(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 self-control and acting explosively. The trial judge directed the jury that this medical evidence was not relevant on the defence of provocation. The jury rejected both defences. The correctness of the judge’s direction on provocation was the issue on the appeal.
Held: The Board preserved the historic distinction in the defence of provocation, between matters going to the gravity of the provocation (the subjective test), in which all the personal characteristics of the defendant are relevant, and matters going to the required standard of self-control, (the objective test), where the jury should decide the matter simply by reference to the standards of ‘a person having ordinary powers of self-control’. (Majority: ) While there remained an objective element, and not all the personal characteristics of the defendant were potentially relevant to the issue of self-control, the appropriate standards of behaviour to be applied were a matter of fact alone and for the jury.
Lord Goff of Chieveley noted that any mental infirmity of the defendant, if itself the subject of taunts by the deceased, may be taken into account as going to the gravity of the provocation: ‘But this is a far cry from the defendant’s submission that the mental infirmity of a defendant impairing his power of self-control should as such be attributed to the reasonable man for the purposes of the objective test.’
Lord Steyn dissenting: ‘But even more important than the promptings of legal logic is the dictates of justice. Justice underpinned these decisions’.
Slynn, Hoffmann, Clyde, Hobhouse, Millet LL
Gazette 01-May-1996, Times 02-Apr-1996, [1996] 2 Crim App R 178, [1997] AC 131, [1996] 2 All ER 1033, [1996] 3 WLR 45, [1996] UKPC 57
Bailii
England and Wales
Citing:
Cited – Holmes v Director of Public Prosecutions HL 1946
Viscount Simon LC said: ‘as society advances, it ought to call for a higher measure of self-control in a defendant. And with regard to the defence of provocation to a charge of murder: ‘Consequently, where the provocation inspires an actual . .
Followed – 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 Thornton (Sara) CACD 13-Dec-1995
Battered women’s syndrome may be a relevant characteristic in a murder trial to be taken account of when judging context of provocation. . .
Cited – Regina v Dryden 1995
The court considered the defence of provocation to a charge of murder.
Held: ‘eccentric and obsessional personality traits’ were mental characteristics which should have been left for the jury. . .
Cited – Regina v Humphreys CACD 1995
Defence of provocation to murder. Abnormal immaturity and attention seeking by wrist slashing were mental characteristics which should have been left for the jury to decide upon. . .
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 Baillie 1995
Defence of provocation to charge of murder. . .
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:
Applied – Regina v Rowland CACD 12-Dec-2003
The appellant had been convicted of murder. He sought to have substituted a conviction for manslaughter following Smith, and in the light of evidence as to his mental characteristics.
Held: ‘in the context of the law of provocation, the . .
Cited – Her Majestys Attorney General for Jersey v Holley PC 15-Jun-2005
(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 . .
Not followed – Regina v Campbell CACD 25-Oct-1996
The defendant appealed against his conviction for murder. At trial he had pleaded provocation, but not that he suffered abnormality of mind. Subsequent evidence of his state of mind led to this referral. The court now received fresh evidence to . .
Not followed – Regina v Parker CACD 25-Feb-1997
The defendant appealed his conviction for murder, saying that his defence of provocation should have been left for the jury.
Held: Not following Luc, it was open to admit relevant evidence on the defendant’s capacity for self-control. Having . .
Cited – 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 – 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).
Cited – Regina v Borthwick CACD 18-May-1998
Prior to the trial the appellant had been examined by a psychiatrist, but he refused to allow a more detailed examination to be undertaken and pleaded not guilty on the basis that he denied responsibility for the killing. He was convicted. Shortly . .
Cited – 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, Commonwealth
Leading Case
Updated: 01 November 2021; Ref: scu.83240