Court of Appeal
| Published date | 01 April 1995 |
| Date | 01 April 1995 |
| DOI | http://doi.org/10.1177/0032258X9506800203 |
| Subject Matter | Court of Appeal |
Court
of
Appeal
Provocation: Speculative Defence Not to Be Left to
the Jury
Rv
Miao,
The Times (26 November 2003)
The appellant
had
lived
together
with
the
woman
who
was to become
his victim. She
returned
from a family visit at
about
6
pm
and
not
long
after 2
am
the
appellant carried
her
to hospital
where
she
was pro-
nounced
dead. The time of
death
was disputed. The appellant said
that
she was still alive
when
he took
her
to hospital
but
there
was medical
evidence
that
rigor mortis
had
set in
which
indicated
that
she
had
been
dead
about
three
hours. The cause of
death
was strangulation. Subse-
quently, evidence was
presented
from
the
victim's niece
that
the
victim
and
the
appellant
had had
an aggressive
and
violent relationship. The
appellant, charged
with
murder
before Kingston
upon
Thames
Crown
Court,
admitted
that
he
had
killed
the
victim
but
asserted
that
the
relevant mens rea was lacking. The key issue at
the
trial was
whether
the
defendant
had
intended
to kill or cause grievous bodily
harm.
Prosecut-
ing
and
defence counsel invited
the
judge
to leave
the
question of
provocation to
the
jury,
but
he declined these requests. The
judge
determined
that
the
evidence of provocation was minimal
and
it clearly
undermined
the
appellant'S actual defence
that
he
had
no
intention
to
kill. The
defendant
was convicted of
murder
and
appealed against
conviction
on
the
grounds
that
the
judge'S ruling was wrong.
HELD,
DISMISSING
THE
APPEAL,
if, on a charge of murder,
there
was
merely aspeculative possibility
that
a
defendant
might
have
been
pro-
voked by
the
victim,
then
the
judge should
not
direct
the
jury
to
consider provocation as a defence. There was no
doubt
that
there
was a
speculative possibility in this particular case
that
the
appellant might
have
lost his self-control,
but
in
their
Lordships'
judgment
it was no
more
than
that
and
there
was
no
material on
which
the
issue of
provocation could
have
been
left to
the
jury.
COMMENTARY
The issue in
the
present
case concerns
the
roles of
judge
and
jury
in
dealing
with
the
provocation defence.
It
is instructive to consider
the
nature
of
the
defence
more
widely
and
to compare
the
UK approach
with
that
adopted
in
the
USA.
IThe role
of
judge
and
jury
in determining the provocation defence
The defence of provocation is
now
partially covered by s. 3 of
the
Homicide Act 1957,
which
modifies
common
law rules. The section
provides:
Where
on
acharge 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
96
Provocation:
Speculative
Defence
Not to Be Left to the Jury
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 reason-
able man.
Before
the
passing of
the
1957 Act
the
judge
was entitled to
withdraw
the
issue of provocation from
the
jury
on
the
ground
that
even
if
the
accused
had
himself
been
provoked,
no
reasonable
man
would
have
reacted in
the
way
he did to
the
provocation. This led to cases
where
the
judges held
that
areasonable
man
only
lost his self-control
when
he
found his wife in
the
act of adultery
and
not
when
he
had
been
told of
it;
that
areasonable
man
who
was provoked by fists did
not
retaliate
with
a knife
but
only
with
fists;
that
reasonable
men
would
not
lose
their
self-control
when
taunted
about
apeculiar characteristic, for example
impotence, since reasonable
men
did
not
possess
that
characteristic;
and
reasonable
men
would
cool off after acertain period of time
and
regain
their
self-control.
It
is
quite
clear
that
insofar as
the
judges before 1957
were
entitled to
withdraw
the
issue altogether from
the
jury
on
the
basis
of these rules, s. 3 has
removed
that
power. The judge
must
leave
the
issue
to
the
jury
if
there
is evidence
that
the
accused was
provoked
to
lose his self-control. Thus in RvDoughty (1986) 83 Cr AppR319,
the
Court of Appeal held
that
there
was evidence
that
the
accused
had
been
provoked by
the
crying of his 17-day-old child;
the
trial
judge
was,
therefore,
under
an
obligation to leave
the
defence of provocation to
the
jury. The case seems to illustrate
that
the
Court of Appeal has accepted
that
the
phrase
in s. 3,
'whether
by things
done
or by things said or by
both
together'
is wide
enough
to cover ababy crying.
It
is probably
not
wide
enough
to cover a
pure
act of God,
such
as damage caused by
lightning,
which
causes
the
accused to lose his self-control.
In summary,
the
changes effected by s. 3, as interpreted by
the
courts,
are of
fundamental
importance because this section: (1) establishes
that
words
alone
may
be sufficient provocation if
the
jury
decides
that
they
would
have
provoked
areasonable
man;
(2) treats
the
'mode
of resent-
ment'
or proportionality rule
only
as a factor,
not
aprerequisite, in
judging
whether
areasonable
man
would
have
acted as
the
actor did; (3)
takes
away
the
power
of
the
judge
to
withdraw
the
defence from
the
jury
on
the
grounds
that
there
was
no
evidence on which
the
jury
could
find
that
areasonable
man
would
have
been
provoked to do as
the
defendant
had
done; (4) authorises
the
defence to be used if a third
person,
not
the
victim, is
the
provoker;
and
(5) removes
the
power
of
the
judge
to dictate to
the
jury
what
are
the
characteristics of
the
reasonable
man.
It
is clear
that
a
dual
test applies. The provocation
must
not
only
have
caused
the
accused to lose his self-control,
but
must
also
be
such
as might cause areasonable
man
to react to it as
the
accused
did.
On
the
issue of provocation
the
defendant
bears
an
evidential
burden.
This
means
that
it is up to
the
defendant
to
make
sure
that
by
the
time
the
judge
sums
up
to
the
jury,
there
is some evidence
that
he was
provoked.
It
does
not
mean
that
he
must
specifically raise
the
defence as
97
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