The defendant appealed against his conviction for murder saying that the defence of provocation had not been left to the jury. The trial judge had thought that there should be a provocation direction, but neither prosecuting nor defence counsel thought it was necessary, so the judge did not give the direction.
Held: The judge had tried to be fair, and had done what both experienced counsel had agreed that he should do. Nevertheless, the law was clear and on the facts the judge should have given a provocation direction. The question then was whether the omission made the conviction unsafe.
Ward LJ said: ‘There is now only one test: does the court think that the conviction is safe or unsafe? In deciding that we must pay particular respect to the almost unique statutory requirement imposed by section 3 of the Homicide Act that the question whether the provocation was enough to make a reasonable man do as this accused did must be left to the jury. That does not mean that the loss of the right to a trial of this issue by a jury must include the loss of a chance that a jury might return a perverse verdict. It means only that we must be astute to acknowledge that the judgment of human frailty – for it is that which lies at the heart of provocation – is a relative not an absolute judgment in respect of which a jury is well-placed to accommodate a permissible difference of emphasis. Thus the question is not whether we, on due and proper consideration of all the relevant evidence, are sure of guilt, but whether we are sure that at least ten members of the jury would be drawn inevitably to that conclusion.’ Since the Court could not answer that question with certainty, the conviction for murder was quashed as being unsafe. ‘The result, making some mockery of our hallowed adversarial procedure which strives to do justice to both sides, is that the appellant is able both to have his cake at trial and also to eat it on appeal.’
Judges:
Ward LJ
Citations:
[1996] EWCA Crim 1553, [1997] 2 Cr App R 104
Statutes:
Jurisdiction:
England and Wales
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 – Regina v Coutts HL 19-Jul-2006
The defendant was convicted of murder. Evidence during the trial suggested a possibility of manslaughter, but neither the defence nor prosecution proposed the alternate verdict. The defendant now appealed saying that the judge had an independent . .
Lists of cited by and citing cases may be incomplete.
Crime
Updated: 08 October 2022; Ref: scu.149217