Court of Appeal
| DOI | 10.1350/jcla.68.3.186.34447 |
| Date | 01 June 2004 |
| Published date | 01 June 2004 |
| Subject Matter | Court of Appeal |
Court of Appeal
Provocation: Relevance of Defendant’s Jealousy and
Possessiveness
R v Weller [2003] EWCA Crim 815, [2003] Crim LR 724
The defendant, aged 34, had been cohabiting with his girlfriend, aged
18, for over five months. A vicious argument transpired when she
expressed a wish to end their relationship, and she spent the night with
a friend. Subsequently, when she attempted to remove her belongings
from their shared flat, a heated argument ensued about her conduct
with other men. The defendant strangled her and hid the body, but then
surrendered himself to the police two days later. At trial, the defence of
provocation was raised and evidence was presented that the defendant
was unduly possessive and jealous. The trial judge gave the following
direction to the jury on provocation: ‘You of course make allowances for
human nature and the power of emotions but you have to consider and
decide what society expects of a man like this defendant in his position.’
After the jury intimated that they had problems in following the direc-
tion on provocation, the trial judge repeated an earlier direction, which
did not include the statement quoted above on societal expectations.
Following conviction for murder, an appeal was launched on the prem-
ise that the trial judge, in directing the jury, failed to direct them
specifically that as part of the equation of whether the defendant should
reasonably have controlled himself, they should consider his jealousy
and possessiveness.
H
ELD
,
DISMISSING THE APPEAL
,the trial judge had left open-ended to
the jury the consideration of the characteristics upon which the appel-
lant sought to rely. Moreover, it was inconceivable, despite the omission
to refer explicitly to societal expectations in summing up, that the jury
failed to take into account the defendant’s obsessive and jealous nature
in evaluating whether or not the provocation was sufficient to provide
such excuse as might reduce the offence from murder to manslaughter.
An interpretation of the majority speeches of the House of Lords in R v
Smith (Morgan) [2001] 1 AC 146 led to the inevitable concomitant that
the jury should take all matters into account in determining whether the
defendant should have controlled himself. In essence, this embraces a
whole portmanteau of interests related to the actual defendant, his
mental state, the kind of individual he was, and the prevailing circum-
stances in which the death occurred. The judge must avoid instructing
the members of the jury that they ought to, as a matter of law, avoid any
specific aspect.
C
OMMENTARY
The result of this decision is to effect a laissez-faire ‘free for all’ on the
incorporation of relevant characteristics as part of the ‘objective’
186
determination of provocation. It is instructive to review earlier cases to
comprehend the changing judicial mindset of the last decade.
1. Development of the objective test
The provocation must be enough to make a reasonable person do as the
accused did or, as developed, what society expects of a man like this
defendant in his position. The position was examined by the House of
Lords in the leading case of DPP v Camplin [1978] AC 705.
In Camplin the accused, who had been drinking, went to the house of
a middle-aged man, K, whom he had been blackmailing over a homo-
sexual relationship K was having with a friend of the accused. While he
was there the accused was buggered by K, according to the accused, by
force. After the act of buggery the accused claimed that he was overcome
with remorse and shame, especially when he heard K laughing over his
sexual triumph and he hit K over the head twice with a heavy chapatti
pan, killing him. The accused was charged with murder and at his trial
rested his defence solely on the issue of provocation, thus, seeking to
reduce the offence to manslaughter. From the point of view of the case,
the major factor in dispute was whether the jury should have been
advised not to pay any regard to the fact that at the time of the killing the
accused was only 15 years old. In the event the jury were directed to
apply the criterion of whether a reasonable man of full age would in like
circumstances have acted as the respondent had done. The accused was
convicted of murder, but this was reduced on appeal to a conviction for
manslaughter. The Court of Appeal certified that there was a point of
law of general public importance involved in the case, namely whether
on the prosecution for murder of a boy of 15, where the issue of
provocation arises, the jury should be directed to consider the question,
under s. 3 of the Homicide Act 1957, whether the provocation was
enough to make a reasonable man do as he did by reference to a
‘reasonable adult’ or by reference to a ‘reasonable boy’. The House of
Lords confirmed the decision of the Court of Appeal. Their Lordships
took the view that if the accused possesses a characteristic which is
relevant to the provocation, the jury must be able to take it into
consideration. Lord Diplock suggested that the proper test for a jury
would be as follows (at 718):
The judge should state what the question is, using the very terms of the
section. He should then explain to them that the reasonable man referred
to in the question is a person having the power of self-control to be
expected of the 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 in like circumstances would be provoked to
lose his self-control, but also would react to the provocation as the accused
did.
The judge should only draw the age of the accused to the attention of the
jury where the age might be relevant to the way in which the accused
responded to the provocation. In Camplin it was the fact that a 15-year-
old would clearly find it harder to cope with the provocation than would
Provocation: Relevance of Defendant’s Jealousy and Possessiveness
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