The Law Reform Commission is an independent statutory body established bythe Law Reform Commission Act 1975. The Commission‟s principal role is tokeep the law under review and to make proposals for reform, in particular byrecommending the enactment of legislation to clarify and modernise the law.Since it was established, the Commission has published over 150 documents(Consultation Papers and Reports) containing proposals for law reform andthese are all available at www.lawreform.ie. Most of these proposals have led toreforming legislation.The Commission‟s role is carried out primarily under a Programme of LawReform. Its Third Programme of Law Reform 2008-2014 was prepared by theCommission following broad consultation and discussion. In accordance withthe 1975 Act, it was approved by the Government in December 2007 andplaced before both Houses of the Oireachtas. The Commission also works onspecific matters referred to it by the Attorney General under the 1975 Act. Since2006, the Commission‟s role includes two other areas of activity, Statute LawRestatement and the Legislation Directory.Statute Law Restatement involves the administrative consolidation of allamendments to an Act into a single text, making legislation more accessible.Under the Statute Law (Restatement) Act 2002, where this text is certified bythe Attorney General it can be relied on as evidence of the law in question. TheLegislation Directory - previously called the Chronological Tables of the Statutes- is a searchable annotated guide to legislative changes. After the Commissiontook over responsibility for this important resource, it decided to change thename to Legislation Directory to indicate its function more clearly.
B Historical Overview 4.03 Since its emergence in medieval times, provocation has proved to be a contentious defence. A 2007 Report by the New Zealand Law Reform Commission noted that the defence of provocation is mired in legal, conceptual 107 and practical difficulties.1 Some jurisdictions have recently abolished the defence and others have recommended its abolition on the basis that the defence is irretrievably flawed.2 In order to assess these proposals, the Commission briefly examines the history of the defence,3 in particular to determine whether it can stand up to such criticism.
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4.04 Provocation is not a new concept in law; its roots lie as far back as Anglo-Saxon and Norman times. From the medieval period, it is bound up with the 16th century division of felonious homicide into murder and manslaughter.4 The avoidance of the death penalty provided the genesis for the provocation plea while the benefit-of-clergy exemption provided the catalyst. In medieval times defendants could escape the death penalty for an unlawful killing by demonstrating their status as a member of the clergy.5 As one might expect, the clergy exemption was widely abused by defendants who successfully convinced the court that they were members of the clergy. Due to this abuse, the benefit was removed by statute in 1512 and no longer provided a defence to homicides carried out with malice aforethought.6
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4.05 During the 17th century, provocation took on a more recognisable form. Murder was presumed to proceed from malice aforethought, which was seen to be lacking in cases of provoked killings. In the 18th century, the use of provocation increased and the rules on its application became clearer.7 In R v Mawgridge,8 Holt LCJ set out four categories of provocation which operated to reduce murder to manslaughter including a grossly insulting assault, seeing a friend attacked, seeing an Englishman unlawfully deprived of liberty and catching someone in the act of adultery with ones wife. This focus on the 1 New Zealand Law Commission The Partial Defence of Provocation (NZLC R98, Wellington, 2007) at 11. 2 New Zealand Law Commission The Partial Defence of Provocation (NZLC R98, Wellington, 2007) at 10. 3 For a detailed account on the history of provocation see LRC CP 27-2003 at 3-19; and Horder Provocation and Responsibility (Clarendon Press 1992). 4
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Horder Provocation and Responsibility (Clarendon Press Oxford 1992) at viii. 5 McAuley and McCutcheon Criminal Liability (Round Hall Sweet & Maxwell 2000) at 853. See also Horder Provocation and Responsibility (Clarendon Press 1992). 6 At premeditated killing. See LRC CP 27-2003, at 4. that time malice aforethought or malice prepensed simply meant 7 Australian Model Criminal Code Officers Committee Discussion Paper on Fatal Offences Against the Person (1998) at 73. 8
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