The Merits of Ambiguity: Provocation from the Irish Perspective

Abstract

The old common law defence of provocation has been abolished in many jurisdictions, including England and Wales and Northern Ireland, but it is still part of the law south of the Irish border. Up to now the Irish law of provocation has been built up solely by the courts, and has developed a number of peculiarities, not least the apparent rejection of the objective test by the Court of Criminal Appeal in the 1978 case of MacEoin. However, it is not until recently that the defence has come to the attention to the Supreme Court, in the 2020 case of McNamara. In this case the court set out to clarify the law, but the case has been criticised by commentators for its failure to clear up some of the existing ambiguities; indeed, it has been said that it has even introduced further ambiguities into the law that did not exist before. Be that as it may, this paper argues that McNamara is to be welcomed, in so far as it promotes a flexible approach and one which recognises the essentially normative nature of the provocation defence.