as 'reasonable firmness' or 'reasonable fortitude'. Therefore it could prevent a person with less than average courage from successfully invoking the defence.
However, a 2016 case in Ireland represented a shift: in DPP v Gleeson (2016), Mahon J commented that the appropriate test was "neither entirely subjective nor entirely objective… it needs to take into account the particular circumstances of the person seeking to invoke the defence".
Whether this move will withstand further analysis by the Supreme Court remains to be seen.
With reference to a particular judgment, describe the (seven) limitations of the defence of duress.
- The limitations of the defence of duress were set out by Lord Bingham in R v Hasan (2005), a case in which the defendant claimed he was compelled to participate in an aggravated burglary. They include:
- 1) that it is not a defence for murder
- 2) the threat must be one of death or serious injury to a person
- 3) it must be directed against the defendant or his immediate family, or someone close to him (note: the LRC recommended in its 2009 Report on Defences that there be no limitation in terms of the target of the threat)
- 4) the test is objective, with reference to how a reasonable person would have reacted (note: this was overturned in DPP v Gleeson (2016))
- 5) it is available only where the crime was directly caused by the threat
- 6) the defence can be relied on only if the defendant didn't take any reasonable evasive action available to him
- 7) the defendant may not rely on duress to which he has voluntarily laid himself open, ie self-induced duress is not a defence; this is of particular significance in the context of organised crime/terrorist activity
Describe a case where the defence of duress failed because the duress was self-induced.
The defence of duress failed in the case of R v Fitzpatrick (1977), in which an IRA member was charged with crimes including robbery and membership of a criminal organisation. He argued that he attempted to leave the organisation but was threatened with death or serious violence in the event that he did. The Court of Criminal Appeal rejected this defence as it considered the duress self-induced.
What is the presumption of marital coercion?
Marital coercion refers to the now defunct presumption in common law that if a woman committed a crime in the presence of her husband, she did so under his duress. In The State (DPP) v Walsh and Coneelly (1981), this presumption was found not to have survived the enactment of the Constitution in 1937.
What proposals has the Law Reform Commission made on the defence of duress?
In its 2009 Report on Defences, the LRC preferred an 'imminent' rather than an 'immediate' test. It favoured the approach in Hudson v Taylor to that of Hasan in terms of whether an accused can rely on the defence.
It also took the view that there should be no restriction in the availability of the defence in relation to the target of the threats.
It recommended that the presumption of marital coercion should be formally abolished by statute.
Define the defence of necessity.
The defence of necessity is available where circumstances existed that made it necessary for the accused to commit an offence. Where the defence of necessity is raised, it must be refuted by the prosecution beyond all reasonable doubt.