(Jersey) The defendant appealed his conviction for murder, claiming a misdirection on the law of provocation. A chronic alcoholic, he had admitted killing his girlfriend with an axe. Nine law lords convened to seek to reconcile conflicting decisions of the House as to provocation.
Held: The defence of provocation has two ingredients. The first, subjective or factual, ingredient, is that the defendant was provoked into losing his self-control. In deciding whether this ingredient exists in a particular case all evidence which is probative is admissible, including evidence of any mental or other abnormality making it more or less likely that the defendant lost his self-control. The second ingredient, the objective or evaluative ingredient, raises, in the language of the statute, ‘the question whether the provocation was enough to make a reasonable man do as he did . . [taking] into account everything both done and said according to the effect . . it would have on a reasonable man’. This ingredient has two elements. The first element calls for an assessment of the gravity of the provocation. The second element calls for application of an external standard of self-control: ‘whether the provocation was enough to make a reasonable man do as he did’.
Lord Nicholls of Birkenhead (Majority): Whilst the approach taken in Smith (Morgan) might be attractive, it was not accurate: ‘ The law of homicide is a highly sensitive and highly controversial area of the criminal law. In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. In these circumstances it is not open to judges now to change (‘develop’) the common law and thereby depart from the law as declared by Parliament. ‘ and ‘Under the statute the sufficiency of the provocation (‘whether the provocation was enough to make a reasonable man do as [the defendant] did’) is to be judged by one standard, not a standard which varies from defendant to defendant. Whether the provocative act or words and the defendant’s response met the ‘ordinary person’ standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self-control was sufficiently excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant’s conduct is ‘excusable’. ‘ and ‘In expressing their conclusion above their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts . . . Their Lordships share this view.’
Judges:
Lord Bingham of Cornhill, Lord Nicholls of Birkenhead, Lord Hoffmann, Lord Hope of Craighead, Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Carswell
Citations:
[2005] UKPC 23, Times 21-Jun-2005, [2005] 3 WLR 29
Links:
Statutes:
Jurisdiction:
England and Wales
Citing:
Cited – Regina (Director of Public Prosecutions) v Camplin HL 1978
The court considered the direction to be given as to the existence of provocation so as to reduce a charge of murder to one of manslaughter. The reasonable man in the definition should be one with the defendant’s mental condition. ‘The judge should . .
Cited – Regina v Morhall HL 21-Jul-1995
The defendant was a glue sniffer. He had been taunted, and eventually attacked one of those villifying him. The judge excluded from the jury that the characteristics he suffered as a glue sniffer which might affect his response to provocation.
Cited – Rex v Kirkham 1837
In order to reduce Killing of a person to the crime of manslaughter, there must not only be sufficient provocation, but the jury must be satisfied that the fatal blow was given in consequence of that provocation. If A. had formed a deliberate design . .
Wrongly Decided – Regina v Smith (Morgan James) HL 27-Jul-2000
The defendant had sought to rely upon the defence of provocation. He had suffered serious clinical depression.
Held: When directing a jury on the law of provocation, it was no longer appropriate to direct the jury to disregard any particular . .
Cited – Regina v Welsh 1869
The judge directed the jury as to provocation saying that in order to reduce the crime to manslaughter, there should have been serious provocation, ‘something which might naturally cause an ordinary and reasonably minded man to lose his self-control . .
Cited – Luc Thiet Thuan v The Queen PC 2-Apr-1996
(Hong Kong) On a trial for murder the defendant relied on the defences of diminished responsibility and provocation. Medical evidence showed the defendant suffered from brain damage and was prone to respond to minor provocation by losing his . .
Cited – Mancini v Director of Public Prosecutions HL 1941
There are exceptional cases to the rule in Woolmington for: ‘offences where onus of proof is specially dealt with by statute’. ‘There is no reason to repeat to the jury the warning as to reasonable doubt again and again, provided that the direction . .
Cited – Regina v Duffy CCA 1949
The court approved Devlin J’s direction to the jury on the defence of provocation to a charge of murder which had described provocation: ‘Provocation is some act or series of acts done or words spoken by the dead man to the accused which would cause . .
Cited – Regina v Raven CACD 1982
The 22-year old defendant had a mental age of 9 years. He said it was inappropriate when judging the availability of the defence of provocation to a charge of murder to ignore that fact. The Recorder of London ruled that, having regard to the test . .
Cited – Regina v Ahluwalia CACD 31-Jul-1992
The appellant sought substitution of a conviction for manslaughter of her husband for that of his murder. She had long suffered violent treatment by him. She had not raised the issue of diminished responsibility at trial.
Held: The court . .
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 – James, Regina v; Regina v Karimi CACD 25-Jan-2006
The defendants appealed their convictions for murder, saying that the court had not properly guided the jury on provocation. The court was faced with apparently conflicting decision of the House of Lords (Smith) and the Privy Council (Holley).
Preferred – Mohammed, Regina v CACD 13-Jul-2005
The court granted permission to appeal against a conviction for murder on grounds that related to the judge’s summing up in respect of provocation: ‘Although Holley is a decision of the Privy Council and Morgan Smith a decision of the House of . .
Lists of cited by and citing cases may be incomplete.
Crime
Leading Case
Updated: 25 November 2022; Ref: scu.226982