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 emphasised the need for any available relevant evidence to be advanced at trial. Defendants were not to be permitted to run a defence at trial in the belief that after conviction, the court would allow a different defence to be raised. However evidence which would have supported diminished responsibility and was available at trial was ‘overlooked’ and not ‘further pursued’ at trial. The appellant herself ‘was not consulted’ by her lawyers and she did not, in any real sense, decide that the defence should not be advanced.
The phrase a ‘sudden and temporary loss of self-control’ ‘encapsulates an essential ingredient of the defence of provocation in a clear and readily understandable phrase. It serves to underline that the defence is concerned with the actions of an individual who is not, at the moment when he or she acts violently, master of his or her own mind.’ and ‘English cases concerned with the ‘reasonable man’ element of provocation, and examples given by judges, have tended to focus on physical characteristics. Thus age, sex, colour, race and any physical abnormality have been considered.’
As to the relevance of an interval between the provocative conduct and the reaction of the defendant to it: ‘Time for reflection may show that after the provocative conduct made its impact on the mind of the defendant, he or she kept or regained self-control. The passage of time following the provocation may also show that the subsequent attack was planned or based on motives, such as revenge or punishment, inconsistent with the loss of self-control and therefore with the defence of provocation . . There are important considerations of public policy which would be involved should provocation be redefined so as possibly to blur the distinction between sudden loss of self-control and deliberate retribution.’
Addressing the appellant’s submission that expert evidence showed that women who have been subjected frequently over a period to violent treatment may react to the final act or words by ‘slow burn’ reaction rather than by an immediate loss of self-control: ‘We accept that the subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a ‘sudden and temporary loss of self-control’ caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation.’
‘Ordinarily, of course, any available defences should be advanced at trial. Accordingly, if medical evidence is available to support a plea of diminished responsibility, it should be adduced at the trial. It cannot be too strongly emphasised that this court would require much persuasion to allow such a defence [diminished responsibility] to be raised for the first time here if the option had been exercised at trial not to pursue it. Otherwise, as must be clear, defendants might be encouraged to run one defence at trial in the belief that if it fails, this court would allow a different defence to be raised and give the defendant, in effect, two opportunities to run different defences. Nothing could be further from the truth.’
Lord Taylor of Gosforth, CJ
[1992] 4 All ER 889, [1993] 96 Cr App R 133, [1992] EWCA Crim 1, [1993] Crim LR 63
Bailii
Homicide Act 1957 2
England and Wales
Citing:
Approved – 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 by:
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 . .
Cited – Regina v Andrews CACD 15-Oct-2003
The defendant sought leave to appeal her conviction for murder saying that a finding of manslaughter was appropriate for her diminished responsibility.
Held: There was insufficient evidence to establish that the judge’s directions on the . .
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 – 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 – Moyle v Regina CACD 18-Dec-2008
The defendant appealed from his conviction for murder. He said that he had not been fit to plead at the time of the trial. A medical report had said that whilst his responsibility was impaired, it had not been substantially so. The report warned of . .
Lists of cited by and citing cases may be incomplete.
Crime
Leading Case
Updated: 09 November 2021; Ref: scu.218842
