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[2005] UKPC 23
2
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
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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 defendants
response to it: see Lord Millett, at page 211.
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 defendants 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
defendants conduct is excusable.
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 defendants 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 defendants addiction to alcohol
has reached the stage that he is suffering from the disease of
alcoholism.
26. Next, in recent years much play has been made of the mental
gymnastics required of jurors in having regard to a defendants
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.
29. In the four years before the deceaseds 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 Elyse 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.
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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 havent 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 defendants 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 defendants
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 defendants consumption of alcohol. Professor Eastman, a
consultant forensic psychiatrist, considered that the defendants
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 defendants 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,
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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.
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
Bailiffs 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.
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
defendants 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 defendants 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 defendants 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
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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.
______________
at once a sacred regard for human life and also a respect for
mans failings, and will not require more from an imperfect
creature than he can perform.
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
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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 defendants 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
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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.