Incitement to hatred - the Murder of Traveller John Ward

The acquittal of Pádraig Nally, the Mayo farmer, for the murder of the Traveller, John Ward, and his conviction for manslaughter raises again legal doubts about the law on provocation.

When Pádraig Nally found John Ward he identified him as a Traveller and as someone who had come by the house previously in suspicious circumstances. Nally had been obsessed for some time about being burgled. That was the extent of the provocation. He was not attacked by John Ward, not threatened by John Ward, he had not seen John Ward commit any criminal act. The sole "provocation" was finding John Ward on his premises.

This, according to himself, occasioned him to lose control. He went and got his shot gun and discharged a shot at John Ward hitting him in the hip and arm. He then beat John Ward with a heavy piece of timber. According to the State Pathologist, Marie Cassidy, ten severe blows had been struck to the head of John Ward, some of them opening wounds on his head right through to his skull. He said in court: "It was like hitting a stone or a badger. You could hit him but you could not kill him".

He then got further shotgun cartridges, followed Ward down a lane and, standing over Ward, who was down in a crouched position, shot him in the head, killing him.

Because of "provocation" Nally was acquitted of murder but convicted of manslaughter.

There has been a lot of legal controversy about provocation being a defence to murder. It used to be the case that the jury was invited in such cases to think of what a reasonable person would do if subjected to the provocation in question, would their judgment and self restraint be so overwhelmed suddenly and completely.

That changed however here in a famous 1978 case, DPP v MacEoin. In that case the court found that the appropriate test was a subjective one: not whether a reasonable person would have acted as the accused did under the provocation in question but whether it was plausible that the accused person, given his personality, character and temperament would have acted as he did because of the provocation that had arisen. But in that case the judge said that the jury would also have to take into account the issue of proportionality, whether the response to the provocation was reasonable.

This was later "clarified" in a further case so that the law now seems to be entirely a subjective one: "whether the accused person was provoked into acting as he did, given his/her character, temperament and personality". The issue of proportionality arises only as a mater of credibility – if the scale of the response is such as to be entirely disproportionate to the alleged provocation, then a jury might doubt that the provocation caused the accused to act as he/she did.

But this Nally case suggests that the subjective test is unreasonable, in circumstances where there may be prejudice as a particular community, such as the Traveller community.

Can it be the law in this State now that the courts accept as a defence to murder a plea of provocation based solely on finding a Traveller on one's premises, especially in the case of a killing so ferocious and staged. It was not simply a sudden burst of anger but one sustained over several minutes, enough to get his gun, fire a shot, then ferociously beat the victim, then go to a shed to get further cartridges, then to follow the victim down a laneway and fire into the victim's head at close range, while the victim was in a crouched position.

Is it fair that such an issue would be left to a jury drawn from the accused's own community, some of whole members may have been infected with the prejudice against Travellers and thereby prone to accepting that such a vicious killing arose solely from the "provocation" of finding a Traveller on one's premises?