Dispiriting lack of legislation on provocation defence

A Supreme Court judge has said it is “dispiriting”, despite difficulties with the defence of provocation in Irish law being identified several times over at least 15 years, there has been no “legislative response”.

It “may not be sufficiently appreciated just how significant these difficulties are”, Mr Justice Donal O’Donnell said. His remarks about the defence of provocation generally were made in a Court of Criminal Appeal judgment quashing the conviction of a Limerick man for the murder of his partner at their home in Craughwell, Co Galway, in July 2005.

A retrial was ordered in the case of Kieran Lynch, aged 50, of Francis St, Askeaton, Co Limerick.

Mr Lynch was convicted in 2007of the murder of his partner Catherine (Katie) McEnery, aged 35, Feenagh, Kilmeady, Co Limerick, at Rose Cottage, Derryhoyle Mór, Craughwell, between July 16 and 17, 2005. He denied murder and advanced a defence of provocation.

The Court of Criminal Appeal yesterday granted Mr Lynch’s appeal against conviction after finding the trial judge’s response to questions from the jury concerning provocation, while “entirely well meant”, was “misconceived and confusing”.

Giollaíosa Ó Lideadha, for Mr Lynch, said considerable time had passed and suggested the court defer a decision on a retrial to allow his side raise issues with the DPP in that regard. Counsel for the DPP said she was instructed to seek a retrial.

Mr Justice O’Donnell said the court’s decision on a retrial stood and any matters arising were for the parties.

Mr Justice O’Donnell said difficulties with Irish law on provocation were identified by the Law Reform Commission, among others, over at least 15 years. The difficulties arose because the mandatory life sentence for murder means accused persons have little incentive to plead guilty, he said.

The mandatory sentence gives rise to defences, such as excessive force, self-defence, and provocation, which can reduce murder to manslaughter.

A provocation defence can be raised with little more than a statement about loss of control and involves the prosecution having to prove, beyond reasonable doubt, that the accused was not acting under provocation.