Change law to protect domestic violence victims, says commission

THE Law Reform Commission is to recommend sweeping changes to criminal law allowing victims of ongoing domestic violence plea provocation as a partial defence to murder.

But the commission is also recommending restricting the defence, which can reduce a conviction to manslaughter, in other ways.

In a consultation paper published today, the commission recognises that the law poses hardship for those forced to endure domestic violence.

In a statement, the commission said it was recommending a more flexible approach to the traditional common law requirement of immediacy that a killing must immediately follow the provocation.

"It is accepted that the current rule may present difficulties for an accused whose response to provocative conduct was delayed, such as sometimes occurs in a violent domestic relationship.

"Accordingly, the commission recommends the dilution of the immediacy requirement to accommodate cases of this kind."

The recommendation was broadly welcomed last night by Victim Support. "It is what most reasonable people would expect," said spokesperson Ann Meade. "Studies show that victims of domestic violence endure, on average, 36 incidents of violence before even reporting the matter to the police."

While relaxing the rule for victims of domestic violence, the commission also proposes limiting the defence of provocation to an objective evaluation of the conduct of an accused person. It feels that Irish case law has strayed too far from the common law position.

"In the last 25 years the plea has been reduced to the purely factual or subjective question of whether the accused lost control.

This approach, heralded by the Court of Criminal Appeal in 1978, represents a significant departure from the common law, which had focused on standards of conduct that could fairly be expected of accused persons, in response to untoward provocative behaviour."

The commission added that, as a result, it was now "virtually impossible" for the prosecution to rebut evidence of provocation once the plea has been raised.

The commission conducted an analysis of the law in other jurisdictions, and concluded that "Ireland is alone in the common law world, in having saddled itself with this dispensation".

The commission is recommending the accused is judged by ordinary community standards of self-control and proportionality.

It believes the courts should be able to take account of a defendant's personal characteristics, and that an accused's history of being sexually abused might be relevant, if the provocation in question was a sexual advance by the deceased.