Defences Specific to Murder Flashcards

Question

DPP v Kelly

Answer 1

If the accused’s reaction appears strange, odd, or disproportionate, the jury can consider this in assessing the credibility of the provocation claim. Reaction must be sudden and uncalculated—there can be no delay that allows passion to cool. Longer delays weaken the defence as the accused may have regained self-control.

Answer 2

McEoin focuses on sudden loss of control Means that defence not available where the accused had time to cool down and reflect on situation

Answer 3

R v Duffy R v Thornton R v Ahluwaila

Answer 4

Facts: The accused killed another person after circumstances that caused anger or resentment. The accused had time to reflect and consciously formulated a desire for revenge. Holding / Legal Principle: A conscious desire for revenge negates the defence of provocation. Provocation requires a sudden and temporary loss of self-control. The defence cannot apply where the accused had time to cool off or deliberate.

Answer 5

Facts: The accused was subjected to regular provocation over a period of time rather than a single incident. There was a delay between the provocation and the accused’s reaction. Holding / Legal Principle: Provocation can be cumulative; a series of provocations may be considered together. A delay does not automatically negate the defence. The jury must consider the “whole picture” to decide whether the accused had been provoked sufficiently to lose self-control.

Answer 6

Facts: The appellant was an Asian woman in an arranged marriage, subjected to years of domestic violence by her husband. The husband had threatened to kill her and taunted her about an extra-marital affair. One night, after he threatened to beat her the next morning, she set fire to the bedroom while he was asleep, killing him. She was convicted of murder. Holding / Legal Principle: Cumulative or “slow-burn” provocation is recognised: provocation can build up over time rather than be a single, sudden act. Delay between provocation and reaction does not automatically negate the defence. Jury may consider whether the delay indicates loss of self-control or shows planning/revenge inconsistent with provocation. Subjective element matters: what counts is whether the defendant experienced a sudden and temporary loss of self-control at the time of the act.

Answer 7

DPP v Kelly R v Edwards

Answer 8

Holding / Legal Principle: A person cannot rely on self-induced provocation as a defence. The reaction must be genuine: the accused must not have deliberately set up the circumstances they later claim provoked them.

Answer 9

Facts: The appellant had been blackmailing the victim. The victim attacked the appellant with a knife. The appellant claimed provocation to reduce the charge from murder to manslaughter. Holding / Legal Principle: Self-induced provocation (provocation arising from the accused’s own wrongful conduct) generally cannot be relied upon to reduce liability. However, if the victim’s reaction is extreme, it may constitute sufficient provocation, and it becomes a question of degree for the jury to decide.

Answer 10

DPP v Cahoon DPP v McNamara

Answer 11

Facts: The Court of Appeal considered the legal principles surrounding provocation in cases of murder. The appellant emphasized the relationship between murderous intent and the defence of provocation. Holding / Legal Principle: Provocation and intention to kill are distinct concepts: A person may have the requisite intent to kill but still successfully raise provocation. Provocation does not prevent the formation of murderous intent. Provocation consists of a sudden, temporary, and complete loss of self-control, where the person is not “master of his mind.” If intent to kill is absent, the case is manslaughter, not murder. Provocation arises only in cases where the act would otherwise amount to murder.

Answer 12

General rule: Use of force (fatal or non-fatal) is generally unlawful. Exceptions: Force may be lawful if used to: Defend oneself Defend another person Protect property Prevent a crime Fatal vs non-fatal force: Fatal force: Lawfulness determined by common law. Non-fatal force: Governed by ss. 18–20 Non-Fatal Offences Against the Person Act 1997. Complete defence: A successful plea of reasonable defensive force can fully absolve liability. Exception – excessive lethal force: If the force used is objectively excessive, self-defence cannot fully negate liability. Excessive force may reduce murder to manslaughter, but not provide complete immunity. Key considerations: Was the force necessary in the circumstances? Was the force proportionate or reasonable? What counts as “reasonably necessary” depends on the specific facts and context of each case.

Answer 13

Ag v Keatley Ag v Dwyer DPP v Nally AG v Commane DPP v Barnes

Answer 14

Retain provocation as a partial defence to murder, subject to specified conditions. Recast provocation as a defence of partial excuse, not full justification. Move away from purely subjective test currently dominant in Ireland. Remodel defence on objective lines. Jury considerations: May take into account all characteristics of the defendant when assessing the gravity of provocation. When considering the level of self-control of an ordinary person, the factors considered should be limited.

Answer 15

Facts: The deceased was fighting with the applicant’s brother. The applicant intervened and struck the deceased, causing him to fall and sustain fatal injuries. The applicant was charged with manslaughter. Holding: The Court of Criminal Appeal held that the use of force is lawful only for necessary defence of self, others, or property. The prosecution must prove one of the following to secure a conviction: Force was unnecessary. Force used was more than necessary. Force was used in revenge, retaliation, or with intent to fight. Fatal force may be used to defend any person, not just someone with a special relationship. If force is excessive but used under an honest mistaken belief of necessity, the offence may be reduced to manslaughter, not murder.

Answer 16

Facts: The accused was involved in a brawl outside a chip shop. He claimed he was attacked from behind and saw his friend being kicked. In fear of being killed, he drew a knife and waved it around. Two people were fatally stabbed during the incident. The accused was convicted of murder. Issue: Whether using more force than necessary, but no more than the accused honestly believed was necessary in self-defence, constitutes manslaughter rather than murder. Holding: Fatal force is lawful if reasonably necessary for self-defence. Excessive force is unlawful, but if the accused honestly believed it was necessary, it reduces liability to manslaughter, not murder. Walsh J.: Manslaughter if the accused honestly believed the force used was necessary. Butler J.: Manslaughter if the primary intention was self-defence. This can be noted as a key authority on self-defence and excessive force.

Answer 17

The Court applied AG v Dwyer principles. Accused’s intention in using force is tested subjectively. If the primary intention was self-defence, the accused lacks the intent to kill or cause serious injury necessary for murder. The killing, while unlawful, is therefore reduced to manslaughter.

Answer 18

The accused did not honestly believe that the force used was necessary. After rendering his assailant unconscious, he strangled him, exceeding what was reasonably necessary. Conviction for murder affirmed, as jury could conclude excessive force was used.

Answer 19

A householder is not required to retreat from a burglar; retreat is merely a factor in assessing necessity/reasonableness of force. Burglary in a dwelling is inherently aggressive, giving the occupier the right to stand their ground. If a burglar is killed in self-defence, the burglar is not wholly blameless; the killing could result in manslaughter, not necessarily acquittal. Onus of proving self-defence may rest on the accused in such cases.

Answer 20

Minimum threshold for defensive force: Clear criteria needed; current “reasonableness” test is insufficient. No restriction on whom may be defended: Individuals can defend themselves or others; aligns with AG v Keatley. Lethal force limits: Only to repel threats of death, serious injury, rape/sexual assault, or forcible false imprisonment; not for protecting property. Proportionality rule retained: Force must be proportionate; courts/juries may consider the defendant’s reasonable perception of circumstances. Excessive lethal force: If honestly believed proportionate, murder may be reduced to manslaughter.

Answer 21

Nature of Defence: Partial defence to murder; reduces liability from murder to manslaughter. Comparable Defences: Operates similarly to provocation and excessive self-defence. Statutory Basis: Provided under s.6, Criminal Law (Insanity) Act 2006.

Answer 22

Nature of Defence: Partial defence to murder, reducing conviction to manslaughter. Statutory Basis: Section 6, Criminal Law (Insanity) Act 2006. Conditions for Defence (s.6): The accused committed the alleged act. The accused was suffering from a mental disorder at the time. The mental disorder would not justify a full insanity defence but substantially diminished responsibility for the act. Effect: If established, the court or jury finds the accused guilty of manslaughter on the grounds of diminished responsibility.

Answer 23

Lies on the accused to prove diminished responsibility (s.6(2)). The prosecution may adduce evidence to challenge the defence if the accused contends insanity or a mental disorder (s.5(4)). Definition of Mental Disorder (s.1): Includes mental illness, mental disability, dementia, or any disease of the mind, but excludes intoxication.

Answer 24

DPP v Tomkins

Answer 25

Substantial Impairment Required: The mental disorder must be more than trivial or minimal. Assessment is ultimately one of common sense, determined by the jury. Distinction from Provocation: Evidence of premeditation may negate provocation. Premeditation does not automatically preclude diminished responsibility, as the focus is on the accused’s mental state at the time of the killing. Implication: The defence targets impaired responsibility due to mental disorder, not merely reactive loss of control. Courts evaluate the severity of the mental disorder and its impact on culpability.

Answer 26

DPP v Heffernan

Answer 27

Burden of Proof: The accused must establish the defence on the balance of probabilities, not merely raise a reasonable doubt. The use of the word “establish” in s.6(2) of the Criminal Law (Insanity) Act 2006 indicates a defence burden similar to insanity. Scope of Defence: The defence does not require the accused to disprove any element of the prosecution’s case. Murder elements remain for the prosecution to prove beyond reasonable doubt. Effect of Evidence of Mental Disorder: Evidence of a qualifying mental disorder does not automatically rebut the presumption of sanity. It also does not negate the presumption that the accused intended the natural and probable consequences of their actions. Nature of Defence: s.6 of the 2006 Act provides a mitigatory defence, reducing murder to manslaughter if established. The defence focuses on the accused’s substantially diminished responsibility at the time of the act. Key Takeaway: Diminished responsibility is distinct from insanity, provocation, or other partial defences. The Court emphasized the legislative intent to limit the defence to proven mental impairment, preserving core elements of murder.

Defences Specific to Murder Flashcards

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