Court of Appeal
| Published date | 01 June 2008 |
| DOI | 10.1350/jcla.2008.72.3.493 |
| Date | 01 June 2008 |
| Subject Matter | Court of Appeal |
Court of Appeal
Provocation: Sufficiency of Evidence
R v Serrano [2006] EWCA Crim 3182
Keywords CCRC; Murder; Evidence of provocative conduct; Jury
directions
The appellant (S) had been convicted of murder in 1972 following the
death of the victim as a result of blood inhalation. S and the victim were
known to each other and, on the day of the alleged murder, had been
drinking significant amounts of alcohol. Following this, they had en-
gaged in sexual activity in a driveway. S, an experienced amateur boxer,
then assaulted the victim, causing serious injuries including two jaw
fractures, which led to death.
At trial, S contended that the victim had punched him on the nose
and, as a boxer, his instinctive reaction was to hit her back, misjudging
the severity of the blows. The defence of provocation was not left to the
jury, and S was convicted of murder.
On appeal, submitted via the Criminal Cases Review Commission
under the Criminal Appeal Act 1968, s. 13, S submitted that there was
sufficient evidence of provocation for it to have been left to a jury. It was
argued that the jury’s recommendation of leniency on finding him guilty
at trial was indicative of the fact that they felt some provocation had
taken place. It was submitted that there were four instances of provocat-
ive conduct: (1) the victim’s laughter at his inability to achieve an
erection; (2) her threat to create a scene; (3) the victim’s request for
money; and (4) her assault of S, in particular the punch to his nose.
H
ELD
,
DISMISSING THE APPEAL
, following the provisions of Homicide
Act 1957, s. 3, there must be evidence of ‘things said or done’ which
caused a ‘sudden and temporary loss of self-control’. Evidence of pro-
vocative conduct was merely a matter of speculation and the medical
evidence was consistent with a sustained and consistent attack rather
than the ‘frenzied attack[s]’ which tend to occur as a result of provocat-
ive conduct (at [41]). As it was not possible to state that S’s reaction to
being punched on the nose caused the necessary loss of self-control, the
judge at first instance had been correct not to leave the matter to
the jury.
C
OMMENTARY
The issue in this case rests on not whether the defendant’s reaction to
the alleged provocative conduct was reasonable but whether there was
sufficient evidence of such conduct so as to leave the defence to the jury
in the first place. The court in this instance clearly were of the view that
it was not ‘helpful’ for it to reach a conclusion (at [43]) as it did not need
to ‘come to a conclusion on the facts of this case’ (at [44]) as there was
no evidence of a sudden and temporary loss of self-control given the
nature of the attack.
189The Journal of Criminal Law (2008) 72 JCL 189–202
doi:1350/jcla.2008.72.3.493
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