Court of Appeal
| Published date | 01 July 1995 |
| Date | 01 July 1995 |
| DOI | http://doi.org/10.1177/0032258X9506800304 |
| Subject Matter | Article |
Court
of
Appeal
Provocation: Relevance of Defendant's Jealousy
and
Possessiveness
Rv
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 awish 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.
HELD,
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 Rv
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.
COMMENTARY
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
Provocation:
Relevance
of
Defendant's
Jealousy
and
Possessiveness
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 areasonable 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 vCamplin [1978]AC 705.
In
Camplin
the
accused,
who
had
been
drinking,
went
to
the
house of
amiddle-aged man, K,
whom
he
had
been
blackmailing over ahomo-
sexual relationship K was having withafriend 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 Klaughing over his
sexual
triumph
and
he hit Kover
the
head
twice
with
aheavy 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
areasonable
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
whether
the
provocation was
enough
to make areasonable
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
aperson in like circumstances
would
be provoked to
lose his self-control,
but
also
would
react to
the
provocation as
the
accused
did.
The judge shouldonly draw
the
age of
the
accused to
the
attentionof
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
a15-year-
old would clearly find it harder to cope
with
the
provocation
than
would
187
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