The defendant appealed his conviction for murder. His main defence had been that there had been no intention to kill, but the judge had refused to leave to the jury the possibility of provocation.
Held: There was evidence of potentially provoking conduct sufficient to be left to the jury, but that there was only a speculative possibility that the defendant may have lost his self-control. There was no evidence of a frenzied attack. The two defences were inconsistent, and the evidence of whether the defendant had been provoked was tenuous. Whether a defendant had been provoked should be treated on the same basis as whether the victim had caused provocation. The case of Rossiter had been overtaken by Acott.
Rose LJ VP said: ‘It is for the judge to decide if there is evidence of provoking conduct, a loss of self-control. If there is sufficient evidence it is a matter for the jury. If there is insufficient material to find as a reasonable rather than as any speculative possibility, that there was provoking conduct and loss of self-control, there is no issue that the judge should not leave provocation to the jury. The trial judge is in many cases better placed than this court to assess the quality and effect of the evidence which has been placed before the jury.’
Rose LJ, Leveson, Tugendhat JJ
Times 26-Nov-2003, Gazette 05-Feb-2004, [2003] EWCA Crim 3486
England and Wales
Citing:
Applied – Regina v Acott HL 12-Mar-1997
Provocation is not an issue in murder until evidence is given which takes the issues beyond a mere refuted cross examination. If there was ‘insufficient material for a jury to find that it is a reasonable possibility that there was specific . .
Cited – Regina v Rossiter CACD 1992
The defendant was charged with a murder. The very manner of the killing suggested that he was at the time of the killing in a state of uncontrolled frenzy. However, Russell LJ said: ‘We take the law to be that wherever there is material which is . .
Cited by:
Cited – Van Dongen and Another, Regina v CACD 5-Jul-2005
The defendant brothers appealed convictions for murder. They had pleaded self defence. The injuries on the deceased suggested a substantial number of wounds were inflicted when he was in a curled up defensive post.
Held: The provocation . .
Cited – Serrano, Regina v CACD 1-Dec-2006
The defendant had been convicted of murder in 1972. He now appealed on a reference by the Criminal Cases Review Commission questioning the failure of the judge to direct on provocation. He had killed a girl after they tried but failed to have . .
Lists of cited by and citing cases may be incomplete.
Criminal Practice
Updated: 17 November 2021; Ref: scu.188247