Ipsofactoj.com: International Cases [2006] Part 3 Case 3 [PC]


THE PRIVY COUNCIL

(from the Court of Appeal, Jersey)

Coram

Attorney General for Jersey

- vs -

Holley

LORD BINGHAM OF CORNHILL

LORD NICHOLLS OF BIRKENHEAD

LORD HOFFMANN

LORD HOPE OF CRAIGHEAD

LORD SCOTT OF FOSCOTE

LORD RODGER OF EARLSFERRY

LORD WALKER OF GESTINGTHORPE

BARONESS HALE OF RICHMOND

LORD CARSWELL

15 JUNE 2005


Judgment

Lord Nicholls of Birkenhead

(delivered the majority judgment of the Board)

  1. This appeal from the Court of Appeal of Jersey calls for examination of the law relating to provocation as a defence or, more precisely, as a partial defence to a charge of murder. Jersey law on this subject is the same as English law. In July 2000 the House of Lords considered the ingredients of this defence in the Morgan Smith case (R v Smith (Morgan) [2001] 1 AC 146). The decision of the House in that case is in direct conflict with the decision of their Lordships’ Board in Luc Thiet Thuan v The Queen [1997] AC 131. And the reasoning of the majority in the Morgan Smith case is not easy to reconcile with the reasoning of the House of Lords in R v Camplin [1978] AC 705 or R v Morhall [1996] AC 90. This appeal, being heard by an enlarged Board of nine members, is concerned to resolve this conflict and clarify definitively the present state of English law, and hence Jersey law, on this important subject.

  2. Following a re-trial held at the Royal Court on 12 July 2002 Mr. Dennis Peter Holley was convicted of murder. He was a chronic alcoholic. He admitted killing his longstanding girl friend with an axe while under the influence of alcohol. The sole issue at the trial was provocation. On 17 January 2003 the Court of Appeal, comprising Southwell JA, Carey (Bailiff of Guernsey) and Hodge JA, allowed an appeal by Holley and set aside the conviction of murder, on the ground that the Deputy Bailiff had misdirected the jury on the issue of provocation: see 2003 JLR 22. The Court of Appeal later substituted a conviction of manslaughter. From that decision the Attorney General appealed to their Lordships’ Board. It will be convenient to postpone elaboration of the facts of this case until the issue of legal principle has been discussed.

    THE LEGAL ISSUE

  3. The legal issue is a little intricate, and an extended introduction is unavoidable. The starting point is to note that, like the law of murder, the partial defence of provocation is of common law origin. It has often been described as a concession to human frailty. For centuries a conviction for murder attracted a mandatory sentence of death. The common law fashioned the defence of provocation in the face of the rigidity of this sentence. The common law thereby recognised that sometimes the extenuating circumstances in which a person commits murder should reduce his conviction to the lesser (but still very serious) offence of manslaughter.

  4. By section 3 of the Homicide Act 1957 Parliament altered some aspects of this common law defence. Jersey law has a corresponding provision in article 4 of the Homicide (Jersey) Law 1986. 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.

  5. Thus, in line with the common law, section 3 envisages that the defence of provocation has two ingredients. The first ingredient, known as the subjective or factual ingredient, is that the defendant was provoked into losing his self-control. This concept is not without its own difficulties, but it is not necessary to pursue them on this occasion. Suffice to say, in deciding whether this ingredient exists in a particular case all evidence which is probative is admissible. This includes evidence of any mental or other abnormality making it more or less likely that the defendant lost his self-control.

  6. The second ingredient, often called the objective or evaluative ingredient, raises, in the language of the statute, “the question whether the provocation was enough to make a reasonable man do as he did .... [taking] into account everything both done and said according to the effect .... it would have on a reasonable man”. Broken down, this objective ingredient has two elements. The first element calls for an assessment of the gravity of the provocation. The second element calls for application of an external standard of self-control: “whether the provocation was enough to make a reasonable man do as he did”.

  7. The statutory reference to a ‘reasonable man’ in this context is, by common accord, not the best choice of words. It is difficult to conceive of circumstances where it would be ‘reasonable’ for a person to respond to a taunt by killing his tormentor. Rather, the phrase is intended to refer to an ordinary person, that is, a person of ordinary self-control.

  8. This interpretation is now well-established. In the leading case of R v Camplin [1978] AC 705, 717, Lord Diplock gave a much quoted explanation of the meaning of the phrase “reasonable man” for the purposes of the law of provocation:

    It means an ordinary person of either sex, not exceptionally excitable or 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.

    Lord Simon of Glaisdale said the same, at page 726. The reference to “a reasonable man” at the end of section 3, he said, means “a man of ordinary self-control”. Similarly in R v Morhall [1996] AC 90, 98, Lord Goff of Chieveley commented that, despite the express words of the statute, to speak of the degree of self-control attributable to the ordinary person is “certainly less likely to mislead” than to do so with reference to the reasonable person.

  9. An external standard of this character, whether expressed in terms of reasonableness or a reasonable man or an ordinary person, has long been an essential element of the defence. In 1837 in R v Kirkham 8 Car & P 115, 119, Coleridge J observed that “though the law condescends to human frailty” it “considers man to be a rational being, and requires that he should exercise a reasonable control over his passions”. In 1869 in R v Welsh 11 Cox CC 336, 339, Keating J directed the jury that, in order to reduce the crime to manslaughter, there should have been serious provocation, “something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act”. In Mancini v Director of Public Prosecutions [1942] AC 1, 9, Viscount Simon LC said:

    The test to be applied is that of the effect of the provocation on a reasonable man .... so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did.

    In R v Duffy [1949] 1 All ER 932 the Court of Criminal Appeal approved as ‘impeccable’ a summing up by Devlin J which described provocation as some act or series of acts done by the deceased to the accused “‘which would cause in any reasonable person, and actually caused in the accused”, a sudden and temporary loss of self-control.

  10. Before 1957 loss of self-control had to be brought about by things done. Words would not suffice to constitute provocation. Section 3 extended the scope of the defence by providing that in future loss of self-control could be provoked either by things done or by things said or by both together. This extension had an effect on what evidence was relevant, and therefore admissible, on the issue of the gravity of the provocation, that is, the first element in the objective ingredient. As explained by Lord Diplock in the case of Camplin, at page 717, when words alone could not amount to provocation the gravity of provocation depended primarily on degrees of violence. Once words could amount to provocation, the gravity of provocation could depend upon “the particular characteristics or circumstances of the person to whom a taunt or insult is addressed”. Lord Diplock expressed his view, at page 718, on what would be a proper direction to a jury on the question left to their determination by section 3:

    He should .... 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.

    [emphasis added]

  11. Hence if a homosexual man is taunted for his homosexuality it is for the jury to consider whether a homosexual man having ordinary powers of self-control might, in comparable circumstances, be provoked to lose his self-control and react to the provocation as the defendant did. Authority for this proposition, if needed, is the “glue-sniffer” case of R v Morhall [1996] AC 90. There the deceased nagged the defendant about his addiction to glue-sniffing. The problem before the House of Lords was whether this addiction should have been taken into account at the defendant’s trial as affecting the gravity of the provocation: see page 97D. Lord Goff of Chieveley, with whose speech all members of the House agreed, said it should. The thrust of his reasoning was that, for this purpose, “the entire factual situation” was to be taken into account. This includes matters not falling strictly within the description “characteristics”. It also includes matters which are discreditable to the defendant. Lord Goff said, at page 99:

    suppose that a man who has been in prison for a sexual offence, for example rape, has after his release been taunted by another man with reference to that offence. It is difficult to see why, on ordinary principles, his characteristic or history as an offender of that kind should not be taken into account as going to the gravity of the provocation.

  12. Of course, assessing the conduct of a glue-sniffing defendant against the standard of a glue-sniffing man having ordinary powers of self-control may mean the defendant is assessed against a standard of self-control he cannot attain. He may be exceptionally excitable or pugnacious. But this is so with every defendant who seeks to rely upon provocation as a defence. The objective standard of self-control is the standard set by the common law and, since 1957, by the statutory reference to a ‘reasonable man’. It is of general application. Inherent in the use of this prescribed standard as a uniform standard applicable to all defendants is the possibility that an individual defendant may be temperamentally unable to achieve this standard.

  13. Taking into account the age and sex of a defendant, as mentioned in Camplin, is not an exception to this uniform approach. The powers of self-control possessed by ordinary people vary according to their age and, more doubtfully, their sex. These features are to be contrasted with abnormalities, that is, features not found in a person having ordinary powers of self-control. The former are relevant when identifying and applying the objective standard of self-control, the latter are not.

  14. That Lord Diplock intended to draw this distinction in Camplin is plain from the terms of his suggested direction to a jury, quoted above. The statutory reasonable man has the power of self-control to be expected of an ordinary person of like sex and age. In other respects, that is, in respects other than power of self-control, the reasonable man shares such of the defendant’s characteristics as the jury think would affect the gravity of the provocation to the defendant. This direction, approved by the other members of the House, was clearly intended to be a model direction, of general application in cases of provocation.

    PERSONS OF DIMINISHED RESPONSIBILITY

  15. Before proceeding further it is important to pause and note that when adopting the ‘reasonable man’ standard in section 3 of the Homicide Act 1957 Parliament recognised that, standing alone, this provision might work harshly on defendants suffering from mental abnormality. Accordingly, cheek by jowl with section 3 Parliament introduced into English law the partial defence of diminished responsibility. In short, under section 2 a person is not to be convicted of murder if he shows he was suffering from such abnormality of mind, whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury, as “substantially impaired” his mental responsibility for his acts and omissions in killing or being a party to the killing. In such a case the defendant is liable to be convicted of manslaughter. The burden of proof rests on the defendant who seeks to rely on this defence.

  16. This provision, which is reproduced in article 3 of the Jersey law, is apt to embrace some cases where it is inappropriate to apply to the defendant the standard of self-control of an ordinary person. Section 3, with its objective standard, is to be read with this in mind. The statutory provision regarding diminished responsibility in section 2 represents the legislature’s view on how cases of mental abnormality are to be accommodated in the law of homicide. R v Raven [1982] Crim LR 51 appears to be an instance of a case where this defence would have been relevant. There a 22-year old defendant had a mental age of 9 years. Similarly in R v Ahluwalia [1992] 4 All ER 889, where a defence of provocation failed, the Court of Appeal ordered a retrial on the issue of diminished responsibility. Section 2 should not be distorted to accommodate the types of case for which section 3 was specifically enacted.

    THE TWO VIEWS

  17. Against this background their Lordships turn to consider the point where the substantial difference in judicial views has emerged. Exceptional excitability or pugnacity is one thing. But what if the defendant is suffering from serious mental abnormality, as in the Morgan Smith case where the defendant suffered from severe clinical depression? Is he, for the purposes of the defence of provocation, to be judged by the standard of a person having ordinary powers of self-control?

  18. The view of the minority in the case of Morgan Smith is that he is. The standard is a constant, objective standard in all cases. The jury should assess the gravity of the provocation to the defendant. In that respect, as when considering the subjective ingredient of provocation (did the defendant lose his self-control?), the jury must take the defendant as they find him, ‘warts and all’, as Lord Millett observed. But having assessed the gravity of the provocation to the defendant, the standard of self-control by which his conduct is to be evaluated for the purpose of the defence of provocation is the external standard of a person having and exercising ordinary powers of self-control. That is the standard the jury should apply when considering whether or not the provocation should be regarded as sufficient to bring about the defendant’s response to it: see Lord Millett, at page 211.

  19. This view accords with the approach applied by their Lordships’ Board in Luc Thiet Thuan v The Queen [1997] AC 131, an appeal from Hong Kong. On a trial for murder the defendant relied on the defences of diminished responsibility and provocation. Medical evidence showed the defendant suffered from brain damage and was prone to respond to minor provocation by losing his self-control and acting explosively. The trial judge directed the jury that this medical evidence was not relevant on the defence of provocation. The jury rejected both defences. The correctness of the judge’s direction on provocation was the issue on the appeal. The Board, Lord Steyn dissenting, upheld the judge’s direction. Lord Goff of Chieveley noted that mental infirmity of the defendant, if itself the subject of taunts by the deceased, may be taken into account as going to the gravity of the provocation. He continued, at page 146:

    But this is a far cry from the defendant’s submission that the mental infirmity of a defendant impairing his power of self-control should as such be attributed to the reasonable man for the purposes of the objective test.

  20. The majority view expressed in Morgan Smith rejects this approach. According to this view, the standard of self-control required by the common law and by the statute is not the constant standard of a person having and exercising ordinary self-control. The required standard is more flexible. The jury should apply the standard of control to be expected of the particular individual. The jury must ask themselves whether the defendant “exercised the degree of self-control to be expected of someone in his situation” (emphasis added): see Lord Slynn of Hadley, at page 155. Lord Hoffmann expressed the view, at page 163, that the effect of the change in the law made by section 3 of the Homicide Act was that in future the jury “were to determine not merely whether the behaviour of the accused complied with some legal standard but could determine for themselves what the standard in the particular case should be”. Lord Hoffmann continued, at page 173:

    The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The jury must think that 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. This is entirely a question for the jury. In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowance for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition.

  21. Lord Clyde, at page 179, expressed the expected standard of self-control in these terms:

    the standard of reasonableness in this context 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. 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.

    [emphasis added]

  22. This majority view, if their Lordships may respectfully say so, is one model which could be adopted in framing a law relating to provocation. But their Lordships consider there is one compelling, overriding reason why this view cannot be regarded as an accurate statement of English law. It is this. The law of homicide is a highly sensitive and highly controversial area of the criminal law. In 1957 Parliament altered the common law relating to provocation and declared what the law on this subject should thenceforth be. In these circumstances it is not open to judges now to change (“develop”) the common law and thereby depart from the law as declared by Parliament. However much the contrary is asserted, the majority view does represent a departure from the law as declared in section 3 of the Homicide Act 1957. It involves a significant relaxation of the uniform, objective standard adopted by Parliament. Under the statute the sufficiency of the provocation (“whether the provocation was enough to make a reasonable man do as [the defendant] did”) is to be judged by one standard, not a standard which varies from defendant to defendant. Whether the provocative act or words and the defendant’s response met the “ordinary person” standard prescribed by the statute is the question the jury must consider, not the altogether looser question of whether, having regard to all the circumstances, the jury consider the loss of self-control was sufficiently excusable. The statute does not leave each jury free to set whatever standard they consider appropriate in the circumstances by which to judge whether the defendant’s conduct is “excusable”.

  23. On this short ground their Lordships, respectfully but firmly, consider the majority view expressed in the Morgan Smith case is erroneous.

    POINTS ARISING

  24. Their Lordships mention some ancillary points. The first is relevant to the facts in the present case. It concerns application of the principles discussed above in circumstances where the defendant acted under the influence of alcohol or drugs and, therefore, at a time when his level of self-control may have been reduced. If the defendant was taunted on account of his intoxication, that may be a relevant matter for the jury to take into account when assessing the gravity of the taunt to the defendant. But the defendant’s intoxicated state is not a matter to be taken into account by the jury when considering whether the defendant exercised ordinary self-control. The position is the same, so far as provocation is concerned, if the defendant’s addiction to alcohol has reached the stage that he is suffering from the disease of alcoholism.

  25. The second point their Lordships wish to mention concerns the three examples given by Lord Steyn in his dissenting opinion in Luc Thiet Thuan v The Queen [1997] AC 131, 149. Lord Steyn instanced cases of women who are more prone to lose their self-control because they are suffering from postnatal depression, or “battered woman syndrome”, or a personality disorder. Lord Steyn suggested that, on the majority view of the law expressed in that case, in those three instances the judge would have to direct the jury that on the defence of provocation the evidence of the woman’s condition was admissible on the “first and subjective inquiry” but not on the “second and objective inquiry”. Their Lordships respectfully differ. This is not wholly correct. As explained above, the evidence of the woman’s condition may be relevant on two issues: whether she lost her self-control, and the gravity of the provocation for her. The jury will then decide whether in their opinion, having regard to the actual provocation and their view of its gravity for the defendant, a woman of her age having ordinary power of self-control might have done what the defendant did. More importantly, in each of these three cases the defendant will in principle have available to her the defence of diminished responsibility. The potential availability of this defence in these cases underlines the importance of not viewing the defence of provocation in isolation from the defence of diminished responsibility. These two defences must be read together to obtain an overall, balanced view of the law in this field.

  26. Next, in recent years much play has been made of the “mental gymnastics” required of jurors in having regard to a defendant’s “characteristics” for one purpose of the law of provocation but not another. Their Lordships consider that any difficulties in this regard have been exaggerated. The question is largely one of presentation. It will be noted that their Lordships have eschewed use of the expression “characteristics”, accompanied as that expression now is with much confusing baggage. The better approach is summarised by Lord Hobhouse of Woodborough in the Morgan Smith case at page 205C-H.

  27. The final point is this. In expressing their conclusion above their Lordships are not to be taken as accepting that the present state of the law is satisfactory. It is not. The widely held view is that the law relating to provocation is flawed to an extent beyond reform by the courts: see the Law Commission report “Partial Defences to Murder”, (Law Com no 290) (2004 Cm 6301), para 2.10. Their Lordships share this view. But the law on provocation cannot be reformulated in isolation from a review of the law of homicide as a whole. In October 2004 the Home Secretary announced the government’s intention to review the law of murder. Given the importance of this area of the criminal law it is imperative that a review, of all aspects of the law of murder, should be undertaken as soon as possible.

    THE PRESENT CASE

  28. Their Lordships now return to the facts of the present case. The defendant and the deceased, Cherylinn Mullane, were both alcoholics. They lived together for a number of years in a flat on the Elysée estate in St Helier. Their relationship was stormy. They regularly drank to excess. When drunk they had rows and were violent. In the course of their rows the deceased was given to making derogatory comments affecting the defendant’s self-esteem.

  29. In the four years before the deceased’s death in April 2000 there were many incidents of violence. On several occasions the defendant served sentences of imprisonment in respect of assaults on the deceased. On his release from prison in December 1999 he returned to the flat on the Elysée estate but the deceased did not want him to continue to live there. He became withdrawn and depressed. There were further episodes of mutual violence and rows.

  30. The killing took place on 13 April 2000. In the morning the defendant and the deceased met in St Helier and visited a local public house. They spent an hour drinking heavily and arguing. He returned to the flat mid-afternoon, and spent the remainder of the afternoon chopping wood with an axe and drinking lager. The deceased spent the afternoon in a public house drinking. She returned to the flat at about 5.15 pm. By then the defendant had drunk about 11 cans and 3 pints of beer or lager. According to the defendant, the deceased was drunk. She entered the flat and told him she had just had sex with another man. He picked up the axe, intending to leave the flat and chop some more wood, when the deceased said “You haven’t got the guts”. Whereupon he lifted the axe and struck the deceased seven or eight times.

  31. The defendant was arrested the following day. His blood then contained 421 mg of alcohol per 100ml of blood, which is more than five times the permitted level for the purposes of the road traffic legislation.

  32. The defendant’s first trial took place before the Royal Court in June 2001. He pleaded not guilty to the charge of murder. He admitted killing the deceased, and the only issue was provocation. He was convicted of murder. He appealed, and the Court of Appeal allowed his appeal on the ground of misdirection on the defence of provocation. The court set aside the defendant’s conviction and ordered a retrial.

  33. The retrial took place in July 2002. Again, the only issue was provocation. Dr Wilkins, a consultant psychiatrist, called by the prosecution was of the opinion that the killing was the result solely of the defendant’s consumption of alcohol. Professor Eastman, a consultant forensic psychiatrist, considered that the defendant’s serious chronic alcoholism was a disease and that his intake of alcohol was involuntary. Both he and Dr Beck, a chartered clinical psychologist also called by the defendant, were of the view that in the absence of alcohol the killing could have occurred as a result of the defendant’s other personality traits. These were that he had an avoidant personality, a depressive personality, an anxious personality, and a dependency on alcohol and women partners. On 12 July the jury returned a unanimous verdict of guilty of murder. He was sentenced to life imprisonment.

  34. The defendant again appealed and, once again, the Court of Appeal allowed the appeal on the ground of misdirection, and set aside the conviction of murder. Given the history of two full trials, one aborted trial and two appeals, the court declined to order a new trial. It was doubtful whether a third trial would be fair. A verdict of manslaughter was entered, and the defendant was sentenced to eight years imprisonment.

  35. The ground of misdirection perceived by the Court of Appeal can be stated shortly. The Deputy Bailiff sought to direct the jury on the legal ingredients of provocation in accordance with the law as expounded by Lord Hoffmann in the Morgan Smith case. His language closely followed that of Lord Hoffmann. The Deputy Bailiff prefaced his direction on the objective ingredient by pointing out that the defence case was that the defendant was a depressive, that he had strong feelings of worthlessness, that he avoided problems, that he suffered from anxiety, and that he was an alcoholic. The Deputy Bailiff continued by noting that the fact that a person is drunk or under the influence of alcohol at the time of the killing, and as a result he is provoked more easily than if he were sober, is not something to be taken into account in his favour.

  36. The Court of Appeal held that at this point the Deputy Bailiff fell into error. What he said was correct. But he should have drawn a distinction between being drunk, which gives rise to no arguable ground of provocation, and suffering from the disease of alcoholism, which was a matter to be taken into account when deciding whether or not the defendant was provoked so as to satisfy article 4 of the Homicide (Jersey) Law 1986. The Court of Appeal noted that in the Morgan Smith case the House of Lords by a majority ‘went further than before’ in holding that a characteristic of the defendant, such as the mental condition consisting of severe clinical depression from which Morgan Smith suffered, was the type of characteristic the jury could take into account. The Deputy Bailiff’s summing up amounted to a direction to leave entirely out of account the principal characteristic on which the defendant relied as a sufficient excuse to reduce his offence from murder to manslaughter.

  37. Their Lordships consider that, as an application of the approach approved by the House of Lords in the Morgan Smith case, the judgment of the Court of Appeal cannot be faulted. Nor can the Court of Appeal be criticised for having adopted this approach. This approach was, after all, in accordance with the majority view of the House of Lords expressed in the most recent decision on this subject. But, for the reasons given above, their Lordships consider the Court of Appeal’s approach was wrong. Contrary to the Court of Appeal’s view, evidence that the defendant was suffering from chronic alcoholism was not a matter to be taken into account by the jury when considering whether in their opinion, having regard to the actual provocation and their view of its gravity, a person having ordinary powers of self-control would have done what the defendant did.

  38. Indeed, their Lordships consider the Deputy Bailiff’s direction to the jury, far from being prejudicial to the defendant, was if anything unduly favourable to him, adopting as it did Lord Hoffmann’s looser formulation. The Deputy Bailiff, for example, directed the jury they should consider “whether there was anything about the defendant’s own particular characteristics which reduced his power of self-control and, if there was, whether it provides a sufficient excuse for what he did” (emphasis added).

    THE OUTCOME

  39. In the ordinary course this conclusion would mean that the order of the Court of Appeal should be set aside and the defendant’s conviction for murder reinstated. But there is a complication. When seeking special leave to appeal the Attorney General did not seek to say that the majority view expressed in Morgan Smith was wrong. With some encouragement from the Board when granting special leave, the Attorney General widened his grounds of appeal. In his written case lodged in support of his appeal he submitted that Morgan Smith was wrong and should not be followed in Jersey. The defendant took objection to this course because in both of the defendant’s trials and in both of his appeals the prosecution agreed that Morgan Smith was the proper law for this case. It would be unfair, the defendant submitted, to permit the Attorney General to resile from the agreed basis on which the trials and the appeals were conducted. In response the Attorney General undertook not to seek to restore the defendant’s conviction for murder. On this basis the appeal was adjourned to be heard by an enlarged Board.

  40. The final twist in this history was that, the Attorney General having given this undertaking, the points of law in issue on the appeal became wholly academic in the sense that, whether the appeal succeeded or failed, the outcome for the defendant would be the same. The order of the Court of Appeal would not be disturbed in either event. This led the defendant to submit that their Lordships’ Board should not permit the appeal to continue. Their Lordships rejected this submission. The Attorney General gave his undertaking as a means whereby his appeal could proceed without unfairness to the defendant. It would be strange if an undertaking, given for this purpose, were to have the self-defeating effect for which the defendant contended in the circumstances of this case.

  41. For the reasons given above their Lordships will humbly advise Her Majesty that this appeal should be allowed, but that the order made by the Court of Appeal should stand.

    Lord Bingham of Cornhill & Lord Hoffmann

    (dissenting)

  42. We regret that we cannot concur in the opinion of the majority of the Board.

  43. The common law of England has for some centuries recognised that there may be circumstances in which a defendant is not justified in killing another but in which the culpability of the defendant is to some extent mitigated because he was provoked to kill that other and would not otherwise have done so. The unjustifiability of such a killing has been reflected in condemning and punishing the defendant for the very serious crime of manslaughter. The element of mitigation is reflected in the reduction of the crime committed from murder to that lesser crime, even where the mental elements necessary for proof of murder have been established.

  44. The reason why provocation was accepted by the judges as a partial defence to a charge of murder has been stated on many occasions over many years. It was a humane concession to human infirmity and imperfection, acknowledgement “that by reason of the frailty of our nature we cannot always stand upright”: see, for example, R v Hayward (1833) 6 C&P 157, 159, per Tindal CJ; R v Thomas (1837) 7 C&P 817, 819, per Parke B; R v Kirkham (1837) 8 C&P 115, 117, 119, per Coleridge J; Holmes v Director of Public Prosecutions [1946] AC 588, 601, per Viscount Simon; Director of Public Prosecutions v Camplin [1978] AC 705, per Lord Diplock at 713, 717, per Lord Morris of Borth-y-Gest at 719, 722, per Lord Simon of Glaisdale at 725; R v Baillie [1995] 2 Cr App R 31, 37, per Henry LJ. As was said by Coleridge J in R v Kirkham, above, p 117,

    The law requires from him [the defendant] and will allow him to show that there were some mitigating circumstances, which alter the presumed character of the act, because it has at once a sacred regard for human life and also a respect for man’s failings, and will not require more from an imperfect creature than he can perform.

    We share the opinion, widely expressed, that the law of homicide stands in urgent need of comprehensive and radical reform. But so long as provocation continues to be recognised as a partial defence to a charge of murder it should be applied consistently with its underlying rationale.

  45. The partial defence of provocation has always, as Lord Diplock pointed out in Camplin, above, at p 713, represented an anomaly in English law, for the reason which he gave, that if it expressed a general principle of criminal law it could not logically be recognised (as it is) as a defence only to a charge of murder (although it is, in that respect, no more anomalous than the statutory defence of diminished responsibility, to which the same restriction applies). It seems clear that the provocation defence was developed by the judges to mitigate the harshness of the ancient law requiring sentence of death to be passed on every defendant convicted of murder. But for the undiscriminating inflexibility of that rule, it may well be that a provocation defence would not have been recognised. But the abolition of capital punishment in Jersey, as in the United Kingdom, does not mean that the true scope of the provocation defence has become a matter of academic interest and no practical importance. In those jurisdictions which continue to follow English authority and which retain the death penalty, the distinction between conviction of murder and conviction of manslaughter on grounds of provocation may continue to make the difference between life and death. In other jurisdictions, such as Jersey and England and Wales, the penal consequences of conviction of the one crime rather than the other are different, and may be very different. And the rationale of the provocation defence is still the consideration of justice which gave rise to it, that the law should “not require more from an imperfect creature than he can perform”.

  46. In a number of reported cases it was stipulated that an act, to be recognised in law as provocative and so potentially giving rise to the defence of provocation, must attain a certain degree or level of seriousness and gravity: see, for example, R v Mawgridge (1707) Kel 119, 132, per Holt CJ; R v Welsh (1869) 11 Cox CC 336, 338-339, per Keating J; R v Selten (1871) 11 Cox CC 674, 675; R v Alexander (1913) 9 Cr App R 139, 141. This requirement, applied at a time when words and gestures alone could not be recognised in law as provocative (R v Mawgridge, above, pp 130-131), no doubt provided a salutary safeguard against partial exoneration of the short-tempered and the over-sensitive, those whom Viscount Simon LC was later to describe in Mancini v Director of Public Prosecutions [1942] AC 1, 9, as “unusually excitable or pugnacious”. The reasonable man was, as Lord Diplock observed in Camplin, above, at p 714, “a comparatively late arrival in the law of provocation”. The objective comparison between the defendant and the reasonable man appears to have been first articulated by Keating J, summing up to the jury in R v Welsh, above, pp 338-339, a case in which, if there was any provocative conduct at all by the deceased, it was of the slightest, and the emphasis of the judge’s direction, understandably enough, was on the need for the provocation to be “serious”.

  47. The concept of the reasonable man in this context has been recognised as “inapt” by Lord Diplock in Camplin, above, at p 716 and by Lord Goff of Chieveley, for the House of Lords, in R v Morhall [1996] AC 90, 97-98, for the reason which they gave, that powers of ratiocination bear no obvious relationship to powers of self-control. It may no doubt have been recognition of this inaptness which led Viscount Simon LC to refer in Mancini, above, p 9, to “an ordinary person” and Lord Goddard CJ in R v McCarthy [1954] 2 QB 105, 112, to “an average person”. The public policy underlying adoption of the reasonable man test in the common law doctrine of provocation was to reduce the incidence of fatal violence by preventing a person relying on his own exceptional pugnacity or excitability as an excuse for loss of self-control: see Camplin, above, p 716, per Lord Diplock, p 726, per Lord Simon of Glaisdale; Morhall, above, p 98, per Lord Goff of Chieveley. But the reasonable man test, literally applied, is in our opinion subject to an even more fundamental objection. Whatever the position in earlier days, when hot blood and a violent response to perceived injury could be more readily excused, few judges or jurors could now conceive of any circumstances in which a reasonable or ordinary or average person would be provoked to take the life of another with the intent necessary for murder.

  48. The rule thus enunciated was literally applied. Thus the Court of Criminal Appeal held in R v Alexander, above, that when making the objective comparison with a reasonable man no allowance could be made for a defendant said to be mentally deficient, and in R v Lesbini [1914] 3 KB 1116 that no account should be taken of an anti-semitic slur which, it seems, had provoked the defendant but would not have provoked a reasonable person who was not Jewish. R v Lesbini was approved by the House in Mancini, above, a case in which the defendant relied on self-defence and the evidence of provocation appears to have been minimal, if it existed at all. Such was not the case in Bedder v Director of Public Prosecutions [1954] 1 WLR 1119. In that case the 18-year old defendant was sexually impotent and stabbed a prostitute who humiliated him both verbally and physically after he had tried, unsuccessfully, to have intercourse with her. It appears to have been accepted that the defendant had in fact been provoked to act as he had, but the trial judge (Sellers J) directed the jury that “a man who is sexually impotent is not entitled to rely on provocation which would not have led an ordinary person to have acted in the way which was in fact carried out”. This direction was held by the House (p 1120) to be impeccable, and the submission that “the hypothetical reasonable man must be confronted with all the same circumstances as the accused and that this could not be fairly done unless he was also invested with the peculiar characteristics of the accused” was rejected (p 1123) as making nonsense of the test. So the defendant’s conviction of murder and the sentence of death passed upon him were upheld. It cannot be doubted that the decision of the House in Bedder was an orthodox, if uncritical, statement of the law as then understood, and it does not appear to have provoked more than muted academic criticism at the time (but see 70 LQR 442-445 (1954); Russell on Crime, 11th ed. (1958), ed JWC Turner, vol 1, pp 605-609). But it would seem plain that a reasonable (or ordinary or average) person who was not impotent would not have been as deeply wounded and thus provoked as the defendant had (or may have) been. Thus the objective test so interpreted and applied did not involve a comparison of like with like and did not in any way reflect the merciful considerations which had given rise to the rule.

  49. The Royal Commission on Capital Punishment 1949-1953 reported before the House gave judgment in Bedder. But reliance is placed by the Attorney General in the present appeal on the conclusion of the Royal Commission (in para 145 of the Report) that it did not feel justified in recommending any change in the existing law to the test of the reasonable man. The Royal Commission had, however, acknowledged (in para 134) that the “increasingly strict and narrow tests” laid down by the authorities had in practice been tempered, first, by judges instructing juries in terms more favourable than the letter of the law would allow; secondly, by juries, sometimes with the encouragement of the judge and sometimes in the face of his direction, returning verdicts of manslaughter where, as a matter of law, the most favourable interpretation of the evidence could scarcely justify them in doing so; and thirdly, by the readiness of successive home secretaries to recommend the exercise of the prerogative of mercy where the defendant had been convicted of murder but had acted under substantial provocation of a kind or degree insufficient in law to reduce the crime to manslaughter. With genuine respect to that very distinguished Royal Commission, we cannot accept this reasoning. A legal rule cannot be supported by relying on judges and juries to evade it in breach of their clear legal duties. And few would now contend that the injustice of a substantive legal rule can be properly addressed through the exercise of executive clemency: see Reyes v The Queen [2002] UKPC 11, [2002] 2 AC 235, para 44.

  50. Article 4 of the Homicide (Jersey) Law 1986 reproduces section 3 of the Homicide Act 1957. That section did not codify the law on the partial defence of provocation but did make two changes. The first was to the first, factual or subjective, limb of the defence: account could now be taken of any provocation, whether by things done or things said or both together. The second was to the second, objective or comparative, limb: the question whether the provocation was enough to make a reasonable man do as the defendant did was to be left to be determined by a jury, and in determining that question the jury were to take into account everything both done and said according to the effect which, in the jury’s opinion, it would have on a reasonable man. These were both very significant changes. They had the effect, as Lord Diplock put it in Camplin, above, p 716, that the reasonable man test “falls to be applied now in the context of a law of provocation that is significantly different from what it was before the Act was passed”.

  51. The first of these changes accentuated the distinction between provocation and self-defence, with which in earlier times provocation had had an affinity: see, for example, R v Mawgridge, above, at pp 135-137, per Holt CJ. As Lord Diplock observed in Camplin, above, at p 717:

    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 .... But so long as words unaccompanied by violence could not in law amount to provocation the relevant proportionality between provocation and retaliation was primarily one of degrees of violence. Words spoken to the accused before the violence started were not normally to be included in the proportion sum. But now that the law has been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed.

  52. The second change is even more significant. Where there was evidence, fit for the jury’s consideration, of provocative conduct actually leading to loss of self-control by the defendant at the time of the killing, application of the objective reasonable person comparison was now to be a question for the opinion of the jury. That is to put the matter positively, as section 3 of the 1957 Act and article 4 of the 1986 Law do. But the real significance of the change is in the negative impact of the provision. Implicit in the requirement that the matter is to be left to the jury for their opinion is a prohibition of judicial directions excluding from the jury’s consideration features of the comparison which they consider pertinent. The judge can of course offer guidance, provided he makes clear that the decision is one for the jury and not for him, and as was said in the extreme case of R v Doughty (1986) 83 Cr App R 319, 326, echoing para 151 of the Report of the Royal Commission on Capital Punishment, “the common sense of juries can be relied upon not to bring in perverse verdicts where the facts do not justify the conclusion”. It is, however, clear in our opinion that a trial jury could no longer be directed that the reasonable (or ordinary or average) man should not be treated as a sexually impotent man, as Sellers J had done in Bedder. It is henceforward to be a matter for the jury.

  53. Reference was made in argument to Phillips v The Queen [1969] 2 AC 130, in which the Board considered a Jamaican enactment identical in its terms to section 3 of the 1957 Act and article 4 of the 1986 Law. But the defence at trial did not advance a defence based on provocation, and no reliance was placed on any attribute of the defendant rendering him more than ordinarily susceptible to provocation. In our opinion the case throws little if any light on the present problem and Bedder, above, was not cited.

  54. The leading case on the modern law of provocation is Director of Public Prosecutions v Camplin [1978] AC 705. This decision has been the subject of much discussion and analysis, but there has to our knowledge been no judicial challenge to its authority for whatever it decided. The defendant, aged 15, was forcibly buggered by a middle-aged man who, after this sexual violation, laughed at him. The defendant claimed that he had been provoked by this conduct to lose his self-control and seize a chapati pan with which he struck and killed his assailant. There appears to have been little or no legal dispute about the first, factual or subjective, limb of the defence. But Boreham J, following Bedder, above, directed the jury to consider whether the provocation was enough to make a reasonable man, not a reasonable boy or lad, act as the defendant had done. The jury convicted the defendant of murder, and the Court of Appeal allowed his appeal on a somewhat contrived ground. On appeal to the House, the Crown relied strongly on Bedder, contending that the reasonable man should not be invested with any particular personal characteristics, and did not have any relevant age. The question certified by the Court of Appeal for the opinion of the House, quoted by Lord Diplock at p 713, was solely directed to the question of age, and it is unsurprising that Lord Diplock, Lord Morris of Borth-y-Gest and Lord Simon of Gaisdale in their speeches, and Lord Diplock in his suggested jury direction at p 718, approved by all members of the Committee including Lord Fraser of Tullybelton and Lord Scarman, paid particular attention to age, and also gender which is closely linked to age in adolescence. But if the House had intended merely to decide that age and gender could, and should where appropriate, be taken into account when applying the objective comparison, their Lordships’ speeches could and in our view would have been shorter, simpler and to different effect. There are four points which are in our opinion of particular significance.

  55. First, their Lordships expressly reminded themselves of the rationale of the provocation defence as a concession to human infirmity and frailty: pp 713, 717, per Lord Diplock; pp 719, 722, per Lord Morris; p 725, per Lord Simon.

  56. Secondly, their Lordships criticised the decision in Bedder, above, as harsh and unjust, and held that it was no longer good law following enactment of section 3 of the 1957 Act. Lord Diplock (p 713) said that section 3 altered the law as it had been expounded in the cases, including three recent decisions of the House in Mancini, above, Holmes, above, and Bedder, above, and went on to say (p 716) that section 3 had been “intended to mitigate in some degree the harshness of the common law” as developed in those decisions. He referred again (p 717) to “the previous harshness” of the common law in ruling out verbal provocation and concluded (p 718) that Mancini, Holmes and Bedder should no longer be treated as authority on the law of provocation. Lord Morris observed (pp 720-721) that, following enactment of section 3, a jury would not be told that an impotent man could not be a reasonable man. Lord Simon said (p 724) that some of the implications of Bedder constituted “affronts to common sense and any sense of justice” and referred (p 725) to “inconveniences, anomalies and injustices” implicit in that decision. At p 726 he referred again to the “anomalies, inconveniences and injustices” liable to flow from Bedder and concluded (p 727) that it should no longer be followed.

  57. Thirdly, their Lordships rejected the notion that the objective comparison should be made with an abstract, hypothetical, reasonable man. At p 717 Lord Diplock posed the question directed to the facts of the case:

    If the jury think that the same power of self-control is not to be expected in an ordinary, average or normal boy of 15 as in an older person, are they to treat the lesser powers of self-control possessed by an ordinary, average or normal boy of 15 as the standard of self-control with which the conduct of the accused is to be compared?

    Lord Morris (pp 719-720) observed that, before Bedder, the courts seemed to have created the conception of the reasonable man as “a mythical person seemingly not only detached from but also rather remote from the accused person and having certain attributes as laid down by the court”. He continued (p 720):

    To consider the mind of some different person, and to consider what his reactions would have been if comparably provoked could involve an unreal test.

    Lord Simon (p 724) observed that “it hardly makes sense to say that an impotent man must be notionally endowed with virility before he ranks within the law of provocation as a reasonable man ....” He considered (p 725) that

    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.

    He pointed out (p 726) that “The effect of an insult will often depend entirely on a characteristic of the person to whom the insult is directed”.

  58. Fourthly, their Lordships concluded that the objective comparison should be made with a comparator having such of the relevant characteristics of the defendant as the jury consider to be relevant. Lord Diplock (pp 717-718) expressed himself in this way:

    It may be conceded that in 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 accused’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.

    Lord Diplock’s idiomatic reference to old heads on young shoulders was, of course, apt for the particular case, but he was, we think, making the more general point, consonant with the dictates of justice in a context such as this, that like should be compared with like. In his proposed jury direction (p 718) he described the comparator as

    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 [the jury] think would affect the gravity of the provocation to him ....

    Lord Morris (p 721) was of the same opinion:

    In my view it would now be unreal to tell a jury that the notional ‘reasonable man’ is someone without the characteristics of the accused: it would be to intrude into their province. A few examples may be given. If the accused is of particular colour or particular ethnic origin and things are said which to him are grossly insulting it would be utterly unreal if the jury had to consider whether the words would have provoked a man of different colour or ethnic origin – or to consider how such a man would have acted or reacted. The question would be whether the accused if he was provoked only reacted as even any reasonable man in his situation would or might have reacted.

    Lord Simon also agreed (p 727):

    I think that the standard of self-control which the law requires before provocation is held to reduce murder to manslaughter is still that of the reasonable person (hence his invocation in section 3); but that, in determining whether a person of reasonable self-control would lose it in the circumstances, the entire factual situation, which includes the characteristics of the accused, must be considered.

    He added (p 727):

    The jury would, as ever, use their collective common sense to determine whether the provocation was sufficient to make a person of reasonable self-control in the totality of the circumstances (including personal characteristics) act as the defendant did. I certainly do not think that that is beyond the capacity of a jury.

  59. R v Newell (1980) 71 Cr App R 331 is a significant case, first because it was decided relatively shortly after Camplin and secondly, because the Court of Appeal judgment was delivered by Lord Lane CJ, whose experience and authority in this field were unrivalled. The defendant was a chronic alcoholic who at trial advanced unsuccessful defences of diminished responsibility and provocation. It was accepted that he had lost his self-control, and provocation alone was the subject of the appeal. The issue was whether, in making the objective comparison, account could be taken of the defendant’s alcoholism. In giving the judgment of the court Lord Lane made detailed reference to Camplin. He then cited a lengthy obiter passage from the judgment of North J, sitting in the New Zealand Court of Appeal, in R v McGregor [1962] NZLR 1069. In this passage North J, having construed section 169 of the New Zealand Crimes Act 1961, the terms of which do not reproduce section 3 of the 1957 Act, made two essential points.

    • The first (p 1081 of the New Zealand report) was that, for purposes of the objective comparison for which the law of New Zealand, like that of Jersey and England and Wales, provided, the defendant should be presumed to possess in general the power of self-control of the ordinary man, save insofar as his power of self-control was weakened because of some particular characteristic possessed by him, such characteristics potentially including not only physical qualities but also mental qualities and such indeterminate attributes as colour, race and creed, the question being whether such characteristic or attribute distinguished the defendant from the ordinary member of the community.

    • The second point (pp 1081-1082) was that the provocative words or conduct relied on should relate directly to any particular characteristic or attribute said to distinguish the defendant from ordinary members of the community.

    Lord Lane and his colleagues dismissed Newell’s appeal relying on the second of these points, since it was held ((1980) 71 Cr App R 331, 340) that the provocation to which Newell reacted had had no reference to his only arguable distinguishing characteristic of chronic alcoholism. In the later New Zealand case of R v McCarthy [1992] 2 NZLR 550, 558, the Court of Appeal (in a judgment given by Cooke P) was of opinion that this second point made by North J was unsound and had unduly restricted the scope of the provocation defence in New Zealand law. We would for our part accept this criticism of North J’s second point, as the Board did in Luc Thiet Thuan v The Queen [1997] AC 131, 148. But much more significant in the development of English law is Lord Lane’s acceptance of North J’s first point, described by him (p 339) as “entirely apt to the situation in the instant case” and (p 340) as representing “the law of this country”. In the judgment of North J the passage in question was obiter. In that of Lord Lane it was ratio. The Court of Appeal certified a question for the opinion of the House but refused leave to appeal, which was also refused by an appeal committee after an oral hearing (Lord Diplock, Lord Keith of Kinkel and Lord Scarman).

  60. The decision of the Recorder of London in R v Raven, briefly reported at [1982] Crim LR 51, appears to us to have been a substantially correct application of the principles laid down in Camplin and Newell, above. The defendant claimed to have been provoked by sexual attacks made upon him by the victim whom he had killed. It was agreed that the defendant, although aged 22, had a mental age of about 9. The Recorder directed the jury, that, in making the objective comparison, they should consider the reasonable man as having lived the same type of life as the accused for 22 years but with the retarded development and mental age of the accused. In her commentary Professor Birch acknowledged the difficulty of the jury’s task, but saw no other plausible solution which allowed compassion to human infirmity. We agree. If the jury concluded that the defendant had indeed been provoked by the sexual attacks upon him to lose his self-control and kill, and also that his powers of self-control were reduced by his retarded mental age, but were precluded by law from taking account of this reduction when making the objective comparison, it would seem clear that the law would be requiring more from an imperfect creature than he could perform.

  61. The defendant in R v Ahluwalia [1992] 4 All ER 889 had, on the evidence, suffered cruel treatment at the hands of her husband over a number of years. She advanced a defence of provocation at trial but this did not succeed, rightly so as the Court of Appeal held (p 898) because there had been no evidence to suggest that the defendant suffered from post-traumatic stress disorder or battered woman syndrome or any other specific condition which could amount to a characteristic. But fresh evidence adduced on appeal with reference to diminished responsibility led the court to quash the conviction and order a retrial so that that defence (not raised at trial) could be investigated. Relevant for present purposes is the acceptance by the court (Lord Taylor of Gosforth CJ, Swinton Thomas and Judge JJ), at p 898, that for the defence of provocation “characteristics relating to the mental state or personality of an individual can also be taken into account by the jury, providing they have the necessary degree of permanence”. The court referred to the evidence which would normally be anticipated when special characteristics relating to mental state or personality of a defendant are put forward as matters for the jury to consider. The defendant’s appeal in R v Dryden [1995] 4 All ER 987 failed because, as the Court of Appeal (Lord Taylor of Gosforth CJ, Macpherson and Steel JJ) held at p 998, he had not lost his self-control. But the court was of opinion (p 998) that there were features of the defendant’s character or personality which fell into the category of mental characteristics and which ought to have been specifically left to the jury.

  62. The 17-year old defendant in R v Humphreys [1995] 4 All ER 1008 had fatally stabbed a man nearly twice her age who had, over a period, treated her violently and oppressively. There was evidence that she had a seriously abnormal personality, and her main defence at trial was provocation. The trial judge directed the jury as a matter of law (see p 1014) not to attribute to the reasonable young woman, in her situation, any of the seriously abnormal characteristics which a medical witness had found in the defendant, and she was convicted of murder. After a very detailed consideration of the authorities, the Court of Appeal (Hirst LJ, Cazalet and Kay JJ) held at p 1022 that the judge should have left for the jury’s deliberation two characteristics of the defendant 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. The appeal was allowed, and a conviction of manslaughter substituted for that of murder.

  63. In R v Morhall [1993] 4 All ER 888 the Court of Appeal (Lord Taylor of Gosforth CJ, Owen and Blofeld JJ) dismissed an appeal by a defendant whose defence of provocation had been rejected at trial and who had been convicted of murder. The sole ground of appeal related to provocation. He was addicted to glue-sniffing and contended that he had been provoked to lose his self-control and kill a companion who had nagged him about his addiction. The issue concerned the objective comparison test, and the Crown argued (p 893) that characteristics repugnant to the concept of a reasonable man did not qualify for consideration. The court accepted (p 893) that physical deformity, colour, race, creed, impotence and homosexuality were examples of characteristics which were consonant with the concept of a reasonable man and should, where they existed, be left to the jury to consider. But (p 894) a self-induced addiction to glue-sniffing was wholly inconsistent with the concept of a reasonable man: to accept it would stultify the test and result in the so-called reasonable man being a reincarnation of the defendant. On further appeal to the House of Lords ([1996] AC 90) the defendant succeeded, his conviction of murder was quashed and a conviction of manslaughter substituted. Lord Browne-Wilkinson, Lord Slynn of Hadley, Lord Nicholls of Birkenhead and Lord Steyn all agreed with the leading opinion of Lord Goff of Chieveley. In the course of his opinion Lord Goff pointed out (p 98) that in an appropriate case it might be necessary for the trial judge to refer to circumstances affecting the gravity of the provocation to the defendant but not falling within the description “characteristics”, as for example the defendant’s history or the circumstances in which he was placed at the relevant time, citing Lord Diplock’s reference in Camplin to “the particular characteristics or circumstances” of the defendant and Lord Simon’s reference to “the entire factual situation including the characteristics of the defendant”. When directing the jury on the objective comparison, the judge was entitled to say that they must take into account the entire factual situation, and in particular that the provocation was directed at a habitual glue-sniffer taunted with his habit, when considering the question whether the provocation was enough to cause a man possessed of an ordinary man’s power of self-control to act as the defendant did. Lord Goff rejected (pp 98-99) the Court of Appeal’s view that discreditable or shameful features of a defendant’s personality or history should be excluded from the jury’s consideration, and concluded (p 100) that the trial judge should have directed the jury to take into account the fact of the defendant’s addiction to glue-sniffing when considering whether a person with the ordinary person’s power of self-control would have reacted to the provocation as the defendant did. Save for some minor points of terminology, we respectfully agree with the thrust of these observations. It would plainly be meaningless, if not absurd, to consider the likely or possible effect of taunts about glue-sniffing on a person who was not a glue-sniffer.

  64. The decision of the Court of Appeal (Lord Taylor of Gosforth CJ, Hidden and Ebsworth JJ) in R v Thornton (No 2) [1996] 1 WLR 1174 succeeded that of the House in R v Morhall, above. The appellant, who had been violently abused by her husband over a period, fatally stabbed him, was convicted of murder and unsuccessfully challenged her conviction on appeal. At trial she had advanced a defence of diminished responsibility but not provocation, although the trial judge had properly invited the jury to consider that possible defence. The case was referred to the court by the Secretary of State under section 17 of the Criminal Appeal Act 1968, and detailed consideration was given in the reserved judgment delivered by the Lord Chief Justice to the possible relevance of the battered woman syndrome from which, it was said, the appellant had been suffering at the relevant time. The court held (pp 1181-1182) that this was potentially relevant to both the factual or subjective and the objective or comparative limbs of the provocation defence. In the light of fresh evidence the court concluded (p 1183) that two characteristics of the appellant (her personality disorder and the effect of the deceased’s abuse over a period upon her mental make-up) were capable of being regarded as relevant characteristics of the appellant for purposes of the objective comparison and that the jury should have been invited to consider them. The appeal was allowed, the conviction quashed and a retrial ordered, at which the appellant was convicted of manslaughter.

  65. The decisions to which we have referred in Newell, Raven, Ahluwalia, Dryden, Humphreys, Morhall and Thornton (No 2) were, in our respectful opinion, faithful to the principles laid down by the House in Camplin. Importantly, they reflected the rationale of the provocation defence, both in its recognition of the sanctity of human life and its allowance for human imperfection. The effect of the decisions was not to abrogate the important safeguard provided by the objective comparison, and there is nothing in these cases to suggest that short temper or undue pugnacity or excitability could begin to excuse the deliberate taking of a human life. The cases do, however, make clear that the objective comparison is a matter for the opinion of the jury, as Parliament had enacted, with such properly expressed judicial guidance as might be appropriate in the particular case. And they make clear, as Camplin had done, that the question is not whether the defendant showed such self-control as an abstract hypothetical person would have done but such self-control as would reasonably be expected of a person having such of his attributes as the jury thought relevant in the factual situation in which the defendant actually found himself at the relevant time.

  66. We cannot accept that Luc Thiet Thuan v The Queen [1997] AC 131 was correctly decided by the majority of the Board (Lord Goff of Chieveley, Sir Brian Hutton and Sir Michael Hardie Boys, Lord Steyn dissenting). At trial in Hong Kong the defendant adduced evidence of significant brain damage on which he sought to rely to support defences of provocation and diminished responsibility, contending that this brain damage had impaired his powers of self-control. But the judge rejected the relevance of the evidence to provocation and the jury convicted the defendant of murder, with the inevitable result that he was sentenced to death. The Court of Appeal of Hong Kong dismissed the defendant’s appeal, holding that the judge had been right to disregard this evidence for the purpose of provocation. A majority of the Board upheld this decision. While Mr. Peter Thornton QC, for the respondent in the present appeal, made a number of apt criticisms of the reasoning of the majority, we would respectfully highlight three major points of disagreement, each of them in our view important:

    1. The majority judgment gives little or no weight to the rationale of the provocation defence, to which, (as in Bedder, above) scant reference was made. It is of course impossible to know what the Hong Kong jury would have made of the medical evidence in the context of provocation had they been allowed to consider it. But if they had considered it, and had concluded that the defendant’s brain damage might have impaired his ability to resist provocation in the way that a person without his brain damage could reasonably have been expected to do, the possibility must exist that he was sentenced to die when a defendant without his mental disability would not have been. If this is so, the harshness of the old law, which section 3 of the 1957 Act (reproduced in Hong Kong) was in Lord Diplock’s judgment (Camplin, p 716) intended to mitigate, has survived.

    2. We cannot reconcile the majority’s reading of the speeches in Camplin with what their Lordships said in that case, discussed at some length above. The majority (pp 140-141) attribute to the House in Camplin acceptance of Professor Ashworth’s observation (“The Doctrine of Provocation” [1976] CLJ 292, 300) that

      The proper distinction .... is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused’s level of self-control should not,

      leading the majority to conclude (p 144) that

      There is no basis upon which mental infirmity on the part of the defendant which has the effect of reducing his powers of self-control below that to be expected of an ordinary person can, as such, be attributed to the ordinary person for the purposes of the objective test in provocation.

      There is, however, nothing in the report of argument or the speeches to suggest that the House in Camplin was referred to the article of Professor Ashworth, and consideration of the gravity of the provocation cannot rationally and fairly be divorced from consideration of the effect of the provocation on the particular defendant in relation to both limbs of the defence. Otherwise one is not comparing like with like, and is losing sight of the essential question whether, in all the circumstances, the defendant’s conduct was to some degree excusable.

    3. We would not accept that the defences of diminished responsibility and provocation are as sharply demarcated as the majority (pp 146-147) suggest. It is noteworthy that Lord Simon at pp 726-727 of his speech in Camplin quoted with approval para 53 of a Working Paper of the Criminal Law Revision Committee on Offences Against the Person (August 1976):

      In this country the law on this matter [provocation] has been indirectly affected by the introduction of the defence of diminished responsibility. It is now possible for a defendant to set up a combined defence of provocation and diminished responsibility, the practical effect being that the jury may return a verdict of manslaughter if they take the view that the defendant suffered from an abnormality of mind and was provoked. In practice this may mean that a conviction of murder will be ruled out although the provocation was not such as would have moved a person of normal mentality to kill.

      The neat demarcation favoured by the majority might be persuasive if sections 2 and 3 of the 1957 Act (reproduced in articles 3 and 4 of the Jersey Law) had a common origin, but this is not so: section 2 was based on rules developed in the Scottish courts (not recommended for adoption by the Royal Commission) and section 3 on the recommendation of the Royal Commission already referred to. There is, as Lord Hoffmann pointed out in R v Smith (Morgan) [2001] 1 AC 146, 168, nothing to suggest that Parliament considered the possibility of overlap between the two defences. In practice the defences have routinely been advanced in tandem, as in Newell, Dryden and Morhall above. In R (Farnell) v Criminal Cases Review Commission [2003] EWHC 835 (Admin), 15 April 2003, Mitchell J considered (para 9 of his judgment) that the two defences of diminished responsibility and provocation were “certainly not mutually exclusive”. If the jury conclude that the defendant has not discharged the burden imposed upon him to establish that his responsibility for a killing was substantially diminished by an abnormality of mind from which he was suffering (a test heavily criticised by much expert psychiatric opinion: see para 5.44 of the Final Report of the Law Commission on Partial Defences to Murder, August 2004) there is no reason of logic or fairness why the jury should not, on appropriate evidence, consider, with reference to both limbs of the provocation defence, whether the prosecution have excluded the possibility that the mental characteristics or personal history of the defendant may have rendered him susceptible to provocation in a way which a person without those characteristics and that history might not have been, so as to render his conduct to some degree more excusable.

  67. The division of opinion expressed in Luc Thiet Thuan, above, was repeated in R v Smith (Morgan), above. We would accept the decision of the majority, for the reasons which they gave and which it is unnecessary to repeat. We are of course aware that the majority decision in R v Smith (Morgan) has attracted much adverse comment, and we have already recognised (para 44 above) that the law of homicide stands in urgent need of comprehensive and radical reform (see, for example, Blom-Cooper and Morris, With Malice Aforethought (2004)). We must however administer the law as it is, and we consider that the reasoning of the majority in Smith (Morgan) is loyal to the rationale of the provocation defence, faithful to the principles laid down in Camplin, above, and consistent with the correct interpretation of section 3 of the 1957 Act which meant, as Lord Diplock pointed out in Camplin at p 716, that the reasonable man test fell to be applied now in the context of a law of provocation significantly different from what it had been before the Act was passed. That the majority reasoning lends itself to clear, sensible and intelligible directions is in our opinion exemplified in the direction of Hallett J quoted by the Court of Appeal in R v Weller [2003] EWCA Crim 815, 26 March 2003, para 20, and Mantell LJ, giving the judgment of the court, succinctly described what we regard as the correct approach in paras 16-17 of his judgment:

    16.

    In our view it is to be concluded from the majority speeches in Smith 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.

    17.

    This approach 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 avoids categorising human defects into one category or the other, which would otherwise be necessary and is surely artificial. We refer in particular to the difficulties which arose in R v Dryden [1995] 4 All ER 987 and to R v Humphreys [1995] 4 All ER 1008. It is all a matter for the jury.

  68. We need say little about the present appeal. Had the only evidence been that any loss of self-control by the defendant had been caused by self-induced intoxication, his provocation defence would necessarily have failed. It is a very well-established rule, on which we would wish to throw no doubt whatever, that criminal conduct cannot be excused by drunkenness unless it is so extreme as to preclude the necessary intent: see, for example, R v Thomas (1837) 7 C&P 817, 820; R v McCarthy [1954] 2 QB 105, 112; R v Fenton (1975) 61 Cr App R 261, 263-264; R v Newell (1980) 71 Cr App R 331, 339-340; R v Morhall [1996] AC 90, 99-100. In this case, however, there was an issue, raised by the expert evidence, whether the defendant’s chronic alcoholism had the effect of rendering him abnormally susceptible to provocation quite apart from any drink he had consumed. The defendant relied not on the disinhibiting effect of the drink he had taken, a contention which would have been doomed to certain failure, but on the disease of chronic alcoholism from which he suffered and its effect on his ability to resist provocation. The Deputy Bailiff directed the jury not to take this into account, and the Court of Appeal held this to be a misdirection: 2003 JLR 22, paras 17-19. It would not seem likely, on the facts, that the jury, appropriately directed and guided, would have returned a different verdict. But we cannot say that the careful and closely reasoned judgment of the Court of Appeal was wrong in law, and we would for our part dismiss this appeal. We must however accept that the effect of the majority decision is as stated in para 1 of the majority judgment.

    Lord Carswell

    (dissenting)

  69. I also regret that I do not find it possible to join in the opinion expressed by the majority of the Board. I fully agree with the reasons given and the conclusions reached in the dissenting opinion of my noble and learned friends Lord Bingham of Cornhill and Lord Hoffmann and wish to add only a few brief reasons of my own.

  70. I do not propose to discuss the many decisions in which the courts have sought to define and apply the principles of the law governing provocation in murder cases or to trace the historical development of that branch of the law, both of which tasks have been performed with great care in the minority opinion. I think that it is possible to find justification for either conclusion in the material put before the Board and that one is eventually faced with a policy choice between the two.

  71. In developing the criminal law the courts should strive to meet three important criteria: its principles should fit a logical pattern; it should be capable of explanation to a jury; and, above all, it should achieve justice. My concern is that the law of provocation accepted as correct by the majority of the Board fails to meet these criteria.

  72. The dichotomy expressed by the Board in Luc Thiet Thuan v The Queen [1997] AC 131, and approved by the majority in the present appeal, was neatly expressed by Professor AJ Ashworth in his influential article The Doctrine of Provocation [1976] CLJ 292 at 300:

    The proper distinction .... is that individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused’s level of self-control should not.

    I cannot myself see any convincing logical ground for this distinction. It is, however, always as well to remember the famous remark of Oliver Wendell Holmes Jr about logic and the law, the full version of which bears repetition, for it could have been written about this very topic (The Common Law (1881), p 1):

    The life of the law has not been logic: it has been experience. The felt necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have had a good deal more to do than the syllogism in determining the rules by which men should be governed.

    That said, I regard the dichotomy as an unsatisfactory compromise, which should be maintained only if one is compelled to do so by necessary interpretation of the governing legislation or if there are good practical grounds to support it.

  73. For the reasons set out in the opinion of Lord Bingham of Cornhill and Lord Hoffmann I consider that the view which they take of the law, in agreement with that of the majority in R v Smith (Morgan) [2001] 1 AC 146, is consistent with the terms of section 3 of the Homicide Act 1957 and its analogue article 4 of the Homicide (Jersey) Law 1986. I hold the very clear view that the dichotomy between the gravity of the provocation and the level of self-control in reaction cannot readily be made comprehensible to a jury by the directions fashioned by a judge with the greatest care and clarity. I am unable to agree with the majority judgment in the present appeal (page 11) that “any difficulties in this regard have been exaggerated”. I am rather in wholehearted agreement with the remark of Thomas J in the New Zealand case of R v Rongonui [2000] 2 NZLR 385, 446 that most trial judges had seen

    the glazed look in the jurors’ eyes as, immediately after instructing them that it is open to them to have regard to the accused’s alleged characteristic in assessing the gravity of the provocation, they are then advised that they must revert to the test of the ordinary person and disregard that characteristic when determining the sufficiency of the accused’s loss of self-control.

    The formula is not only opaque (per Lord Hoffmann in R v Smith (Morgan) at p 173), but even if it can be comprehended by an intelligent jury, they are more than likely to ask themselves how they can sensibly decide whether an ordinary person would have reacted as the defendant did if he would not have found the acts or words provocative in the first place.

  74. That is not to say that the solution adopted by the majority in R v Smith (Morgan) is free of difficulties. The most fundamental one is the interpretation of section 3 of the 1957 Act, which gives the appearance of requiring an objective test. Yet once one rejects the notion that the comparison should be made with an abstract, hypothetical reasonable man, there is in my opinion sufficient ground for the majority’s solution. It has been said that this gives insufficient weight to the standards of society, but it enables the jury, who for that purpose are a microcosm of society as a whole, to apply their standards of justice. Concerns have also been expressed about the relationship between the defence of diminished responsibility provided for in section 2 of the 1957 Act and that of provocation in section 3. There has been unease at the possibility that a defence of provocation may be made out of an unproved case of diminished responsibility. But the defences are not in my opinion mutually exclusive and in practice they are commonly run in tandem. This is not unacceptable in principle, for the two defences not only have different historical antecedents, but differ in the burden and standard of proof.

  75. If one finds the dichotomy illogical, inexplicable and unjust, as I do, then one must, in order to achieve an acceptable standard of justice agree with the conclusion reached by the majority in R v Smith (Morgan). The approach was described by Lord Hoffmann at pp 173-174 in a passage which lucidly summarises the function of the court:

    The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up. In most cases, nothing more will need to be said. But the jury should in an appropriate case be told, in whatever language will best convey the distinction, that this is a principle and not a rigid rule. It may sometimes have to yield to a more important principle, which is to do justice in the particular case. So the jury may think that 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 and which it would be unjust not to take into account. If the jury take this view, they are at liberty to give effect to it.

  76. Applying this principle in cases involving drunkenness, such as the appeal before the Board, is by no means a simple matter. One might wish that drunkenness could be dealt with in a simple fashion: one might exclude the defence in cases of self-induced intoxication by refusing as a matter of policy to admit that as a relevant characteristic (see R v Morhall [1996] AC 90), and one might deal with the disease of alcoholism solely under diminished responsibility (see R v Tandy [1989] 1 WLR 350). In this way one might remove drunkenness from the ambit of provocation altogether. I do not think that the law as it stands would support such a solution, so I would accept that the Court of Appeal was correct in holding that the judge should have directed the jury that they could take into account the defendant’s chronic alcoholism when considering the defence of provocation. I accordingly agree that the appeal should be dismissed.

  77. I should not like to leave this case without registering my strong agreement with both the majority and minority that the law of homicide needs comprehensive and fundamental reform. It is a patchwork of rules which makes coherent direction of juries unnecessarily difficult and reflects no credit on our legal system. Judges are bound to apply the law as it is, but that does not prevent one from reminding the world at large and the legislature in particular, that there is a real risk that the present law, containing as it does so many difficulties in its application, may cause injustice in individual cases, even where it is faithfully and correctly communicated to a jury. I do not propose to dilate upon the alternatives, a unified offence of unlawful killing or permitting the jury to return a verdict of murder with mitigating circumstances, allied with the abolition of the mandatory death penalty. They do exist, however, and the adoption of one or other would simplify the law, removing the need for the extended discussion of the minutiae of provocation and the differences of opinion among judges. The latter I genuinely regret, but as the law stands I must join the dissent.


Cases

R v Smith (Morgan) [2001] 1 AC 146; Luc Thiet Thuan v The Queen [1997] AC 131; R v Camplin [1978] AC 705; R v Morhall [1996] AC 90; R v Kirkham 8 Car & P 115; R v Welsh (1869) 11 Cox CC 336; Mancini v Director of Public Prosecutions [1942] AC 1; R v Duffy [1949] 1 All ER 932; R v Raven [1982] Crim LR 51; R v Ahluwalia [1992] 4 All ER 889; R v Hayward (1833) 6 C&P 157; R v Thomas (1837) 7 C&P 817; Holmes v Director of Public Prosecutions [1946] AC 588; R v Baillie [1995] 2 Cr App R 31; R v Mawgridge (1707) Kel 119; R v Selten (1871) 11 Cox CC 674; R v Alexander (1913) 9 Cr App R 139; R v McCarthy [1954] 2 QB 105; R v Lesbini [1914] 3 KB 1116; Bedder v Director of Public Prosecutions [1954] 1 WLR 1119; Reyes v The Queen [2002] UKPC 11, [2002] 2 AC 235; Phillips v The Queen [1969] 2 AC 130; R v Newell (1980) 71 Cr App R 331; R v Ahluwalia [1992] 4 All ER 889; R v Dryden [1995] 4 All ER 987; R v Humphreys [1995] 4 All ER 1008; R v Thornton (No 2) [1996] 1 WLR 1174; R (Farnell) v Criminal Cases Review Commission [2003] EWHC 835 (Admin); R v Rongonui [2000] 2 NZLR 385; R v Tandy [1989] 1 WLR 350

Legislations

Homicide Act 1957: s.2, s.3

Homicide (Jersey) Law 1986: Art.4

Authors and other references

Law Commission Report, “Partial Defences to Murder”, (Law Com no 290) (2004 Cm 6301)

Russell on Crime, 11th ed. (1958), ed JWC Turner, vol 1

Working Paper of the Criminal Law Revision Committee on Offences Against the Person (August 1976)

Prof AJ Ashworth, The Doctrine of Provocation [1976] CLJ 292


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