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You are here: BAILII >> Databases >> The Law Commission >> Partial Defences to Murder (Consultation Paper) [2003] EWLC 173(4) (15 October 2003) URL: http://www.bailii.org/ew/other/EWLC/2003/173(4).html Cite as: [2003] EWLC 173(4)

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PART IV

SUMMARY OF THE PRESENT LAW OF PROVOCATION AND ANALYSIS OF ITS DEFECTS

Introduction to the present law

4.1     The common law rule which allows a defendant, who killed with the mens rea for murder but who was provoked, to be convicted of manslaughter not murder^[1] was modified by section 3 of the Homicide Act 1957.^[2]
4.2     Section 3 provides:

Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man.

4.3     It remains the case that it is by virtue of the common law that the offence of murder can be reduced to manslaughter in such cases. Until 1957 there were three ingredients to this defence. There had to have been provocation,^[3] it must have caused the defendant to lose self-control and act as he or she did, and it must have been such as would cause a reasonable person to do the same. Even before 1957 the first and third ingredients were sometimes elided.^[4]
4.4     This process of blurring the first and third ingredients continued after the 1957 Act,^[5] the formula being that provocation was conduct that might have caused a reasonable person to act as the defendant did. Before 1957 judges used to rule as a matter of law on the question of what could and what could not constitute provocation as a matter of law. Not everything that might have caused a defendant to have lost self-control satisfied the pre-1957 requirement of being provocative conduct within the meaning of the law. However, under the 1957 Act, section 3, provides — "Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control …".^[6] This has been held to abolish all previous rules of law as to what can or cannot amount to provocation.^[7]
4.5     The second phrase of section 3 provides — "the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury". This makes clear that

if there was any evidence that the accused himself at the time of the act which caused death in fact lost his self-control in consequence of some provocation, however slight it might appear to the judge, he was bound to leave to the jury the question, which is one of opinion not law: whether a reasonable man might have reacted to that provocation as the accused did.^[8]

Finally, the jury is told, in determining that question, to "take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man".

4.6     Thus, under section 3, the courts apply a dual test of provocation, drawn from the common law, namely (1) "the provocation must … have caused the accused to lose his self-control" and (2) it "must also be such as might cause a reasonable man to react to it as the accused did".^[9] The prior question of law asked at common law, whether the conduct of the deceased was capable in law of constituting provocation, is not included. Section 3 removed from the judge the power to withdraw the defence of provocation from the jury in a case where there was evidence that in fact the defendant had lost his or her self-control but the judge did not believe that a reasonable man would have done so.^[10] The section does this by expressly providing that it is for the jury to decide whether the provocation was enough to make a reasonable man do as the accused did.
4.7     The first of the two tests under the 1957 Act is obviously a subjective test. The second is, on the face of it, an objective test. It will be seen, however, that the courts have recognised the relevance of certain of the defendant's personal characteristics, when applying the second test.^[11] This has introduced a subjective measure to the second part of the test. The extent of subjectivity has, quite recently, been increased significantly by the House of Lords decision in Smith (Morgan).^[12]

The meaning of provocation

4.8     Before 1957 conduct could only amount to provocation if it was inherently objectionable. Since 1957 that is no longer the case. The word "provoked" in section 3 has come to be interpreted as meaning simply "caused".^[13] This has meant that conduct can qualify as provocation within the 1957 Act in cases when the conduct would never have been considered capable of being provocation prior to the Act.
4.9     Accordingly, the conduct said by the defendant to have "provoked" his or her response of killing the victim might be entirely lawful and morally blameless. As a result, there have been cases involving an official enforcing a court order (Dryden^[14]), or a baby crying (Doughty^[15]) or a person denying having stolen another's tools (Smith (Morgan))^[16] in which the courts have accepted that the conduct in question was capable of constituting provocation. The question for the jury was whether the above dual test had been met.
4.10     The way in which this change in the interpretation of "provoke" has broadened the scope for raising the defence of provocation can also be demonstrated by looking at the approach taken before and after the Act in cases concerning sexual impropriety. Throughout the first half of the twentieth century the courts regarded the fact that the defence of provocation was available when a man caught a woman in the act of adultery as an anachronism in a world where there were divorce laws for dealing with marital breakdown.^[17] The courts refused to extend the availability of the defence to engaged couples^[18] or people living together.^[19]
4.11     The modern argument voiced by critics of the present law of provocation that having an affair should never found the possibility of a defence is thus a concept supported by judges throughout the first half of the twentieth century. That was even though the courts were bound by ancient authority to allow the defence in cases when a man found his wife in the act of adultery.

Proof of provocation

4.12     On the issue of provocation, it is for the Crown to satisfy the jury that the defendant had not been provoked. This differs from the issue of diminished responsibility, where section 2 of the 1957 Act places the onus of proof on the defendant.^[20]
4.13     The question whether a defendant was provoked to lose his or her self-control is a question of fact. "In accordance with the general rule, it is for the judge to say whether there is any evidence of that fact."^[21] Once there, then it is the responsibility of the judge to leave the "second" question to the jury. It is for them to decide whether a reasonable man would have done as the defendant did. For this reason, the judge must leave the issue of provocation to the jury in such a case even where counsel expressly informs the court that the defendant does not wish to rely on that defence. ^[22]
4.14     The courts recognise that for a defendant to seek to rely on provocation (which is a partial defence) could undermine his or her complete defence, for example in a case in which the defendant argues that he or she killed in self-defence. Even if a defendant denies having lost self-control, if there is evidence that he or she did, the jury must be invited to consider the question whether a reasonable man would have done so.^[23]

The loss of self-control

Background

4.15     When the defence of provocation emerged in the seventeenth and eighteenth centuries only conduct that fell within particular recognised categories could be regarded as provocation in law.^[24] In the nineteenth century, judges preferred to regard provocation as something which temporarily deprived a defendant of his or her reason, rather than such a killing being regarded as rational behaviour which had gone too far. The Victorian judges adapted the law in two ways to achieve this preference.
4.16     In place of the specific categories which the old law had regarded as sufficient, a more general rule was introduced: whatever the nature of the alleged provocation, the response had to be "reasonable".^[25] Second, instead of asking whether the angry retaliation by the accused, though excessive, was in principle justified, the question was whether the accused had lost self-control.^[26]
4.17     The courts required provocation and loss of self-control to occur at, or about, the same time.^[27] Historically the theoretical basis for this requirement stemmed from the fact that the mental element of murder was "malice aforethought". If a defendant acted in hot blood, this generally negatived "malice aforethought". Conversely, a premeditated killing could never be a provoked killing.

Sudden and temporary loss of control

4.18     The direction regarded as classic by the Court of Appeal in Duffy^[28] refers to the need for a "sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him for the moment not master of his mind."^[29] Later in the summing up in Duffy, in a passage again approved by the Court of Appeal, Devlin J said:

Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is of the essence of provocation.^[30]

4.19     Lord Diplock in DPP v Camplin,^[31] clearly thought the loss of self-control must occur at or about the time of the provocation, he spoke of "any evidence that the accused himself at the time of the act which caused the death in fact lost his self-control."^[32]
4.20     In Ibrams,^[33] Thornton,^[34] and Ahluwalia^[35] the Court of Appeal has re-affirmed the requirement of a "sudden and temporary loss of self-control". In Ahluwalia,^[36] Lord Taylor CJ said that the phrase "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." The moral footing of this is that, in one way, such a defendant lacks full mens rea. Although it might appear from the defendant's conduct that an intentional serious harm or death has occurred, the effect of the provocation may be that the moral responsibility for the death is reduced.

Significance of delay between acts of provocation and killing

4.21     Even though the loss of self-control must be sudden, the more recent cases do not insist on it being immediate.^[37] Addressing the relevance of an interval between the provocative conduct and the reaction of the defendant to it, Lord Taylor CJ said in Ahluwalia:^[38]

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.^[39]… 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.^[40]

4.22     However, addressing the submission on the appellant's behalf 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, Lord Taylor CJ said:

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.^[41]

4.23     Baille^[42] is another case in which there was a time delay between the acts of provocation and the killing. The defendant armed himself with a sawn-off shotgun and cut-throat razor and drove to the home of the deceased who had been supplying drugs to the defendant's three teenage sons, where he shot him. Quashing the conviction and ordering a retrial, the court held that the judge had taken too austere an approach for the purposes of section 3 and ought to have left the defence of provocation to the jury. The court recognised that there were evidential difficulties in the defence succeeding. However the court also observed that it had been referred to cases where the matter had been left to juries and the defence had succeeded, even though there were the same qualities of the desire for revenge, as great a lapse of time, as much planning and as many of the features as pointed against a sudden and temporary loss of self-control as in this case.^[43]

Where acts of provocation took place over a long period of time

4.24     In Pearson^[44] the fact that the defendants waited until the deceased was asleep and then armed themselves with a sledgehammer was not fatal to the defence. The deceased, described as a "violent tyrant of a man", was the father of the two brothers (M and W) who killed him. M had suffered 8 years of his father's behaviour. W was directly exposed to it for less than a year. On the day of the killing the deceased had struck out at M who was suffering from toothache and threatened to knock all his teeth out. He also threatened W with violence. The jury convicted M of manslaughter due to provocation and W of murder. Allowing W's appeal and substituting a verdict of manslaughter, it was held:

[I]n drawing a distinction between William and Malcolm [the judge] omitted to direct [the jury] that in deciding whether William had reasonably lost his self-control they could have regard to the father's words and conduct not simply against him but against Malcolm, especially since it appeared that William's return had been prompted by a desire to protect Malcolm from further violence. The jury could have been left with the impression that the eight years when Malcolm was alone with the father were not material and only provocation based on William's personal experience was relevant.^[45]

The significance of planning the offence to the issue of loss of self-control

4.25     In Ibrams,^[46] the existence of a plan to attack the deceased (carried out five nights after the last act of provocation) was regarded as inconsistent with the loss of self-control required by the defence. The Court of Appeal regarded the acts of provocation in that case (gross bullying, terrorising by the deceased) as more grave than any of the cases to which they had been referred.^[47] Nevertheless, as nothing happened on the night of the killing which caused loss of self-control the defence was not available.^[48] While accepting that the gross bullying and terrorising had almost certainly impaired the judgment of the appellants, the court added: "but that impairment of judgment is not the same as loss of self-control."^[49]
4.26     In Dryden,^[50] it was the overwhelming evidence of advance planning and the carrying out of that plan which satisfied the court that the appellant had not lost his self-control.^[51]

Conclusion on loss of self-control

4.27     When we talk of "loss of self-control" this is an ambiguous and potentially misleading phrase.^[52] There is an increased readiness in the courts to find that a case may be left to the jury on the issue of loss of self-control. The courts are less inclined to rule that there is no evidence of loss of control by reason of lapse of time between the last act of provocation and the killing, or the fact that the defendant armed him or herself. Baille^[53] is a particularly good example of this. However, it remains the case that unless the jury is satisfied that the defendant did in fact lose self-control, there can be no question of a conclusion that he or she was provoked. Loss of self-control remains a requirement. Mere "impairment of judgment is not the same as loss of self-control".^[54] Similarly, loss of self-restraint is not the same as loss of self-control.^[55]
4.28     However, the readiness of the courts to accept the possibility of a "slow burn" reaction to provocation, culminating in a loss of self-control gives rise to a difficult question. It leaves no clear way of differentiating between a "provoked killing" and a "revenge killing" as the case of Baille^[56] illustrates. How can such a case be distinguished from a revenge attack in response to the provocation? If on facts such as those in Baille, a jury accepted the defence of provocation, that would break the moral plank on which the defence of provocation has, at least since Victorian times, rested. Namely, that due to the loss of self-control, the defendant was not master of his or her own mind, and, in one way, lacked the full mens rea of the offence.

Whether the provocation was enough to make a reasonable man do as the defendant did

4.29     In determining whether the provocation was "enough to make a reasonable man do as he did", section 3 of the Homicide Act 1957 requires that the jury "shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man". It is the latter phrase, which has given rise to most difficulty in the application of section 3. Historically, it had been held that the reasonable man test was not to be modified to take into consideration particular characteristics of the defendant. Consequently, no account could be taken of the degree of mental ability of defendants in Alexandra^[57] and Lesbini^[58]. Nor was "an unusually excitable or pugnacious individual" entitled to rely on provocation "which would not have led an ordinary person to act as he did."^[59] The impotence of Bedder^[60] was not material when testing whether there had been "provocation by the deceased to justify the violence used" although Bedder killed after being taunted about his impotence.^[61]
4.30     The requirement in section 3 that "the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man" changed the relevance of "characteristics" of the defendant in provocation cases. The courts recognised that it would not always be possible to take proper account of things said without taking consideration of certain pertinent characteristics.^[62]

DPP v Camplin

4.31     In DPP v Camplin,^[63] (House of Lords) Lord Diplock explained:

It would stultify much of the mitigation of the previous harshness of the common law in ruling out verbal provocation as capable of reducing murder to manslaughter if the jury could not take into consideration all those factors which in their opinion would affect the gravity of taunts or insults when applied to the person whom they are addressed. So to this extent at any rate the unqualified proposition accepted by this House in Bedder … that for the purposes of the "reasonable man" test any unusual physical characteristics of the accused must be ignored requires revision as a result of the passing of the Act of 1957.^[64]

4.32     Thus, in DPP v Camplin those characteristics that affect the gravity of the taunt were held to be relevant under section 3. Lord Diplock concluded:

The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did.^[65]

4.33     There are two limbs to this explanation of the expression "reasonable man"^[66] in section 3:

(1) the person has the "power of self-control to be expected of an ordinary person of the sex and age of the accused"; but

(2) "in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him".

4.34     The first, partly objective, limb set a "norm" with which people were expected to conform. Lord Simon explained the reason for this. It is "to avoid the injustice of a man being entitled to rely on his exceptional excitability or pugnacity or ill-temper or on his drunkenness. (I do not purport to be exhaustive in this enumeration)".^[67]
4.35     The second, subjective, limb identifies the type of characteristics of the accused which should be taken into account – those which affect the gravity of the provocation.
4.36     The logic of the second limb of Lord Diplock's test is that without it, the jury would be prevented from fulfilling the function conferred on them by section 3 according to its terms. In determining the question of whether the provocation was enough to make a reasonable man so act, the jury are required to "take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man".^[68] This requirement would be meaningless if jurors, when purporting to assess the gravity of a taunt, did so disregarding all characteristics of the person to whom the taunt was addressed.^[69]
4.37     However, Lord Diplock conceded, when contemplating the relevance of Camplin's age to the issue of provocation, that:

[I]n strict logic there is a transition between treating age as a characteristic that may be taken into account in assessing the gravity of the provocation addressed to the accused and treating it as a characteristic to be taken into account in determining what is the degree of self-control to be expected of the ordinary person with whom the accussed's conduct is to be compared. But to require old heads upon young shoulders is inconsistent with the law's compassion to human infirmity to which Sir Michael Foster ascribed the doctrine of provocation more than two centuries ago. The distinction as to the purposes for which it is legitimate to take the age of the accused into account involves considerations of too great nicety to warrant a place in deciding a matter of opinion, which is no longer one to be decided by a judge trained in logical reasoning but is to be decided by a jury drawing on their experience of how ordinary human beings behave in real life.^[70]

4.38     In July 2000, the House of Lords in Smith (Morgan)^[71] held that all the particular characteristics of the defendant were to be taken into account in deciding whether the defendant was in fact provoked and whether the objective element was satisfied. No distinction was to be drawn between those characteristics which affect the defendant's powers of self-control and those which affect the gravity of the provocation to the defendant.

The journey from Camplin to Smith (Morgan)

4.39     In DPP v Camplin their Lordships gave examples of a number of characteristics which should be considered, if the provocation related to them. They included age, sex, race, colour, ethnic origin, physical deformity or infirmity, impotence, some shameful incident in the past, abscess on the cheek (where the provocation relied on was a blow to the face) or, in a female defendant, the conditions of pregnancy or menstruation.^[72] Since DPP v Camplin, the difficult question has been, what other characteristics should be considered, and whether a characteristic can only be considered if the provocation related to it? At various levels in the judicial hierarchy the arguments associated with characteristics and their relevance have been articulated persuasively in opposing directions. Extracts from those judgments will be given in this section.

The need for account to be taken of some of the characteristics of the defendant

4.40     In DPP v Camplin,^[73] Lord Diplock suggested a definition of "reasonable man" as used in section 3 of the 1957 Act. He said:

It means an ordinary person of either sex, not exceptionally excitable of pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today.^[74]

4.41     Lord Simon, also in DPP v Camplin,^[75] explained the reasons behind reference to the reasonable man in this branch of the law:

The original reasons in this branch of the law were largely reasons of the heart and of common sense, not the reasons of pure juristic logic. The potentiality of provocation to reduce murder to manslaughter was … "in compassion to human infirmity." But justice and common sense then demanded some limitation: it would be unjust that the drunk man or one exceptionally pugnacious or bad-tempered or over-sensitive should be able to claim that these matters rendered him peculiarly susceptible to the provocation offered, where the sober and even-tempered man would hang for his homicide. Hence, I think, the development of the concept of the reaction of a reasonable man to the provocation offered … But it is one thing to invoke the reasonable man for the standard of self-control which the law requires: it is quite another to substitute some hypothetical being from whom all mental and physical attributes (except perhaps sex) have been abstracted.^[76]

Can any characteristic modify the hypothetical reasonable man?

4.42     On the question of which of the defendant's characteristics can be possessed by the reasonable man Lord Taylor CJ, observed in Dryden:^[77]

What characteristics are appropriate for the jury to consider has been a vexed question since Camplin. If one adds all the characteristics of the appellant to the notional reasonable man, there is a danger that the reasonable man becomes reincarnated as the appellant. However, the point in Camplin, which was emphasised not only by Lord Diplock but also by Lord Simon of Glaisdale was that the purpose of taking the reasonable man was to have a yardstick to measure the loss of self-control that will be permitted to found a defence of provocation.

4.43     The New Zealand case of McGregor^[78] was, at one stage, influential in the English courts.^[79] The following extract from the judgment of North J, offers one explanation of which of the defendant's characteristics can modify the reasonable man:

It is not every trait or disposition of the offender that can be invoked to modify the concept of the ordinary man. The characteristic must be something definite and of sufficient significance to make the offender a different person from the ordinary run of mankind, and have also a sufficient degree of permanence to warrant its being regarded as something constituting part of the individual's character or personality. A disposition to be unduly suspicious or to lose one's temper readily will not suffice, nor will a temporary or transitory state of mind such as a mood of depression, excitability or irascibility. These matters are either not of sufficient significance or not of sufficient permanency to be regarded as "characteristics" which would enable the offender to be distinguished from the ordinary man … It is to be emphasised that of whatever nature the characteristic may be, it must be such that it can fairly be said that the offender is thereby marked off or distinguished from the ordinary man of the community.^[80]

4.44     However, regarding the use made in English courts of this New Zealand case, Lord Goff pointed out in the Privy Council in Luc Thiet Thuan,^[81]

it must be unwise to impose uncritically upon an English statute an interpretation placed upon a statute from another jurisdiction which is not expressed in the same words. … [T]he wholesale adoption, without analysis, of a substantial part of this obiter dictum, which covers a wide range of points on a notoriously difficult subject with particular reference to the New Zealand statute, is not a satisfactory approach to the interpretation of the objective test in provocation as recognised in the English statute.

4.45     In due course, North J's dictum was found to create difficulties when applied in practice and it was disapproved by the New Zealand Court of Appeal in McCarthy.^[82] Lord Goff expressed regret in Luc Thiet Thuan, that this disapproval had not been brought to the attention of the court in Ahluwalia,^[83] Dryden^[84] and Humphreys.^[85]

Characteristics that are repugnant to the concept of the reasonable man

4.46     Lord Taylor CJ pointed out in Morhall^[86] (in the Court of Appeal) that none of the characteristics given as examples in DPP v Camplin, as those which should be considered if provocation related to them,^[87] is inconsistent with the general concept of a reasonable or ordinary person.^[88] On the other hand, on appeal to the House of Lords, Lord Goff said:

[T]here is nothing in the speeches in R v Camplin to suggest that a characteristic of this kind should be excluded from consideration. On the contrary … Lord Diplock spoke of the jury taking into consideration "all those factors" which would affect the gravity of the taunts or insults when applied to the defendant.^[89]

4.47     In Morhall,^[90] the appellant was a glue-sniffer who had been persistently criticised by the deceased and others about his addiction before the fatal stabbing. The issue concerning the relevance of this addiction was decided differently in the Court of Appeal and in the House of Lords. The latter ruled that where such a characteristic affected the gravity of the provocation it was a relevant characteristic to be taken into account by the jury.^[91] The arguments in both courts are of interest and will now be set out.
4.48     Agreeing with the Crown's argument that such a characteristic did not qualify for consideration, Lord Taylor said:

Otherwise, some remarkable results would follow. Not only would a defendant, who habitually abuses himself by sniffing glue to the point of addiction, be entitled to have that characteristic taken into account in his favour by the jury; logic would demand similar indulgence towards an alcoholic,^[92] or a defendant who had illegally abused heroin, cocaine, or crack to the point of addiction. Similarly, a paedophile, upbraided for molesting children, would be entitled to have his characteristic weighted in his favour on the issue of provocation. Yet none of these addictions or propensities could sensibly be regarded as consistent with the reasonable man. It is to be noted, and we emphasise, that section 3 refers to a 'reasonable man', not just to a person with the self-control of a reasonable man. Whilst DPP v Camplin decided that the 'reasonable man' should be invested with the defendant's characteristics, they surely cannot include characteristics repugnant to the concept of the reasonable man.^[93]

4.49     The Court of Appeal concluded:

In our judgment, however, a self-induced addiction to glue sniffing brought on by voluntary and persistent abuse of solvents is wholly inconsistent with the concept of a reasonable man. In effect, [the appellant's] argument would stultify the test. It would result in the so-called reasonable man being a reincarnation of the appellant with his peculiar characteristics whether capable of being possessed by a reasonable man or not and whether acquired by nature or by his own abuse.^[94]

4.50     That decision was however reversed in the House of Lords. Lord Goff explained:

Judging from the speeches in R v Camplin, it should indeed have been taken into account. Indeed, it was a characteristic of particular relevance, since the words of the deceased, which were said to constitute provocation, were directed towards the defendant's shameful addiction to glue-sniffing and his inability to break himself of it.^[95]

4.51     The contrary conclusion reached in the Court of Appeal seemed to flow from a misunderstanding of the "so-called 'reasonable person test' in this context".^[96] Lord Goff continued that:

[T]he 'reasonable person test' is concerned not with ratiocination, nor with the reasonable man whom we know so well in the law of negligence … nor with reasonable conduct generally. The function of the test is only to introduce, as a matter of policy, a standard of self-control which has to be complied with if provocation is to be established in law… .^[97]

4.52     In addition to the characteristics which the jury think would affect the gravity of the provocation, Lord Goff said that:

[I]n an appropriate case, it may be necessary to refer to other circumstances affecting the gravity of the provocation to the defendant which do not strictly fall within the description 'characteristics', as for example the defendant's history or the circumstances in which he is placed at the relevant time… .^[98]

4.53     Thus, however discreditable a condition may be, "it may where relevant be taken into account as going to the gravity of the provocation".^[99] That is not to say that being intoxicated at the time of killing should be taken into account. Lord Goff was clear that those factors should not be taken into account "because that, like displaying a lack of ordinary self-control, is excluded as a matter of policy."^[100]
4.54     In Humphreys^[101] the Court of Appeal was again concerned with the question whether abnormal characteristics (immaturity and attention seeking by wrist slashing) were inconsistent with or repugnant to the concept of the reasonable man. The court also considered whether those characteristics could be considered by the jury in determining on the issue of loss of self-control. The case will be discussed in the following section.

Are any abnormal characteristics of the defendant eligible for consideration by the jury on the issue of loss of self-control?

4.55     In Dryden^[102] (a case concerning a land owner who shot dead a planning officer) the English Court of Appeal held that obsessiveness and the eccentric character of the appellant were sufficiently permanent and set him apart from the ordinary man sufficiently to amount to characteristics that should be left to the jury.^[103]
4.56     Humphreys^[104] concerned an appellant who turned to drugs and prostitution in adolescence. Aged 17 she lived with a 33-year-old man with whom she had a tempestuous relationship. He lived in part on her earnings from prostitution, was jealous and possessive and beat her on numerous occasions. On the night that she killed this man, she had first cut her wrists out of fear that when he returned, drunk, he would beat her and force her to have sex with him and possibly with others. On his return, the man taunted her, saying that she had not made a very good job of slashing her wrists and she stabbed and killed him with a kitchen knife.
4.57     The Court held in respect of the abnormal immaturity and attention seeking by wrist slashing:

[T]he appellant's tendency to attention seeking by wrist slashing … can, in truth, be regarded as a psychological illness or disorder which is in no way repugnant to or wholly inconsistent with the concept of the reasonable person. It is also a permanent condition … . Furthermore, it was clearly open to the jury to conclude that the provocative taunt relied upon as the trigger inevitably hit directly at this very abnormality and was calculated to strike a very raw nerve … . [T]he judge should have left for the jury's deliberation these two relevant characteristics as eligible for attribution to the reasonable woman, it being for them to decide what, if any, weight should be given to them in all the circumstances.^[105]

4.58     Another important development in this case relates to the approach that should be taken in cases where provocative circumstances comprise a complex history:

[W]e do not think that on the facts of this case a mere historical recital, devoid of any analysis or guidance, was sufficient. This tempestuous relationship was a complex story with several distinct and cumulative strands of potentially provocative conduct building up until the final encounter. Over the long term there was the continuing cruelty … . [W]e consider that guidance, in the form of a careful analysis of these strands, should have been given by the judge so that the jury could clearly understand their potential significance.^[106]

4.59     The question of whether abnormal characteristics of the accused are eligible for consideration by the jury in determining whether a reasonable person having characteristics of the appellant would have lost self-control was further considered in Thornton (No 2).^[107]
4.60     In this case the Court of Appeal explained the two ways in which battered woman syndrome may be relevant:

First, it may form an important background to whatever triggered the actus reus. A jury may more readily find there was a sudden loss of control triggered by even a minor incident, if the defendant has endured abuse over a period, on the 'last straw' basis. Secondly, depending on the medical evidence, the syndrome may have affected the defendant's personality so as to constitute a significant characteristic relevant … to the second question the jury has to consider in regard to provocation. ^[108]

4.61     The further medical evidence before the court in this, the second appeal, raised the appellant's personality disorder for consideration as a relevant characteristic, and the element of "battered woman syndrome".^[109] It was clear that mental as well as physical characteristics should be taken into account, and the judge should give the jury directions as to what, on the evidence, is capable of amounting to a relevant characteristic. The question was "whether the hypothetical reasonable woman possessing the appellant's characteristics would have reacted to the provocative conduct so as to do what the appellant did."^[110]
4.62     In Luc Thiet Thuan^[111] the Privy Council doubted the decisions in Humphreys (and others in this line of cases) and firmly took the contrary position in respect of relevance of the characteristics of the defendant to the issue of self-control. It held that the reasonable man referred to by section 3 of the 1957 Act (and section 4 of the Homicide Ordinance of Hong Kong, from where the case emanated) was a person who shared such of the individual characteristics of the defendant as the jury might consider would affect the gravity of the provocation, but who had the power of self-control to be expected of an ordinary man or woman or young person. The line of cases after Camplin which had held that the jury should be directed to take into account brain damage of a defendant which made it difficult for him or her to control impulses had, the court said, been wrongly decided.
4.63     Lord Steyn, in a minority opinion in Luc Thiet Thuan, said that the later cases referred to were not inconsistent with Camplin, rather they constituted a logical extension of its reasoning and were in accordance with justice.^[112] He added that:

The law remains that a defendant may not call in aid his own irascibility or pugnacity. The Royal Commission was confident that "minor abnormalities of character" must be ignored … . That does not mean that it was right to ask the jury to ignore the defendant's brain damage. Counsel for the prosecution argue that it may prove difficult to say where the line should be drawn. We ought not to shrink for this reason from recognising a rational and just development. The traditional common law answer is apposite: any difficult borderline cases will be considered if and when they occur. In the meantime nobody should underestimate the capacity of our law to move forward where necessary, putting an end to demonstrable unfairness exposed by experience.^[113]

4.64     In Campbell^[114] Lord Bingham CJ addressed the position of domestic courts, faced with the conflicting approach taken by the Law Lords in the Privy Council. He said that if the court were entitled to choose between the competing views expressed "we should face a difficult task".^[115] While there was compelling force in the construction of section 3 by the majority – the provision makes no express warrant for elaborating or qualifying the concept – Lord Bingham CJ continued:

We are, however, conscious that the body of Court of Appeal authority which is in doubt represents a judicial response, born of everyday experience in criminal trials up and down the country, to what fairness seems to require. If the concept of the reasonable man expressed in section 3 were accepted without any qualification, successful pleas of provocation would be rare indeed, since it is not altogether easy to imagine circumstances in which a reasonable man would strike a fatal blow with the necessary mental intention, whatever the provocation. It is in recognition of human frailty that the scope of the defence of provocation has, to a very limited extent, been enlarged. As Lord Steyn put it at p 66H: 'But even more important than the promptings of legal logic is the dictates of justice. Justice underpinned these decisions.'^[116]

4.65     The above represents the journey taken by the courts from DPP v Camplin to the decision in Smith (Morgan) in which the House of Lords held (3:2) that all the particular characteristics of the defendant were to be taken into account in deciding both whether he or she was in fact provoked and whether the objective element of provocation was satisfied.
4.66     Lord Slynn emphasised that this approach:

[D]oes not mean that the objective standard of what 'everyone is entitled to expect that his fellow citizens will exercise in society as it is today' is eliminated. It does enable the jury to decide whether in all the circumstances people with his characteristics would reasonably be expected to exercise more self-control than he did … .^[117]

4.67     Lord Hoffmann emphasised that "what has been rendered unworkable is not the principle of objectivity which (subject to the changes noted in Camplin) section 3 was plainly intended to preserve, but a particular way of explaining it".^[118]
4.68     The case of Smith (Morgan) is of significant importance in this area of the law. The basis of the five opinions delivered varies quite considerably, even amongst those who agreed with each other on the outcome of the case. There follows a detailed analysis of this case.

Analysis of House of Lords judgment in Smith (Morgan)

Introduction

4.69     The majority judgments delivered by Lord Hoffmann, Lord Clyde and Lord Slynn dismissed the Crown's appeal from the Court of Appeal. They held that in murder cases where there is evidence that the defendant may have been provoked, the question for the jury was whether the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. All the particular characteristics of the defendant were to be taken into account in deciding both whether the defendant was in fact provoked and whether the response of the defendant was such that it ought to give rise to liability only for manslaughter. This includes, where appropriate in order to do justice, evidence of lack of capacity of the defendant to exercise self-control.
4.70     The dissenting judgments delivered by Lord Hobhouse and Lord Millett take the view that evidence of the defendant's characteristics has relevance only to (i) the issue whether D in fact lost self-control, and (ii) the gravity of the provocation. It is not admissible in respect of the standard of self-control that all defendants are expected to exercise.^[119]
4.71     A common feature of judgments both in the majority and in dissent, is the view that the expression "reasonable man" is unhelpful.^[120]

Lord Hoffmann

4.72     The basis of Lord Hoffmann's judgment – that the effect of Smith's depression on his powers of self-control was something that the jury should have been free to consider when deciding whether he had been provoked to kill McCullagh (V) – is as follows.

The changes made by section 3 of the Homicide Act 1957

4.73     The revision of the common law relating to the partial defence of provocation effected by section 3 of the 1957 Act made two plain changes to the law:^[121]

(1) If "there was evidence that the accused was provoked to lose his self-control (the subjective element) then the question of whether the objective element was satisfied had to be left to the jury".

(2) The "jury could for this purpose take into account 'everything both said and done'. This removed any legal restriction on the kind of acts that could amount to provocation".^[122]

4.74     Much importance is placed on the change in the respective roles of judge and jury.^[123] This change removed from the judge the power to withdraw the issue of provocation from the jury. Prior to 1957 that was a means of deflecting the jury from a perverse verdict. Under section 3:

The jury was to be sovereign and have the power in theory as well as in practice to decide whether the objective element was satisfied.^[124]

The effect of these statutory changes

4.75     Lord Hoffmann reasoned that section 3 gave the jury a normative function in addition to their fact-finding function. They could determine the standard of behaviour required in any case.
4.76     That being the case it would be trespassing on the function of the jury for the judge to tell them, as a matter of law, that "they should ignore any factor or characteristic of the accused in deciding whether the objective element of provocation had been satisfied".^[125]
4.77     The jury would need assistance in fulfilling their normative role. Lord Hoffmann suggested that the jury be told that the doctrine of provocation includes the principle of objectivity. They should have regard to that principle when deciding whether the act in question was sufficiently provocative to be acceptable as a partial excuse.^[126]

Camplin

4.78     Lord Hoffmann drew attention to passages in Camplin which he said supported his interpretation. He argued that Lord Diplock had not intended his suggested direction on the facts of Camplin to be interpreted as meaning that in every case the only factors, which were relevant to the issue of loss of self-control, were those of age and sex.^[127]
4.79     Lord Hoffmann did not accept that Camplin was authority for drawing a distinction between those characteristics which affect the gravity of the provocation and those which go to the issue of self-control. However, because that distinction has been adopted in New Zealand, Australia and Canada and by the Privy Council for Hong Kong, and it has received much academic support, the distinction is addressed in Lord Hoffmann's judgment.^[128]

The relationship between sections 2 and 3

4.80     The theoretical basis for the distinction is that provocation is a defence for the mentally "normal". A defendant who claims that mental abnormality affected his or her powers of self-control should plead diminished responsibility.^[129]
4.81     It was accepted that there is a clear philosophical distinction between the defendant who claims to be partially excused, as his or her behaviour was a normal response to external circumstance and the defendant whose mental characteristics prevented him or her from behaving normally.^[130] The difficulty is that in practice, in many cases, for example Rongonui,^[131] the two forms of claim are inextricably muddled. The same factor or characteristic may bear relevance both to loss of self-control and to gravity of provocation. Juries are puzzled by directions that the evidence has relevance to one but not the other. Professor Stanley Yeo explains this puzzlement by the fact that the distinction bears no relationship to either of the underlying rationales for the partial defence (be it relative morality, or inability to control full mental faculties).^[132]
4.82     Apart from the practical difficulties, Lord Hoffmann thinks it wrong to assume that there is a neat dichotomy between the ordinary person contemplated by the law of provocation and the abnormal one contemplated by the law of diminished responsibility. It is inevitable that there is a possibility of overlap between these because section 3 consigns the whole objective element to the jury.^[133]

The need for an objective element in the defence of provocation

4.83     Lord Hoffmann accepts that:

A person who flies into a murderous rage when he is crossed, thwarted or disappointed in the vicissitudes of life should not be able to rely upon his antisocial propensity as even a partial excuse for killing.^[134]

He agreed with the result in Stingel^[135] (an Australian case in which a jealous ex-boyfriend stalked his former girlfriend and killed the man he found having sex with her) saying:

I respectfully agree. Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide, whether inflicted upon the woman herself or her new lover … . [I]t is suggested, a direction that characteristics such as jealousy and obsession should be ignored in relation to the objective element is the best way to ensure that people like Stingel cannot rely upon the defence.^[136]

Is the gravity of provocation/self-control distinction vital to achieve an objective standard?

4.84     Lord Hoffmann identifies "one really serious argument in favour of the distinction between characteristics affecting the gravity of the provocation and characteristics affecting the power of self-control". ^[137] The argument is that this is the only way to hold the line against complete erosion of the objective element in provocation.
4.85     The obvious concern is that if there is no limit to the characteristics which can be taken into account, then "the fact that the accused lost self-control will show that he is a person liable in such circumstances to lose his self-control. The objective element will have disappeared completely".^[138]
4.86     However, referring to the English Court of Appeal decisions since Camplin – in Newell,^[139] Ahluwalia,^[140] Dryden^[141] and Campbell^[142] – Lord Hoffmann expressed reluctance at the prospect of turning back the strong current of authority from three successive Lord Chief Justices unless those cases were inconsistent with statute. He did not think they were. In Ahluwalia^[143] Lord Taylor said that characteristics relating to the mental state or personality of an individual could be taken into account^[144] and, in Dryden,^[145] that mental characteristics of obsessiveness and eccentricity should be considered. Lord Hoffmann relied heavily on the fact that in neither case was it said that the jury should have been directed to have regard to these characteristics only in so far as they might have affected the gravity of the provocation^[146] but not in so far as they might have affected his powers of self-control.^[147]
4.87     Some assume that unless the judge can direct the jury that certain characteristics of the accused are legally irrelevant to the objective element in the defence, "the jury may receive the impression that the law actually requires them to take such matters into account".^[148] Lord Hoffmann disagreed. He recognised that there would always be such a risk but he believed that Parliament considered

that risk less likely to cause injustice than to confine the jury within the rules of law which had been developed about the notional characteristics of the reasonable man.^[149]

The reasonable man – an unworkable expression in this context

4.88     Lord Hoffmann regarded the main obstacle to directing juries effectively in provocation cases to be the way that courts and writers had married two concepts:

(1) the "old formula that the provocation must have been such as to cause a 'reasonable man' to act in the same way as the accused"; and

(2) the rule in section 3, that "no circumstances or characteristics should be excluded from the consideration of the jury".^[150]

4.89     The marrying of these concepts has led to juries being told that certain characteristics are to be "attributed" to the reasonable man – resulting in "monsters" like the reasonable obsessive, or the reasonable depressive alcoholic. To substitute "ordinary" for "reasonable" does not help.^[151] If the characteristic is to be attributed in this way, that will lead a jury to believe that it is not only a matter in law which they are entitled to take into account, but that they are "qualities for which allowances must be made".^[152]
4.90     All that the reasonable man test achieves in this area of law is to convey to the jury that, even under provocation, people must conform to an objective standard of behaviour that society is entitled to expect.^[153]
4.91     It is questionable whether Keating J was right in Welsh^[154] in thinking that the expression "reasonable man" borrowed from the definition of negligence would be a good way of explaining this principle. Whatever the position was before 1957, "the value of the image has been hopelessly compromised by the 1957 Act".^[155]

The principle of objectivity should be expounded in clear language

4.92     Lord Hoffmann emphasised that what had been rendered unworkable was not the principle of objectivity which section 3 was plainly intended to preserve, but the particular way of explaining it. He suggested that the principle should be expounded in clear language rather than by the use of an opaque formula.
4.93     Conclusion of Lord Hoffmann

(1) Judges should not be required to describe the objective element in the provocation defence by reference to a reasonable man, with or without attribution of personal characteristics.

(2) Judges may find it more helpful to explain in simple language the principles of provocation:

(a) the requirement that D killed while he or she had lost self-control and something caused that loss of self-control;

(b) the fact that something caused D to lose self-control is not enough:

(i) the law expects people to exercise control over their emotions – tendency to violent rages or childish tantrums is a defect in character rather than an excuse;

(ii) were the circumstances such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter?

(iii) it is for the jury alone to decide this last issue:

(A) by applying the appropriate standards and deciding what degree of self-control everyone is entitled to expect that his fellow citizens will exercise in society as it is today: on the one hand making allowance for human nature and the power of emotions but, on the other, not allowing someone to rely upon his or her own violent disposition.

(B) In most cases, nothing more need be said.^[156] In an appropriate case they should be reminded that this is a principle not a rigid rule. It may sometimes have to yield to a more important principle, which is "to do justice in a particular case". The jury may think there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him or her and which it would be unjust not to take into account.

Lord Clyde

Injustice of limiting jury consideration of characteristics to those that affect the gravity of provocation and not the capacity to exercise self-control

4.94     The main basis of Lord Clyde's judgment is that injustice may occur if the case is decided "not by the actual facts relating to the particular accused but by the blind application of an objective standard of conduct".^[157] There would be a serious risk of injustice being done in some cases where the homicide is due to provocation but the condition of the accused falls short of a mental abnormality.^[158]
4.95     Lord Clyde was concerned about cases where the capacity of particular individuals to restrain themselves in the face of provocation is lessened by some affliction, which falls short of a mental abnormality. It did not seem just that in assessing their guilt in a matter of homicide a standard of behaviour had to be applied, which they are incapable of attaining. He gave the example of a plea of provocation made by a battered wife whose condition falls short of a mental abnormality. He stated that:

The reasonable person in such a case should be one who is exercising a reasonable level of self-control for someone with her history, her experience and her state of mind.^[159]

Relevance of section 2 – diminished responsibility

4.96     Lord Clyde pointed out that the scope of the common law defence of provocation, as qualified by the provisions of section 3, should not be determined by the arrival of the distinct statutory defence of diminished responsibility.^[160]

Proportionality between provocation and response

4.97     Lord Clyde believes that the critical question when assessing reasonableness in provocation is that of proportionality between the provocation and the response.^[161] This is because the concept of reasonableness in the statute seems to open the way to analysis of both the provocation and the response to it.^[162]

The concept of the reasonable man

4.98     In respect of the "reasonable man" element of provocation, like Lord Hoffmann, Lord Clyde does not find this expression to be helpful. He does not go as far as Lord Hoffmann, in saying that it is wrong to speak of the reasonable man attributed with certain characteristics, but he questions whether the addition of this expression has added unnecessary obscurity to what ought to be a matter of relative simplicity.^[163]
4.99     Like Lord Hoffmann, Lord Clyde does not think that the potential tension between the requirement of society, that people should restrain their natural passions and the law's compassion for those who, under the stress of provocation, temporarily lose their self-control, is solved by recourse to the concept of the reasonable man. Lord Clyde re-iterates his belief that the standard of reasonableness "should refer to a person exercising the ordinary power of self-control over his passions which someone in his position is able to exercise and is expected by society to exercise."^[164] He added:

By position I mean to include all the characteristics which the particular individual possesses and which may in the circumstances bear on his power of control other than those influences which have been self-induced. Society should require that he exercise a reasonable control over himself, but the limits within which control is reasonably to be demanded must take account of characteristics peculiar to him which reduce the extent to which he is capable of controlling himself.^[165]

Interpretation of Camplin

4.100     Again, like Lord Hoffmann, Lord Clyde believes that Camplin^[166] should be read as recognising the relevance of characteristics of the defendant to the powers of self-control as well as to the gravity of the provocation.^[167] They both point out that the actual facts in Camplin were not primarily concerned with characteristics which affect the gravity of the provocation.^[168] Both judges emphasised that the words used in the suggested direction in Camplin have to be read in the factual context of the particular case.^[169]

Lord Slynn

4.101     The judgment of Lord Slynn is short. He relies on the endorsement of the New Zealand authority of McGregor^[170] in Newell^[171] as showing that the jury can also take characteristics relating to the mental state or personality of an individual into account, providing that they have the necessary degree of permanence.^[172]
4.102     Quoting Lord Bingham in Campbell,^[173] Lord Slynn pointed out^[174] that the body of Court of Appeal authority "represents a judicial response, born of everyday experience in criminal trials up and down the country, to what fairness seems to require."

Camplin

4.103     Lord Slynn regards the passage in Lord Diplock's judgment in Camplin,^[175] taken as a whole, as indicating that personal characteristics may be something the jury could take into account. He was certainly not limiting the characteristics which can be taken into account to age (or sex), in saying:

That he was only 15 years of age at the time of the killing is the relevant characteristic of the accused in the instant case.^[176]

Lord Hobhouse

4.104     Lord Hobhouse disagrees with the majority. In his view, it is "not acceptable to leave the jury without definitive guidance as to the objective criterion to be applied".^[177] It is not proper to leave the decision to the essentially subjective judgment of individual jurors as that is likely to lead to "idiosyncratic and inconsistent decisions".^[178] Non-specific criteria also create difficulties for the conduct of criminal trials, as they do not set the necessary parameters of admission of evidence or the relevance of argument.^[179]
4.105     Lord Hobhouse states that evidence of characteristics has relevance to only two questions: first, whether D in fact lost self-control (a preliminary factual question);^[180] and second, the gravity of the provocation. Lord Hobhouse subdivides the question whether a reasonable man would have done as the defendant did into its two elements: (i) the assessment of the gravity of the provocation; and (ii) the application of a standard of self-control. It is only in respect of the former that such evidence is relevant.
4.106     As to the standard of self-control, Lord Hobhouse does not accept that in respect of this issue the jury should apply a qualified standard to reflect the defendant's lack of capacity to exercise self-control. He says that the role of the question "whether a reasonable man would have done as the defendant did" is being misunderstood. Its purpose is to provide a standard of control.^[181]
4.107     Sections 2 and 3 clearly form two parts of a legislative scheme for dealing with defendants who should not be treated as fully responsible for the death they have caused. The provisions are capable of operating separately, although very often they operate in conjunction.^[182] Section 3 must be construed in its context. ^[183]
4.108     If the defendant suffered from an abnormality but the jury does not consider that it has substantially impaired his mental responsibility, he will not have a defence under section 2. This simply reflects the policy of the statute. It would be wrong to extend section 3 to provide a defence "advisedly denied him by section 2".^[184]

Camplin

4.109     Lord Hobhouse emphasised that Lord Diplock's formulation is based upon the assumption of the possession of ordinary powers of self-control and it is only in other respects that the defendant's abnormal characteristics are to be taken into account. Lords Morris, Fraser and Scarman agreed with the speech of Lord Diplock. Lord Simon equated the concept of a reasonable man with one with ordinary powers of self-control.^[185]

The term "reasonable man"

4.110     The function of the word "reasonable" in section 3 (and in a range of other criminal offences) is to prevent a legitimate defence from becoming a licence to commit crimes. It is to constrain what would otherwise be an exorbitant defence.^[186]
4.111     Lord Hobhouse is critical of the tendency of common lawyers to anthropomorthise concepts. When the phrase "reasonable man" is used the common lawyer immediately tries to visualise and define some physical human being with identified characteristics. In fact the phrase "reasonable man" is meant to identify a standard of self-control.^[187] That standard is as said in Camplin "such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today." That this is the purpose of the term "reasonable man" was confirmed by Lord Taylor in Dryden and by Lord Goff in Morhall.
4.112     Although used in the section, the term "reasonable man" is better avoided. "[A] person having ordinary powers of self-control" is a preferable phrase. The word "characteristics" should also be avoided.^[188]

The effect of other Court of Appeal judgments relied on by the majority

4.113     In a closely argued judgment Lord Hobhouse reasons that the judgments of Lord Lane in Newell,^[189] and of Lord Taylor in Ahluwalia,^[190] Dryden,^[191] Morhall,^[192] Humphreys^[193] and Thornton (No 2)^[194] do not favour the respondent's case. Rather, they contradict it.^[195]
4.114     In addition, Lord Goff's judgment in Morhall, binding authority in English law, distinguishes between matters going to the gravity of the provocation and the required standard of proof. In respect of the latter, it is not permissible to have regard to an abnormal trait of the defendant. While in line with the previous authorities, Morhall, moves away from regarding the judgment of North J in McGregor^[196] as the place to find all relevant answers.^[197] Lord Hobhouse regarded that case as one of the sources of confusion and the extent to which that case had been relied on in earlier cases to be ill-founded.^[198]
4.115     Finally, of the Court of Appeal judgment in Smith (Morgan), Lord Hobhouse said that though it appeared that the relevant cases from Newell onwards were cited, the analysis of them seemed to be based on Lord Steyn's dissenting judgment in Luc Thiet Thuan.^[199]

Lord Millett

4.116     Lord Millett also regards the defences of diminished responsibility (section 2 of the Homicide Act 1957) and provocation (section 3 of the Act) as distinct defences capable of overlapping.^[200] He draws attention to the very different rationales. The former, is that "You can't really call it murder: the poor man wasn't fully responsible for his actions". The latter, is that "You can't really call it murder. It was at least partly the victim's fault. Any one of us might have reacted in the same way if we had been in the defendant's shoes".^[201] The reference in the latter is to human frailty to which we are all subject.^[202]
4.117     The provocation must have been sufficient to cause a reasonable man to react in the same way. Only killings in response to grave provocation merit extenuation.^[203] When the law of provocation was revised in 1957, it was necessary to preserve some objective test of the sufficiency of the provocation that led D to lose self-control "[o]therwise, loss of self-control alone would be sufficient, for the accused could always say that he was provoked by something."^[204]

Reasonable Man

4.118     In common with most of their Lordships, Lord Millett is critical of the expression "the reasonable man". Despite a long and respectable ancestry in the law, "its use in section 3 is an unhappy one".^[205]
4.119     The term is not intended to invoke the concept of reasonable conduct, as it can never be reasonable to react to provocation by killing the person responsible. A defendant who pleads provocation does not claim to have acted reasonably. The claim is that the D acted unreasonably only because of the provocation. The point is that even normally reasonable people may lose their self-control and react unreasonably if sufficiently provoked. That human characteristic is what the defence of provocation acknowledges.
4.120     Lord Millett concludes that in this context, "the reasonable man" simply means a person with ordinary powers of self-control.^[206]

Characteristics

4.121     Lord Millett regarded it as unfortunate that the use of the word "characteristics" had diverted attention from the true nature of the inquiry.

The need for a morally defensible role

4.122     Lord Millett thought that the law had taken a wrong turning. It was time to restore a coherent and morally defensible role to the defence.

Camplin

4.123     Lord Millett disagreed with Lord Hoffmann and Lord Clyde who considered that "Lord Diplock's reference to age and sex of the accused was not meant to be exhaustive".^[207]

Criticism of approach taken in Court of Appeal in Smith (Morgan)

4.124     This approach requires the accused to be judged by his or her own reduced powers of self-control. It eliminates the objective element altogether and removes the only standard external to the accused by which the jury may judge the sufficiency of the provocation relied on. The introduction of a variable standard of self-control subverts the moral basis of the defence. It is also inconsistent with the terms of section 3 and with the requirement that D must not only have lost his or her self-control, but must have been provoked to do so. The latter requirement is illusory,^[208] if there is no basic standard against which it can be measured.

Disagreement with Lord Hoffmann's reformulation

4.125     Lord Millett respectfully disagreed with Lord Hoffmann's reformulation of the objective test: "whether the defendant's behaviour fell below the standard which should reasonably have been expected of him" if that meant D should be taken to have only his or her reduced powers of self-control. That would be inconsistent with Lord Diplock's reference to "the degree of self-control to be expected of the ordinary person with whom the accused's conduct is to be compared". In addition it would confuse the jury, as it is a meaningless question.^[209]

Agreement with Lord Hobhouse

4.126     Lord Millett agreed with Lord Hobhouse's analysis that the present position is the result of a combination of errors, among which must be numbered:

[T]he New Zealand jurisprudence, a mistaken desire to use the defence of provocation to cater for those who are mentally inadequate when this is properly the province of the defence of diminished responsibility, an inaccurate citation of the concluding words of section 3 which omits the words "anything done or said," and an unjustified extrapolation from Lord Diplock's speech in Camplin.^[210]

4.127     The decision of the Court of Appeal in Smith (Morgan) could not be adopted without departing from Morhall,^[211] a unanimous decision of the House of Lords less than five years old.^[212]

The question for the jury

4.128     The question for the jury is one of opinion, namely:

whether a person of ordinary self-control would have reacted as the accused reacted if he were similarly placed, that is to say, having the history, experiences, background, features and attributes of the accused.^[213]

4.129     Lord Millett explained that such a question would not require the jury to conjure up a picture of a hypothetical ordinary person or the judge to direct them which characteristics of the accused should be attributed to him or her and which should be disregarded. It might be easier to answer the question, he suggested, if it was reformulated to ask:

[W]ould or might the provocation have produced the like reaction from the accused if he had exercised normal powers of self-control.^[214]

4.130     Later, Lord Millett adapts the question to fit a battered woman who pleads provocation in defence:

[W]hether a woman with normal powers of self-control, subjected to the treatment which the accused received, would or might finally react as she did.^[215]

4.131     Such a question calls for the exercise of imagination rather than medical evidence, but it does not dispense with the objective element.

Limits to the scope of section 3

4.132     Lord Millett explained that he saw no difference where D's inability to exercise an ordinary degree of self-control proceeds from depressive illness rather than chronic alcoholism or bad temper. That might seem hard but those who cannot help themselves are intended to be catered for by the defence of diminished responsibility. According to Lord Millett,

[t]he defence of provocation should be reserved for those who can and should control themselves, but who make an understandable and (partially) excusable response if sufficiently provoked.^[216]

4.133     Agreeing with Professor Ashworth, Lord Millett said that:

Where an individual who is congenitally incapable of exercising reasonable self-control is provoked by a petty affront, his loss of self-control must be ascribed to his own personality rather than to the provocation he received.^[217]

Concluding remarks on the House of Lords judgment in Smith (Morgan)

4.134     The dissenting judgments each present comprehensive, logical arguments against allowing those characteristics which affect a persons level of self-control to be taken into consideration when deciding whether the defence of provocation should be available to a defendant. Essentially, their concern is that to do so, would remove the standard of control which is a vital element of the defence. Without that standard, the limits of the defence would be unclear and the defence could be exorbitant. If the jury is not given definitive guidance as to the objective criterion, idiosyncratic and inconsistent decisions are likely.
4.135     The dissenting judges do not find the expression "reasonable man" helpful.^[218] Both Lord Hobhouse and Lord Millett would substitute for the reasonable man, "a person having/with ordinary powers of self-control". Moreover, neither of them likes the word "characteristics".^[219]
4.136     Two of the three majority judgments are fully reasoned. The majority also regards the expression "reasonable man" as unhelpful. Lord Clyde would substitute "a person exercising the ordinary power of self-control over his passions which someone in his position is able to exercise and is expected by society to exercise."^[220] Lord Hoffmann regards the expression "reasonable man" as unworkable in the context of the defence of provocation. He says that to substitute ordinary for reasonable would not help. The confusion has arisen from marrying the concept of the reasonable man, with the rule in section 3 that no characteristic should be excluded from consideration by the jury. Certain characteristics currently attributed to the reasonable man would continue to be attributed to the "ordinary" man, causing confusion.^[221] The purpose of the expression "reasonable man" was to show that people must conform to an objective standard of behaviour. That principle of objectivity should be expounded in clear language rather than by opaque formulae.
4.137     The majority judgments justify removing a rigid objective standard from the defence on the basis that this is necessary if it is to be possible to reach a just, fair, verdict in every case. If the rigid objective measure was to remain, that could result in unfairness. Lord Clyde points out the injustice of assessing guilt in cases of homicide by applying a standard of behaviour which the defendant is incapable of attaining.^[222] Similarly, Lord Hoffmann draws attention to the case where the jury may think there was some characteristic of the accused which affected the degree of control which society could reasonably have expected of him or her and which it would be unjust not to take into account.^[223]
4.138     Thus, the difference between the majority and the dissenters here is whether it would be unjust to contain the defence of provocation in the way argued by Lords Hobhouse and Millett.
4.139     On the question of whether sections 2 and 3 of the 1957 Act form part of a legislative scheme for dealing with defendants who should not be treated as fully responsible for the death they have caused, the dissenting judges are firmly of the view that they do provide such a scheme, the former for those under a mental disability and the latter for those who acted under provocation. Lord Millett describes clearly the very different rationales between the two.^[224]
4.140     The majority judges dispute the suggestion that sections 2 and 3 provide such a scheme. They draw attention to the factual overlap which arises in various cases and argue that it requires the provocation defence to extend to cover cases where for mental reasons a defendant has reduced powers of self-control, though the mental condition would not afford a defence under section 2 (diminished responsibility). The dissenting judges do not deny that such factual overlap may arise (Lord Hobhouse pointed out that the provisions are capable of operating separately, although very often they operate in conjunction) but they argue that section 3 must be construed in its context. The availability of either defence depends on whether the facts demonstrate an arguable case that one, or other, or both of the defences is made out.

Academic commentary on Smith (Morgan)

4.141     The decision in Smith (Morgan) has been the subject of much academic commentary.^[225] Most but not all commentators are strongly critical of the reasoning of the majority, although some of those who criticise the reasoning are sympathetic to a liberalisation of the doctrine, at least while the mandatory sentence remains. The main criticisms made by commentators can be summarised under the following heads:

(1) statutory interpretation;

(2) previous authority;

(3) policy;

(4) internal inconsistency; and

(5) lack of clarity.

Statutory interpretation

4.142     Critics argue that the decision of the majority emasculates the requirement retained by section 3 that the provocation should have been "enough to make a reasonable man do as [the defendant] did" by introducing a variable standard according to the defendant's powers of self-control.

Previous authority

4.143     Critics^[226] argue while there was some ambiguity in parts of Lord Diplock's judgment in Camplin,^[227] there was no ambiguity in the later unanimous decision in Morhall.^[228] The reasoning of the majority in Smith (Morgan) was inconsistent with the reasoning in Morhall.^[229] However, none of the majority in Smith (Morgan) analysed Morhall and all three made only brief references to the case.

Policy

4.144     The criticisms made under this head relate to the foundation of the doctrine of provocation and the respective roles of the defences of provocation and diminished responsibility. They are succinctly expressed in an article by Russell Heaton as follows:

The provocation excuse should be a concession to extraordinary external circumstances not to the extraordinary internal make-up of the accused. The moral foundation for the extenuation is the necessity for very serious provocation. The more trivial the provocation, the more the defendant's reaction is attributable to his or her own personality and make-up and not to the provocative conduct. The more serious the provocative conduct, the more his or her retaliation is attributable to the provocation rather than his or her own deficiencies. That is why a distinction should be made between assessing the gravity of the provocation and assessing the standard of self-control required. If the reaction is essentially due to the internal character of the accused, his or her excusatory claim, if any, should sound in diminished responsibility. That is the proper defence for the abnormal. 'The defence of provocation is for those who are in a broad sense mentally normal'^[230] but who snap under the weight of very grave provocation.^[231]

4.145     Professor Sir John Smith similarly made the point that where an abnormality of mind was insufficient to give rise to a defence of diminished responsibility, it cannot have been Parliament's intention that it should enable a defence of provocation to be advanced by a defendant who would otherwise not have been able to do so. He also asked rhetorically:

If the crying of a baby can constitute provocation (and the judge must not tell the jury that it cannot – Lord Hoffmann referring to Doughty^[232]) why not a young woman flaunting her charms in sight of a sexual psychopath?^[233]

Internal inconsistency

4.146     Several scholars have pointed to a contradiction between Lord Hoffmann's interpretation of section 3 and his suggested directions to a jury. On the one hand he said that

it would not be consistent with section 3 for the judge to tell the jury as a matter of law that they should ignore any factor or characteristic of the accused in deciding whether the objective element of provocation had been satisfied^[234]

because "the purpose of section 3 was to legitimate the normative role of the jury"^[235]. On the other hand, to lessen the risk of a jury reaching an inappropriate verdict, he referred with apparent approval to a suggestion of giving a direction to the jury that characteristics such as jealously and obsession should be ignored.^[236] He also suggested directing the jury that a tendency to violent rages is a defect in character rather than an excuse, and that a person is not entitled to rely on his own violent disposition.

Lack of clarity

4.147     There has been strong criticism that the approach of the majority leaves the jury with no fixed standard of self-control to measure the defendant against and with no clear guidelines. Professor John Gardner and Timothy Macklem described the result as,

an evaluative free–for-all in which anything that induces sympathy by the same token helps to excuse, and in which little more than lip service is paid to the all-important objective (impersonal) standard of the reasonable person in section 3… .^[237]

4.148     Among those critics who are sympathetic to the liberalism of the decision, there is also concern about the way in which it may work. Susan Edwards has applauded the fact that the ruling may assist battered women who kill, and who have previously found themselves outside the ambit of provocation, but expressed concern that

at the same time the exponential expansion of the objective test has the facility to include those very morally repugnant and reprehensible characteristics which Lord Hoffmann in the leading judgment in Smith and Lord Taylor in the Court of Appeal in Morhall … reasoned should be specifically excluded. The fears that the reasonable man may become cloned as the accused are real.^[238]

4.149     She welcomed Lord Hoffmann's abhorrence of male proprietorialness as constituting a reasoned ground for justifiable rage, but was concerned that the defence of provocation,

will be shaped by the characteristics of ethnicity, gender, sexual orientation, class etc of jury members, which taken together will determine the legitimacy of a loss of self-control to the standard of using deadly force. This may mean that the jury continues to treat male proprietorialness as a sufficient ground … . Already, it can be observed how the judiciary has created its own anthropomorphic man of provocation. Leaving the question to the jury's subjectivism may produce a reasonable man who is racist, sexist, and ethnocentric.^[239]

Our views

4.150     We consider that the academic criticisms made of the reasoning of the majority in Smith (Morgan) have considerable force.

The application of Smith (Morgan)

Introduction

4.151     In this section the decisions in three cases will be considered. In R (o/a Farnell) v The Criminal Cases Review Commission,^[240] the Administrative Court applied Smith (Morgan) and quashed the decision of the Commission not to refer Farnell's application to the Court of Appeal. In Weller,^[241] the Court of Appeal dismissed an appeal on the ground that a failure by the trial judge to specifically direct the jury to take into consideration the unusually possessive and jealous nature of the appellant constituted a mis-direction. In Paria v The State,^[242] the Privy Council found no need to decide which decision should be followed, Luc Thiet Thuan^[243] (Privy Council) or Smith (Morgan)^[244] (House of Lords) because whichever approach was taken the appellant's arguments on provocation would fail.

Provocation cases decided since Smith (Morgan)

4.152     In R (o/a Farnell) v The Criminal Cases Review Commission^[245] the claimant had been upset by the barking of a dog belonging to his neighbours (the deceased and his wife). When the claimant confronted the deceased in the street about this, his protestations were summarily dismissed. The claimant went to his car and got a crow bar. In evidence he said that this was to show his neighbours, so that they would take him seriously. However, as he approached them they both jeered and said: "What are you going to do with that?" The claimant then struck and killed the deceased.^[246]
4.153     At the claimant's trial in 1996 there was psychiatric evidence that he was suffering from a depressive illness which "severely restricted his capacity to control his actions". The defence, however, expressly disavowed the defence of provocation and relied instead on that of diminished responsibility. The judge nevertheless left the issue of provocation to the jury but, in his directions on provocation, did not refer to any aspect of the psychiatric evidence. The judge left the issue of provocation to the jury because it was his duty to do so. In view of the fact that the defence explicitly accepted that no reasonable person might have reacted as the accused did, the judge added that the jury would, perhaps, not be troubled by consideration of the issue of provocation for very long.
4.154     On the application for judicial review, the Administrative Court held that the judge's directions to the jury on provocation had been inadequate. Mitchell J stated that "[t]he jury would have received a very different direction as a result of Smith …"^[247] and quashed the decision of the Commission not to refer the case to the Court of Appeal.
4.155     In both Smith (Morgan) and the instant case the defendant had been suffering from a depressive illness which according to the expert evidence impacted on his powers of self-control. In 1996, experienced leading counsel for Farnell had "expressly disavowed" provocation as a defence, on the facts of the case. In 2003, the Administrative Court found that on the state of the law in 1996, there had arguably been a mis-direction on provocation. Mitchell J continued:

The decision of the House of Lords in Smith puts beyond doubt the relevance of the depressive illness to the issue of provocation in this case.^[248]

4.156     Weller^[249] concerned an appellant who had killed his former girlfriend after she told him that she wished to end their relationship. There was evidence that this was because he was unduly possessive and jealous. Three days after they had first split up, they returned together to the flat. During a heated argument over her conduct with other men the appellant grabbed her by the throat and strangled her. He was convicted of murder. The issue on appeal was the adequacy of the directions to the jury on provocation.
4.157     Defence counsel had invited the trial judge to make specific reference to the defendant's unusually possessive and jealous nature in her summing up to the jury. She declined to do so specifically, preferring a general direction which required the jury to consider all the circumstances, making allowances for emotions and the like, and concluded with the need to consider what society expects of a man like this defendant.
4.158     The conviction was upheld. Mantell LJ stressed that the trial judge had not removed obsessiveness and jealousy from the jury's considerations.^[250] He described Smith (Morgan) as having established that:

the question whether the defendant should reasonably have controlled himself is to be answered by the jury taking all matters into account. That includes matters relating to the defendant, the kind of man he is and his mental state, as well as the circumstances in which the death occurred. The judge should not tell the jury that they should, as a matter of law, ignore any aspect. He may give them some guidance as to the weight to be given to some aspects, provided he makes it clear that the question is one which, as the law provides, they are to answer and not him.^[251]

4.159     The court commended the approach in Smith (Morgan):

[It] has the considerable advantage that it is unnecessary to determine whether what has been called a "characteristic" of the accused is an eligible characteristic for the purposes of the second element in provocation, the objective element, or is one of which no account should be taken … . It is all a matter for the jury.^[252]

4.160     In Paria v The State^[253] the appellant had killed three women, the mother of his two children, her mother and her sister, after a row. The row developed when the appellant, whose father was ill with cancer, tried to arrange for the children to stay the night with him and his father.
4.161     On appeal to the Privy Council it was submitted that the trial judge ought to have directed the jury that they should consider the appellant's evidence that he had been depressed. It was held that whether one applied the test as laid down by the Privy Council in Luc Thiet Thuan^[254] or that in Smith (Morgan), the appellant's argument on provocation must fail.^[255] It was thus unnecessary to decide which of the two cases ought to be followed in the Privy Council.^[256] The reasons for rejecting the appellant's arguments on provocation were twofold:

(1) The appellant's reaction to his father's cancer was an entirely normal and natural reaction. It was not a mental illness, as opposed to the clinical depression in Smith (Morgan), and was not, therefore, a characteristic.

(2) Even if it was a "characteristic" there was no evidence that it affected the way the appellant reacted when he killed the three women. It would have been "sheer speculation" on the part of the jury if they had taken it into account in relation to either the subjective or the objective test.

Problems with the partial defence of provocation

The defence is inherently contradictory

4.162     Introduced as a concession to human frailty, this partial defence has internal contradictions. It suffers the defects of compromise. It raises the question whether a reasonable person should ever respond to provocation by killing.^[257] The "objective" requirement, "whether a reasonable man would have done as the defendant did", has been considered by the House of Lords / Privy Council four times in the last twenty-five years, culminating in Smith (Morgan)^[258] with a 3:2 split. This demonstrates fundamental problems with the concept of the "reasonable man".

The wide meaning of "provocative" conduct

4.163     The fact that under section 3 of the 1957 Act there is no limit to what conduct is capable of provoking a defendant to kill means that completely innocent conduct of the deceased might be regarded as provocation by the defence. This is contrary to one of the fundamental rationales of the defence,^[259] which is that the victim "contributed" to the defendant's lethal loss of temper.^[260]

The defence of provocation elevates the emotion of sudden anger above emotions of fear, despair, compassion and empathy. Is it morally sustainable for sudden anger to found a partial defence to murder?

4.164     It is questionable whether, in moral terms, a killing is necessarily less culpable when performed in anger as a result of provocation. Indeed there is an argument that it is morally unsustainable for anger and sudden loss of self-control to found a defence.
4.165     The idea that a "reasonable person" could kill when seeing red is one that jars. Even as a partial defence, it shows a degree of acceptance of killing in those circumstances. Many would argue that it is no longer "acceptable" to kill in anger in the 21^st century, even though provocation emerged as a defence in 17^th and 18^th centuries.

Sexual bias

4.166     By providing a partial defence where the response to provocation is to kill in sudden anger but not where it is to kill in a planned way, this defence is seen to favour those men who react in violent anger, over fearful women.
4.167     In respect of defendants with battered woman syndrome, provocation may not be a suitable defence because the killer is reacting out of fear or despair. There is no defence of killing out of fear or despair.

It is difficult to distinguish revenge killings, so as to exclude them from this defence

4.168     The courts have stretched the subjective requirement, "loss of self-control", initially in order to deal with battered woman syndrome cases. The wider measure for loss of self-control when applied in other cases, such as Baille,^[261] raises the question of whether the scope of the defence is too wide, or potentially so. How do gangland killings stay out of the scope of the defence?

The defence blames the victim of murder

4.169     Provocation unduly makes the deceased the "defendant". It blames the victim for the defendant's inability to exercise self-control. In court the deceased cannot answer defence assertions.

Subjectivisation of the reasonable man

4.170     The effect of the majority judgment in Smith (Morgan)^[262] is significantly to reduce the threshold of self-control that individuals are entitled to demand of all members of society.

Practical difficulties with the operation of the defence of provocation

Difference in relation to burden of proof for defence of diminished responsibility

4.171     The fact that the burden of proof remains on the Crown in cases of provocation but is borne by the defence in relation to diminished responsibility may cause confusion, or anomolies, in cases where a defendant runs both defences.

Obligation on judge to leave issue of provocation in cases where the defence do not seek to rely on the defence

4.172     It is confusing to juries that in a case in which the defendant's reaction of killing was not remotely a reasonable thing to do, and the defendant does not seek to argue that it was, the judge nevertheless leaves the issue of provocation to them. The judge is obliged to do so whenever there is evidence that the words or conduct of the deceased may have caused the defendant to lose self-control suddenly.

Conclusion

4.173     For the reasons which have been identified in this Part, we regard the law of provocation in England and Wales as profoundly unsatisfactory. In the following Part we will carry out a review of the law on provocation in other common law jurisdictions. In the final part of this paper (Part XII) we identify options for reform, together with the arguments associated with each option. We invite views from consultees on the options discussed in Part XII.

Note 1    In Duffy [1949] 1 All ER 932, 933 Lord Goddard approved Devlin J’s direction at first instance, adding, “it might well stand as a classic direction”. The direction read: Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. (at p 932). Note, for this definition to continue to apply after enactment of the Homicide Act 1957, it is necessary to delete the third phrase, and insert “done or words spoken” in its place.    [Back]

Note 2    In this Part referred to as “the 1957 Act”.    [Back]

Note 3    Ordinarily by the deceased.    [Back]

Note 4    See para 126 of the Royal Commission on Capital Punishment 1949 – 1953 Report (1953) Cmd 8932, where the law is summarised as follows: Two fundamental conditions must be fulfilled in order that provocation may reduce to manslaughter a homicide which would otherwise be murder. First, the provocation must be gross and must be such as might cause a reasonable man to lose his self-control and use violence with fatal results. [Lesbini [1914] 3 KB 116; Mancini v DPP [1942] AC 1] Secondly, the accused must in fact have been deprived of his self-control under the stress of such provocation and must have committed the crime while so deprived. [Mancini v DPP and Holmes v DPP [1946] AC 588, 597] It is for the Judge to decide whether, on a view of the evidence most favourable to the accused, there is sufficient material for a reasonable jury to form the view that he acted under such a provocation. If the Judge is satisfied that there is no sufficient material, it is his duty to direct the jury as a matter of law that the evidence cannot support a verdict of manslaughter. It is to be noted that the first condition in fact contains two distinct ingredients.     [Back]

Note 5    Even though section 3 is arguably open to an interpretation which includes the three ingredients. See T Macklem and J Gardner, “Provocation and pluralism” (2001) 64 MLR 815.    [Back]

Note 6    (Emphasis added).    [Back]

Note 7    DPP v Camplin [1978] AC 705, 716, thus reversing the House of Lords decision in Holmes v DPP [1946] AC 588, in which it was held that the appellant could not rely on a verbal confession of adultery as constituting provocation.    [Back]

Note 8    DPP v Camplin [1978] AC 705, 716.    [Back]

Note 9    Ibid, per Lord Diplock.    [Back]

Note 10    Reversing Mancini v DPP [1942] AC 1.    [Back]

Note 11    Paras 4.39 – 4.68.    [Back]

Note 12    [2001] 1 AC 146.    [Back]

Note 13    The Judicial Studies Board specimen direction to the jury of April 2003 as to the “special meaning” meaning of provocation in this defence is as follows: A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been [said and/or done] by [X and/or others].    [Back]

Note 14    [1995] 4 All ER 987.     [Back]

Note 15    (1986) 83 Cr App R 319.    [Back]

Note 16    [2001] 1 AC 146.    [Back]

Note 17    Holmes v DPP [1946] AC 588, 600.    [Back]

Note 18    Palmer [1913] 2 KB 29, 31.    [Back]

Note 19    Greening [1913] 3 KB 846, 849.    [Back]

Note 20    The difference between the two is clearly illustrated by the case of Smith (Morgan) [2001] 1 AC 146. The psychiatric evidence was insufficient for the defendant to prove diminished responsibility under section 2 of the 1957 Act. On appeal to the Court of Appeal, a verdict of manslaughter was substituted for murder on the ground of provocation. The evidence of the defendant’s mental impairment was a characteristic to be attributed to the notional reasonable man for the purposes of the defence of provocation. The House of Lords dismissed the Crown appeal. The discrepancy in burdens may result in defendants making purely tactical choices as to which defence to rely upon. The breadth of the provocation defence since Smith (Morgan) is such that it may be more attractive for a defendant to run the provocation defence. See A Ashworth ‘Commentary’ [2003] Crim LR 552 at p 552.    [Back]

Note 21    Smith and Hogan, Criminal Law (10th ed 2002) p 364. For example, see the ruling of the trial judge in Cocker [1989] Crim LR 740.    [Back]

Note 22    Burgess [1995] Crim LR 425, 426; Kulkit Singh Dhillon [1997] 2 Cr App R 104, 114 and Stewart [1995] 4 All ER 999, 1006–1007.    [Back]

Note 23    In Cox [1995] Crim LR 741, the Court of Appeal said that for the future “it must be made clear that both counsel have an obligation to the court. If it appears to either counsel that there is evidence on which the jury could find provocation, they should regard it as their duty to point it out to the judge, before he sums up” (at p 741). In R (o/a Farnell) v The Criminal Cases Review Commission [2003] EWHC 835, the Divisional Court quashed the decision of the Commission not to refer the case to the Court of Appeal. It remitted the case to the Commission with a direction that “it should be reconsidered having regard to the approach we have endeavoured to identify in our judgments” (at para 40). The Divisional Court emphasised (at para 33) that the question in section 3, whether the provocation was enough to make a reasonable man do as he did, is “one of opinion not law and the relevant opinion is that of the jury” (see DPP v Camplin [1978] AC 705, 716). The Court found that the trial judge had not given an adequate direction on provocation. The difficult question, which is not fully resolved by the judgment of the Divisional Court, relates to the approach to be taken in the Court of Appeal where the ground of appeal relates to fresh evidence relating to provocation. It can be expected that the Commission will refer this case to the Court of Appeal where the approach to be taken in such a case will be clarified.    [Back]

Note 24    Mawgridge (1707) Kel J 119, 130–137; 84 ER 1107. See Part III, paras 3.15 – 3.16.    [Back]

Note 25    Kirkham (1837) 8 C & P 115, 119. This is discussed by Lord Hoffmann in Smith (Morgan) [2001] 1 AC 146.    [Back]

Note 26    See Smith (Morgan) [2001] 1 AC 146, 160, per Lord Hoffmann.    [Back]

Note 27    Oneby (1727) Ld Ryam 1485; 92 ER 465. In this case it was stated that to reduce a crime from murder to manslaughter the provocation had to arouse: [S]uch a passion as for the time deprives him of his reasoning faculties; for if it appears, reason has resumed its office … the law will no longer under that pretext of passion exempt him from the punishment he justly deserves.    [Back]

Note 28    [1949] 1 All ER 932. Approved in numerous cases, particularly Whitfield (1976) 63 Cr App R 39, 42.    [Back]

Note 29    Ibid, at p 932E.    [Back]

Note 30    Ibid, at p 932H.    [Back]

Note 31    [1978] AC 705.    [Back]

Note 32    Ibid, at p 716. (emphasis added)    [Back]

Note 33    (1982) 74 Cr App R 154, 160.    [Back]

Note 34    [1992] 1 All ER 306; Thornton (No 2) [1996] 1 WLR 1174, 1181.    [Back]

Note 35    [1992] 4 All ER 889, 895.    [Back]

Note 36    Ibid.    [Back]

Note 37    Ahluwalia [1992] 4 All ER 889.    [Back]

Note 38    Ibid.    [Back]

Note 39    Ibid, at pp 895–896.    [Back]

Note 40    Ibid, at p 896.    [Back]

Note 41    Ibid, at p 896.    [Back]

Note 42    [1995] Crim LR 739.    [Back]

Note 43    Ibid, at pp 739–740.    [Back]

Note 44    [1992] Crim LR 193.    [Back]

Note 45    Ibid, at p 193.    [Back]

Note 46    (1982) 74 Cr App R 154.    [Back]

Note 47    Ibid, at p 159.    [Back]

Note 48    Ibid, at pp 159–160.    [Back]

Note 49    Ibid, at p 160.    [Back]

Note 50    [1995] 4 All ER 987.    [Back]

Note 51    Ibid, at p 998: [T]he evidence here was overwhelming that the appellant had announced his intention a considerable time before the event; that he had told people what he intended to do; that he had prepared himself for the occasion. He knew that the council were coming. He had hoped that the notices he had put upon his gate might repel them. When those notices did not do that, he went into his premises, got his gun which was already loaded, came out with it and … pointed the gun at [the deceased] and steadily taking aim discharged it into his chest. In those circumstances, there was nothing to suggest that he did lose his self-control … his conduct afterwards strongly indicated that he had a plan to carry out; that there were people he was going to attack; and that he was determined, if he could, to attack them.    [Back]

Note 52    Part I, paras 1.50–1.51.    [Back]

Note 53    [1995] Crim LR 739.    [Back]

Note 54    Ibrams (1981) 74 Cr App R 154.    [Back]

Note 55    See Cocker [1989] Crim LR 740, in which the defendant suffocated his incurably ill, severely incapacitated wife who repeatedly begged him to kill her. The Court of Appeal found that the applicant “gave way to his wife’s entreaties and far from losing his self-control acceded to what she wished to happen” (when he suffocated her) and dismissed the application for leave to appeal against conviction for murder.    [Back]

Note 56    [1995] Crim LR 739.    [Back]

Note 57    (1913) 9 Cr App R 139, in which the appellant had been convicted of murder of the woman with whom he cohabited, who he killed two hours after she said she was going to live with someone else. The jury made “a strong recommendation to mercy on the ground of his mental deficiency”. The appellant’s argument that if the provocation was sufficient “in that particular case of mental deficiency, to cause a state of irresponsibility in which a man did not realise the nature and quality of the act he committed, then the provocation, even if only by words, was sufficient to reduce the crime to manslaughter” was rejected. It was held, per Darling J, at p 141: “There is no authority for such a proposition, and this Court cannot make laws; that is the function of Parliament”.    [Back]

Note 58    [1914] 3 KB 1116, in which the applicant shot dead the attendant at a rifle range whose remarks he had found offensive. The hot tempered, sensitive applicant “was not of good mental balance though not insane in the proper legal sense of the term” at p 1119, per Lord Reading CJ.    [Back]

Note 59    Mancini v DPP [1942] AC 1, 9.    [Back]

Note 60    Bedder v DPP [1954] 1 WLR 1119.    [Back]

Note 61    See ibid, at p 1121: no distinction is to be made in the case of a person who, though it may not be a matter of temperament, is physically impotent, is conscious of that impotence, and therefore mentally liable to be more excited unduly if he is ‘twitted’ or attacked on the subject of that particular infirmity.    [Back]

Note 62    See A Ashworth, “The Doctrine of Provocation” (1976) 35 CLJ 292 at pp 298–314.    [Back]

Note 63    [1978] AC 705.    [Back]

Note 64    Ibid, at p 717.    [Back]

Note 65    Ibid, at p 718E–F. This is the test that was codified in the Draft Criminal Code Bill proposed in Criminal Law: A Criminal Code for England and Wales (1989) Law Com No 177, vol 1, clause 58 which provides: A person who, but for this section, would be guilty of murder is not guilty of murder if — a) he acts when provoked (whether by things done or by things said or by both and whether by the deceased person or by another) to lose his self-control; and b) the provocation is, in all the circumstances (including any of his personal characteristics that affect its gravity), sufficient ground for the loss of self-control.    [Back]

Note 66    Lord Diplock described this term as an “apparently inapt expression, since powers of ratiocination bear no obvious relationship to powers of self-control.” (Ibid, at p 716G) He later described the reasonable man as “not exceptionally excitable of pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society today”. (at p 717A)    [Back]

Note 67    Ibid, at p 726F.    [Back]

Note 68    Homicide Act 1957, s 3.    [Back]

Note 69    DPP v Camplin [1978] AC 705, 726C, per Lord Simon, who commented that: The effect of an insult will often depend entirely on a characteristic of the person to whom the insult is directed.    [Back]

Note 70    Ibid, at pp 717G–718A.    [Back]

Note 71    [2001] 1 AC 146.    [Back]

Note 72    These characteristics are summarised in this way by Lord Taylor in Morhall [1993] 4 All ER 888, 892.    [Back]

Note 73    [1978] AC 705.     [Back]

Note 74    Ibid, at p 717, per Lord Diplock, who continued: “A crucial factor in the defence of provocation from earliest times has been the relationship between the gravity of provocation and the way in which the accused retaliated, both being judged by the social standards of the day.”    [Back]

Note 75    Ibid, at p 725.    [Back]

Note 76    Ibid.    [Back]

Note 77    [1995] 4 All ER 987, 997. This case concerned an eccentric obsessional man who shot dead a planning officer following a dispute concerning buildings erected on his land. The fact that the appellant had announced his violent intentions a considerable time before the event and prepared himself for the occasion was evidence that the appellant had not lost self-control. The appeal against conviction was dismissed. (see p 998)    [Back]

Note 78    [1962] NZLR 1069, 1081.    [Back]

Note 79    In DPP v Camplin [1978] AC 705, Lord Simon (at p 727) expressed the opinion that English law was “substantially the same” as section 169(2) of the New Zealand Crimes Act 1961 as explained in McGregor [1962] NZLR 1069. Lord Goff points out in Luc Thiet Thuan [1997] AC 131, 142 that neither the New Zealand Act nor McGregor receive any mention in the other judgments of the court in Camplin. Nonetheless, Lord Simon’s mention, in an imprecise way, would appear to have provided the genesis of the judgment of the English Court of Appeal in Newell (1980) 71 Cr App R 331, 340, per Lord Lane CJ, who describes the direction as “impeccable”. See also Ahluwalia [1992] 4 All ER 889, 897–898, per Lord Taylor CJ; Morhall [1993] 4 All ER 888, 892, per Lord Taylor CJ; Dryden [1995] 4 All ER 987, 997, per Lord Taylor CJ.    [Back]

Note 80    McGregor [1962] NZLR 1069, 1081.    [Back]

Note 81    [1997] AC 131, 142.    [Back]

Note 82    [1992] 2 NZLR 550.    [Back]

Note 83    [1992] 4 All ER 889.    [Back]

Note 84    [1995] 4 All ER 987.    [Back]

Note 85    [1995] 4 All ER 1008.    [Back]

Note 86    [1993] 4 All ER 888.    [Back]

Note 87    Para 4.39.    [Back]

Note 88    Morhall [1993] 4 All ER 888, 892.    [Back]

Note 89    [1996] 1 AC 90, 97.    [Back]

Note 90    [1996] 1 AC 90 (HL) and [1993] 4 All ER 888 (CA).    [Back]

Note 91    [1996] 1 AC 90, 97.    [Back]

Note 92    Concerning alcoholism as a characteristic, see Holley v A-G [2003] JCA 013. The Jersey Court of Appeal held chronic alcoholism to be a relevant characteristic. The Privy Council granted leave in July 2003 and has not yet considered the appeal.    [Back]

Note 93    [1993] 4 All ER 888, 893.    [Back]

Note 94    Ibid, at p 894.    [Back]

Note 95    [1996] 1 AC 90, 97.    [Back]

Note 96    Ibid, at p 97G.    [Back]

Note 97    Ibid, at pp 97–98.    [Back]

Note 98    Ibid, at p 98.    [Back]

Note 99    Ibid, at p 100.    [Back]

Note 100    Ibid, at p 100. Lord Goff added that the drunkenness of the defendant was rightly excluded as irrelevant in Newell (1980) 71 Cr App R 331. See also n 92 above.    [Back]

Note 101    [1995] 4 All ER 1008.    [Back]

Note 102    [1995] 4 All ER 987.    [Back]

Note 103    Lord Taylor said: “[T]his was a characteristic—the obsessiveness on the part of the appellant and his eccentric character—which ought to have been left to the jury for their consideration. We consider that they were features of his character or personality which fell into the category of mental characteristics and which ought to have been specifically left to the jury.” Ibid, at p 998.    [Back]

Note 104    [1995] 4 All ER 1008.    [Back]

Note 105    [1995] 4 All ER 1008, 1022.    [Back]

Note 106    Ibid, at pp 1023–1024.    [Back]

Note 107    [1996] 1 WLR 1174.    [Back]

Note 108    Ibid, at p 1181–1182.    [Back]

Note 109    Ibid, at p 1183.    [Back]

Note 110    The crucial first question was whether the appellant herself was caused suddenly to loose her self-control. A re-trial was ordered. Ibid, at pp 1183–1184.    [Back]

Note 111    [1997] AC 131, which concerned a defendant who admitted killing the victim and relied on defences of provocation and diminished responsibility. The judge directed the jury that medical evidence that the defendant suffered from brain damage and was prone to respond to minor provocation by losing his self-control and acting explosively was relevant to the defence of diminished responsibility only.    [Back]

Note 112    [1997] AC 131, p 156E–H.    [Back]

Note 113    Ibid, at pp 156H–157B.    [Back]

Note 114    [1997] 1 Cr App R 199.    [Back]

Note 115    Ibid, at p 207.    [Back]

Note 116    Ibid, at pp 207.    [Back]

Note 117    Smith (Morgan) [2001] 1 AC 146, 155E–F.    [Back]

Note 118    Ibid, at p 173C.    [Back]

Note 119    In respect of this, Lord Millett said that the question for the jury is: whether a person of ordinary self-control would have reacted as the accused reacted if he were similarly placed, that is to say, having the history, experiences, background, features and attributes of the accused. (at p 210A)    [Back]

Note 120    [2001] 1 AC 146, 173B–D, per Lord Hoffmann; 179B–E, per Lord Clyde; 205E, per Lord Hobhouse; 208A–D and 209G, per Lord Millett. This strong condemnation from the judiciary suggests that reintroducing the concept in any reform recommendation will be inadvisable.    [Back]

Note 121    That this is the effect of section 3 is recognised both in the majority and the dissenting judgments. The 1957 Act also removed the requirement of strict proportionality found in Mancini v DPP [1942] AC 1. Once ‘words’ were sufficient for legally recognised provocation, strict proportionality could have no place in the law, or certainly could not be a legal prerequisite for the defence to operate. See also paras 4.1 – 4.7 above regarding the changes effected by the 1957 Act.    [Back]

Note 122    [2001] 1 AC 146, 157H.    [Back]

Note 123    Ibid, at p 162G–H.    [Back]

Note 124    Ibid, per Lord Hoffmann.    [Back]

Note 125    Ibid, at p 163B–C. This is to be contrasted with the view of Lord Hobhouse who believes that it is not acceptable to leave the jury without definitive guidance as to the objective criterion to be applied. Lord Hobhouse added: “It is not proper to leave the decision to the essentially subjective judgement of the individual jurors who happen to be deciding the case”. (at p 206B–C) Taken to its logical conclusion, Lord Hoffmann’s approach would forbid reference to characteristics such as racism. What of others such as sexism?    [Back]

Note 126    Ibid, at p 163B–E.    [Back]

Note 127    Ibid, at pp 165A–166H.    [Back]

Note 128    Ibid, at pp 167B–169G.    [Back]

Note 129    This is the view taken by Lord Hobhouse at pp 189G–192G and by Lord Millett at p 214E–F.    [Back]

Note 130    This apparently clear distinction between partial excuses and justifications is far from straightforward. Diminished responsibility has usually been understood to be an excusatory defence, but provocation appears to have elements of excuse (“I lost my temper”) and elements of justification (“it was reasonable for me to do so and to kill in these circumstances”). The distinction between the approaches could be important in distinguishing between the defences and in delineating their boundaries. With diminished responsibility, D is arguably denied, on medical grounds, the ability to exercise effective powers of control. This is seen as a classic type of excuse. With provocation, D does have the ability to exercise his control (albeit perhaps a reduced capacity), but he fails to exercise that control. See J Dressler “Partial Justification or partial excuse?” (1988) 51 MLR 467 (Dressler suggests it is uncertain whether the provocation defence is one of justification or excuse) and F McAuley “Anticipating the past: The defence of provocation in Irish Law” (1987) 49 MLR 133 (McAuley emphasises the justificatory nature of the provocation defence, relying on the fault of the victim).     [Back]

Note 131    [2000] 2 NZLR 385. Lord Hoffmann gives this example at p 167A. D killed a neighbour who produced a knife in a non-threatening way. D was a woman with a history of violence against her, suffering from post–traumnatic stress disorder. The Court of Appeal agreed that it was very difficult to distinguish between the gravity of the provocation (D’s previous experience of violence making the mere production of a knife a graver provocation than otherwise) and D’s capacity for self-control (which had been affected by the psychological stress of the violence). However, in Lord Hobhouse’s view, the facts of that case should not give rise to the same problem in English Law. The conundrum raised in that case is, he says, “peculiar to New Zealand and the ‘mental gymnastics’ complained of by Tipping J would not be required by English Law” (p 187A). Presumably this is because in England diminished responsibility is available as a defence under s 2 of the 1957 Act, which is not the case in New Zealand.     [Back]

Note 132    S Yeo, Unrestrained killings and the law (1998) p 61. That may be so. However, the jury might not be puzzled by the restricted relevance of characteristics, if they understood, as Lord Hobhouse said at p 195G, that a standard level of self-control is required by the law in order to “impose a constraint upon the availability of what would otherwise be liable to become an exorbitant defence”.     [Back]

Note 133    That there will be overlap in some cases between these defences is not denied by those in dissent, see for example Lord Hobhouse at 192G where he refers to the fact that the defences of diminished responsibility and provocation can very often operate in conjunction.     [Back]

Note 134    Ibid, at p 169C.    [Back]

Note 135    (1990) 171 CLR 312.    [Back]

Note 136    [2001] 1 AC 146, 169G. In Weller [2003] EWCA Crim 815, Mitchell J refers to this part of Lord Hoffmann’s judgment noting, at para 12, that “Lord Hoffmann is here simply restating a suggestion and not commending an approach”. There is a problem with the suggestion that Lord Hoffmann appears to support. What if there is medical evidence to the effect that the defendant had a morbidly jealous or obsessional personality as a result of some form of illness or personality disorder? It is unclear on Lord Hoffmann’s approach if this should be subject to direction or whether the jury should be allowed to make up their own mind. Professor Ormerod argues that the reference to Stingel by Lord Hoffmann exposes the weakness of his conclusion saying: “His Lordship is prepared to abdicate responsibility to the jury for setting moral benchmarks, but only to a point. By making this reference to Stingel, his Lordship acknowledges that with some issues the jury’s moral rigour is not to be trusted. In terms of principle and practice it is not obviously easier to identify this cut off point than to distinguish which characteristics pertain only to the gravity of the provocation.”    [Back]

Note 137    [2001] 1 AC 146, 169A.    [Back]

Note 138    Ibid, at p 169B–C.    [Back]

Note 139    (!980) 71 Cr App R 331.    [Back]

Note 140    [1992] 4 All ER 889.    [Back]

Note 141    [1995] 4 ALL ER 987.    [Back]

Note 142    [1997] 1 Cr App R 199, 207.    [Back]

Note 143    [1992] 4 All ER 889.    [Back]

Note 144    The fresh psychiatric evidence before the Court of Appeal had not been before the Crown Court. If it had been Lord Taylor said that different considerations might have applied (ibid, at p 898). However, the appeal was allowed on the basis that in view of the fresh psychiatric evidence there might well have been an arguable defence of diminished responsibility, which was not put before the jury (at pp 899–890). A re-trial was ordered.    [Back]

Note 145    [1995] 4 All ER 987.    [Back]

Note 146    The force of Lord Hoffmann’s reliance on these cases is arguably quite weak. It was implicit in these rulings of Ahluwalia and Dryden that the objective approach (subject to Camplin) applied in relation to characteristics not affecting the gravity of the provocation. There was, following Morhall, no reason to suggest that counsel should seek to include in a jury direction all the defendant’s characteristics in respect of all aspects of the objective limb.    [Back]

Note 147    [2001] 1 AC 146, 170F–G. However, on the basis of a different analysis, it will be seen that Lord Hobhouse regards the first three of these cases as being contrary to Smith’s argument. Of Newell, he said at p 199D “the reasoning does not support the respondent’s argument here: it is an authority against the respondent” as the alcoholism of Newell was not relevant to the provocation (a disparaging remark about the defendant’s former young girlfriend). Ahluwalia is discussed at pp 200F–201A and Dryden from p 201B–G. Of Campbell, Lord Hobhouse explained at 204D-F that in that case there is no discussion of the authorities. It was on an assumption that the dissenting judgment of Lord Steyn in Luc Thiet Thuan [1997] AC 131 accorded with English law, that it was said that the Court of Appeal decisions should be followed until overruled by the House of Lords.    [Back]

Note 148    [2001] 1 AC 146, 171A.    [Back]

Note 149    Ibid, at p 171B.    [Back]

Note 150    Ibid, at p 172B.    [Back]

Note 151    In contrast, Lord Hobhouse (at p 205E) suggests that the jury should consider whether a person having “ordinary powers of self-control would have done what the defendant did”. Similar wording is suggested by Lord Millett at p 208E.    [Back]

Note 152    Ibid, at p 172C–D.    [Back]

Note 153    Since 1957 the reasonable man has been used as the sole definitional aid to the meaning of provocation. Before 1957 it was part of that definition only. See paras 4.3 – 4.7.    [Back]

Note 154    (1869) 11 Cox CC 336, 339.    [Back]

Note 155    [2001] 1 AC 146, 172H.    [Back]

Note 156    Weller [2003] EWCA Crim 815 and Taylor [2003] EWCA Crim 2447 discussed in the following section of this Part “The application of Smith (Morgan)” show some of the arguments that have arisen in the Court of Appeal in connection with this direction. In the latter case, the failure of the trial judge to return to his direction on provocation when dealing with the psychiatric evidence was not regarded as making the conviction unsafe, in view of the clear, correct earlier direction. Latham LJ (presiding) remarked that in complex cases involving directions relating both to diminished responsibility and provocation, it would be better if counsel are invited to consider and comment on a draft direction before the judge sums up to the jury.    [Back]

Note 157    Ibid, at p 179E.    [Back]

Note 158    Ibid, at p 177E. Professor Ormerod comments: “The response to this line of argument underpinning Lord Clyde’s judgment is surely to create a new defence tailor-made to suit the perceived problem rather than stretching the concepts of other defences beyond their intended scope?” The question is whether such a new defence would be justified.    [Back]

Note 159    Ibid, at p 177F–H.    [Back]

Note 160    Ibid, at p 175E. It is to be noted that while the dissenting judgments have drawn attention to the fact that a legislative scheme is provided by sections 2 and 3, they do not use the terms of section 2 to interpret section 3.    [Back]

Note 161    Ibid, at p 178D. Lord Clyde drew support for this view from a passage in Duffy [1949] 1 All ER 932 where Devlin J directed the jury to consider “whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given”.    [Back]

Note 162    Ibid, at p 178A–C. As noted above, one response to this aspect of Duffy might be that it was based on the proportionality rule in Mancini v DPP [1942] AC 1 which did not survive the 1957 Act. If the jury were posed the problem in terms of proportionality of response, would they ever accept that killing was warranted? Perhaps only in some of the age-old categories of the common law, for example, the defendant killing his wife’s rapist.    [Back]

Note 163    Ibid, at p 179B. This suggests that the major failing was ambiguity in exposition not in moral standards.    [Back]

Note 164    Ibid, at p 179G.    [Back]

Note 165    Ibid, at p 179G–H. Some of Lord Clyde’s statement would appear to allow for even the most inexcusable characteristics to be taken into consideration in the jury’s assessment of the loss of self-control. Taken to its logical conclusion the judgment would seem to advocate some kind of general incapacity/diminished defence for serious crimes.    [Back]

Note 166    [1978] AC 705.    [Back]

Note 167    Smith (Morgan) [2001] 1 AC 146, 165D–166G, per Lord Hoffmann and 180D–181F, per Lord Clyde.    [Back]

Note 168    Ibid, at p164H, per Lord Hoffmann and p 180D, per Lord Clyde.    [Back]

Note 169    Ibid, at p 166D, per Lord Hoffmann and p 181B, per Lord Clyde.    [Back]

Note 170    [1962] NZLR 1069.    [Back]

Note 171    (1980) 71 Cr App R 331.    [Back]

Note 172    Ibid, at p 153G.    [Back]

Note 173    [1997] 1 Cr App R 199, 207.    [Back]

Note 174    [2001] 1 AC 146, 153H–154A.    [Back]

Note 175    [1978] AC 705, 717.    [Back]

Note 176    Smith (Morgan) [2001] 1 AC 146, 154F. (emphasis in original)    [Back]

Note 177    Ibid, at p 206B.    [Back]

Note 178    Ibid.    [Back]

Note 179    Professor Ormerod points out, in addition, that moral subversion of the objective limb aside, the practical implications of this will include inconsistent verdicts from different juries in cases that are factually indistinguishable; a greater likelihood of a provocation plea being made in a greater number of cases since the accused will have “nothing to lose” by pleading the defence – this in turn will lead to more trials and trials of greater length; an evidential free for all. There is also the problem that the jury are being left to determine in each case a question of law – what is the ambit of the defence of provocation.    [Back]

Note 180   [2001] 1 AC 146, 185F–G.    [Back]

Note 181    Ibid, at p 196C.    [Back]

Note 182    Ibid, at p 192G.    [Back]

Note 183    Ibid, at p 189D.    [Back]

Note 184    Ibid, at p 191C.    [Back]

Note 185    Ibid, at p 198A–B.    [Back]

Note 186    Ibid, at p 195D–G.    [Back]

Note 187    Ibid, at p 188C–E.    [Back]

Note 188    Ibid, at p 205E. Professor Ormerod comments: Although avoidance of the “reasonable” man term may be easily achieved in reform, it may be difficult to avoid reference to characteristics. The term is not loaded as with that of reasonable man, and it would seem to be one that the jury can readily grasp.     [Back]

Note 189    (1980) 71 Cr App R 331. Discussed at ibid, at p 198G–199C.    [Back]

Note 190    [1992] 4 All ER 889.    [Back]

Note 191    [1995] 4 All ER 987.    [Back]

Note 192    [1993] 4 All ER 888.    [Back]

Note 193    [1995] 4 All ER 1008.    [Back]

Note 194    [1996] 1 WLR 1174.    [Back]

Note 195    Smith (Morgan) [2001] 1 AC 146, 200F–202H.    [Back]

Note 196    [1962] NZLR 1069.    [Back]

Note 197    [2001] 1 AC 146, 203C.    [Back]

Note 198    Ibid, at pp 186G–188C. Lord Hobhouse said, at p 199F: What has gone wrong in some later cases is that isolated sentences have been lifted from North J without his qualifications and Lord Lane has been treated as approving such unqualified statements whereas the whole basis of the judgment and decision in Newell is the acceptance of the qualifications and the insistence that they be satisfied.    [Back]

Note 199    [1997] AC 131. That was the case, even though the distinction between matters which may aggravate the provocation and the objective standard of self-control made by the law, can be found not only in Luc Thiet Thuan, but also in the relevant Court of Appeal, and in Morhall [2001] 1 AC 146, 205A–B, per Lord Hobhouse.    [Back]

Note 200    [2001] 1 AC 146, 206E–F.    [Back]

Note 201    Ibid, at p 207. In respect of the emphasis placed by Lord Millett on partial fault of the victim, Professor Ormerod points out that this is not necessarily true in all cases. He says there is a danger in introducing the notion of “victims” fault into the construction of the defence, since this may distract the jury from the appropriate inquiry into blame. The present law requires neither that the provocation emanates from the victim nor that the victim was in any way at fault. The judgment also raises the question of the classification of the defence as partial justification and/or partial excuse. See n 130 above.    [Back]

Note 202    [2001] 1 AC 146, 207A.    [Back]

Note 203    Ibid, at p 207D–E.    [Back]

Note 204    Ibid, at pp 207H–208A. (emphasis added)    [Back]

Note 205    Ibid, at p 208A.    [Back]

Note 206    Ibid, at p 208C.    [Back]

Note 207    Ibid, at p 210E.    [Back]

Note 208    Ibid, at p 208F–H.    [Back]

Note 209    Ibid, at p 209A–B.    [Back]

Note 210    Ibid, at p 209D.    [Back]

Note 211    [1996] AC 90.    [Back]

Note 212    [2001] 1 AC 146, 212H.    [Back]

Note 213    Ibid, at p 210A.    [Back]

Note 214    Ibid, at p 211F. (emphasis in original)    [Back]

Note 215    Ibid, at p 213E.    [Back]

Note 216    Ibid, at p 212G.    [Back]

Note 217    Ibid, at p 214A–B.    [Back]

Note 218    Paras 4.112 and 4.118 – 4.120.    [Back]

Note 219    Paras 4.112 and 4.121.    [Back]

Note 220    Para 4.99.    [Back]

Note 221    Para 4.89.    [Back]

Note 222    Para 4.95.    [Back]

Note 223    The impact of the mandatory sentence on these issues is raised in Part XII, paras 12.22 – 12.26.    [Back]

Note 224    Para 4.116.    [Back]

Note 225    Chan Wing Cheong, “The Present and Future of Provocation as a Defence to Murder in Singapore” [2001] Singapore Journal of Legal Studies 453; J A Coutts, “Standard of self-control of the Reasonable Man” (2001) 6 Journal of Criminal Law 130; Catherine Elliot, “The Partial Defence of Provocation: the House of Lords Decision in Smith” (2000) 64 Journal of Criminal Law 594; John Gardner and Timothy Macklem, “Compassion without Respect? Nine Fallacies in R v Smith” [2001] Crim LR 623 and “Provocation and Pluralism” (2001) 64 MLR 815; Stephen O’Doherty, “Provocation and diminished responsibility: sections 2 and 3 of the Homicide Act 1957” (2001) 165 Justice of the Peace and Local Government Law 776; Simon Parsons, “Compassionate, Simple – but inconsistent and discriminatory?” [2001] Legal Executive 20 and “Provocation: to Be or Not to Be an Attributed Characteristic” [2000] Denning Law Journal 139; Prof Sir John Smith, “Commentary on Smith” [2000] Crim LR 1005; Graham Virgo, “Clarifying the Defence of Provocation” (2000) 10 Archbold News 4 and “Provocation: Muddying the Waters” (2001) 60 CLJ 23; Paul Dobson, “Murder – Provocation” (2001) 32 Student Law Review 24; Susan Edwards, “The Erosion of the Objective Test in Provocation: Leaving it to the Jury? R v Smith: Towards a just law of Provocation?” (2001) 23 Journal of Social Welfare and Family Law 227; Neil Gow, “Provocation and the Reasonable Man” (2000) 48 Criminal Law Bulletin 7; Russell Heaton, "Anything Goes" (2001) 10 Nottingham Law Journal 50; J E Stannard, “Towards a Normative Defence of Provocation in England and Ireland” (2002) 66 Journal of Criminal Law 528.    [Back]

Note 226    See, in particular Prof Sir John Smith, “Commentary on Smith” [2000] Crim LR 1005 and Russell Heaton, "Anything Goes" (2001) 10 Nottingham Law Journal 50.    [Back]

Note 227    [1978] AC 705.    [Back]

Note 228    [1996] 1 AC 90.    [Back]

Note 229    The defendant’s glue-sniffing addiction was relevant only because it enhanced the gravity of the provocative conduct, which included taunts about that addiction.    [Back]

Note 230    A Ashworth, “The Doctrine of Provocation” (1976) 35 CLJ 292, 312.    [Back]

Note 231    Russell Heaton, "Anything Goes" (2001) 10(2) Nottingham Law Journal 50, 55 – 56.    [Back]

Note 232    (1986) 83 Cr App R 319.    [Back]

Note 233    Prof Sir John Smith, “Commentary on Smith” [2000] Crim LR 1005, 1007.    [Back]

Note 234    [2001] 1 AC 146, 163.    [Back]

Note 235    Ibid.    [Back]

Note 236    Ibid, at p 169.    [Back]

Note 237    [2001] Crim LR 623, 635.    [Back]

Note 238    (2001) 23 Journal of Social Welfare and Family Law 227 at pp 227–228.    [Back]

Note 239    Ibid, at p 236.    [Back]

Note 240    [2003] EWHC 835.     [Back]

Note 241    [2003] EWCA Crim 815.    [Back]

Note 242    [2003] UKPC 36.    [Back]

Note 243    [1997] AC 131.    [Back]

Note 244    [2001] 1 AC 146.    [Back]

Note 245    [2003] EWHC 835.     [Back]

Note 246    The “provocation” was, therefore, the conduct of the neighbour in response to the complaint about the dog, rather than simply the barking of the dog.    [Back]

Note 247    Ibid, at para 26.    [Back]

Note 248    Ibid, at para 25.    [Back]

Note 249    [2003] EWCA Crim 815.     [Back]

Note 250    Ibid, at para 21. Lord Clyde in Smith (Morgan) [2001] 1 AC 146, 179 would have excluded from the jury’s consideration characteristics which were self-induced. He also said at p 180 that characteristics such as “exceptional pugnacity or excitability will not suffice”. The facts of this particular case may not have prompted any such mention.    [Back]

Note 251    Ibid, at para 16. (emphasis added)    [Back]

Note 252    [2003] EWCA 815, para 17.    [Back]

Note 253    [2003] UKPC 36.    [Back]

Note 254    [1997] AC 131.    [Back]

Note 255    The appeal against conviction was however allowed on the other ground of appeal concerning the direction as to good character. Verdicts of manslaughter were substituted.    [Back]

Note 256    [2003] UKPC 36, para 13.    [Back]

Note 257    Campbell [1997] 1 Cr App R 199, 207, per Lord Bingham, quoted by Lord Slynn in Smith (Morgan) [2001] 1 AC 146, 153H–154A. It has been explained that the expression “reasonable man” in section 3 was intended to set a basic standard of behaviour with which everyone could be expected to meet. This has not stopped judges and academics from raising questions about whether a reasonable man would ever so respond to provocation.    [Back]

Note 258    [2001] 1 AC 146.    [Back]

Note 259    Two well-recognised rationales behind the partial defence of provocation are: (1) that the deceased contributed to the killing so it is harsh to call the offence murder having regard to the relative moral blameworthiness; and (2) by reason of the provocation the defendant was not in a position to exercise his or her full mental faculties. See S Yeo, Partial Excuses to Murder (1990) pp 19–20.    [Back]

Note 260    There is no moral culpability that can be properly placed on a baby if its crying causes the defendant to suffer a disturbed night.    [Back]

Note 261    [1995] Crim LR 739.    [Back]

Note 262    [2001] 1 AC 146.    [Back]