Descent into Murder: Provocation's Stricture—The Prognosis for Women Who Kill Men Who Abuse Them
| Published date | 01 August 2007 |
| DOI | 10.1350/jcla.2007.71.4.342 |
| Date | 01 August 2007 |
| Subject Matter | Article |
Provocation’s Stricture—The
Prognosis for Women Who Kill
Men Who Abuse Them
Susan Edwards*
Abstract
This article considers the ruling in Attorney-General for Jersey v
Holley1 and its impact on limiting the ambit of the defence of provocation
by restoring to the reasonable person a normative capacity for self-control.
In particular, the implications of this limitation on legal outcome in cases
where women kill men who abuse them are explored. The inevitable
demise of provocation as a defence, which follows from the ruling in
Holley, is of particular concern as is the new framework for sentencing
in convictions for murder2 which in removing judicial discretion from the
sentencing decision prohibits judges from tempering the harshness of
the mandatory sentence. This new murder/sentencing regime will un-
doubtedly result in injustice, especially in those cases where battered
women kill, which, although deserving of mitigation, nevertheless fail to
satisfy the strictures of provocation’s requirements post Holley, thereby
resulting in an increase in convictions for murder. The Law Commission’s
report on Murder, Manslaughter and Infanticide3 recommends a new
framework for murder and manslaughter, including a new definition of
provocation and also a new direction in the murder sentencing frame-
work. This area of the law is still far from fixed.
In Attorney-General for Jersey v Holley4 the defendant, a chronic alcoholic,
killed his girlfriend in the course of an argument. The deceased had said
to the defendant, ‘You haven’t got the guts’. Holley struck and killed her
with an axe. At trial, he adduced medical evidence to the effect that
chronic alcoholism was a disease and, as such, a characteristic attribut-
able both to the reasonable person and to the assessment of his capacity
for self-control. The deputy bailiff directed the members of the jury to
consider whether, in their view, any characteristic of the accused could
be considered as a characteristic of the reasonable person which affected
his capacity for self-control, qualifying this direction by excluding
drunkenness (as a matter of public policy) from their consideration with
regard to capacity for self-control. Holley was convicted of murder. On
* Professor of Law, University of Buckingham, Barrister, (Door Tenant) Clarendon
Chambers, 1, Plowden Buildings, Temple, London; e-mail:
susan.edwards@buckingham.ac.uk. The author would like to acknowledge the
support of a Stanley Dennison Research grant, awarded by the University of
Buckingham.
1 [2005] UKPC 23, [2005] 2 AC 580.
2 Criminal Justice Act 2003, s. 269 and Sched. 21.
3 Murder, Manslaughter and Infanticide, Law Com. Report No. 304, HC 30, 28
November 2006, available at www.lawcom.gov.uk/lc_reports.htm, accessed 22 May
2007.
4 [2005] UKPC 23, [2005] 2 AC 580.
342
Provocation’s Stricture—The Prognosis for Women Who Kill Men Who Abuse Them
appeal, the Court of Appeal of Jersey substituted a verdict of man-
slaughter on the basis that the trial judge’s ruling had amounted to a
misdirection since, in its opinion, chronic alcoholism was a characteristic
which could be considered both as relevant to the objective test and to
the assessment of capacity for self-control. The Attorney-General for
Jersey appealed to the Privy Council which considered the question of
whether the gravity of provocation was to be assessed with reference to
a defendant’s particular characteristic(s) and whether loss of self-control
was to be judged by applying a uniform objective standard of self-
control. The Privy Council decided by a majority of six Law Lords (Lords
Bingham, Hoffmann, and Carswell dissenting) in the affirmative on
both questions.
If there was any doubt whatsoever as to the authority of the Privy
Council in Holley, such doubts were laid to rest in the Court of Appeal in
the conjoined appeals of James and Karimi5 in which it was held that the
ruling in Holley was indeed binding (because of the unique composition
of its members)6 and was to be preferred to the majority decision in the
House of Lords in Smith (Morgan)7 (which had permitted admission of
psychiatric evidence in the assessment of the defendant’s capacity for
self-control). James was convicted of the murder of his wife in 1979. In
2003, having completed a life sentence, his application to the Criminal
Cases Review Commission (CCRC) to refer the case to the Court of
Appeal was accepted, following the expansion of the law on provocation
in Smith (Morgan), specifically with reference to a defendant’s capacity
for self-control. In 1997, Karimi, the second appellant, was convicted of
the murder of his wife’s lover, Sirvan Kabadi. He appealed to the Court
of Appeal on the ground that the specific expansion of the law in Smith
(Morgan) (cited above), was also relevant to his defence of provocation.
On 9 February 2005, the Court of Appeal allowed Karimi’s appeal on the
ground that the ruling in Smith (Morgan) had indeed changed the law on
provocation with regard to how the court should approach the issue of
capacity for self-control. However, the court, in quashing the original
conviction, ordered a retrial on the basis that it was a question for the
jury as to whether or not his capacity for self-control had been lowered.
Before the retrial was heard on 4 October 2005, Holley supervened. At
Karimi’s retrial, the judge followed the ruling in Holley and in directing
the jury said, that the capacity for self-control was fixed and not varia-
ble, such that Karimi’s contention that his capacity for self-control had
been lowered became an extant argument. The jury subsequently con-
victed Karimi of murder. Exceptionally, Karimi appealed once again and
in January 2006, the Court of Appeal heard together the appeals of
James and Karimi as both turned on whether the capacity for self-
control was a normative standard (Holley) or a variable standard (Smith
(Morgan)), and, in Karimi’s case, whether the trial judge at the retrial had
been correct in applying the ruling in Holley (on this point).
5 R v James, R v Karimi [2006] EWCA Crim 14, [2006] 1 All ER 759.
6 See, e.g., J. Elvin, ‘The Doctrine of Precedent and the Provocation Defence: A
Comment on R v James’ (2006) 69 MLR 819.
7 R v Smith (Morgan) [2000] 4 All ER 289.
343
The Journal of Criminal Law
The Court of Appeal declared that Smith (Morgan) was no longer law and
that the judge presiding at Karimi’s retrial had correctly applied Holley in
ruling on the second limb of provocation relating to capacity for self-
control. The relevant ruling in Holley had stated:
Under the statute the sufficiency of the provocation (‘whether the provoca-
tion 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 defendant’s
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 defendant’s conduct is
‘excusable’.8
In consequence, both James’s and Karimi’s applications to quash their
respective convictions failed.
Capacity for self-control
What passes for ‘loss of self-control’ has been rigidly prescribed to
include indignation (justification) or anger (excuse), whereas other
emotional states such as grief, despair, hysteria, fear, or terror, have not
been deemed referable or pertaining to the state of ‘loss of self-control’.9
The courts have considered both the amount of loss required and the
reasons for that loss. In Rossiter10 the court said evidence of provocation
‘however tenuous’ is all that is required. The phrase ‘however tenuous’
has been taken to apply to both the degree of loss of self-control and also
to the evidence of provocative conduct on the part of the deceased.11
Lord Steyn in Acott said: ‘A loss of self-control caused by fear, panic,
sheer bad temper or circumstances (for example, slowing down of traffic
due to snow) would not be enough.’12
The issue in Holley considered whether capacity for self-control is a
variable or fixed standard. Severing the characteristic from the capacity
8 Attorney-General v Holley [2005] UKPC 23, [2005] 2 AC 580 at [22]
9 D. M. Kahan and M. C. Nussbaum, ‘Two Conceptions of Emotion in Criminal Law’
(1996) 96 Col LR 269.
10 R v Rossiter (1992) 95 Cr App R 326.
11 Ibid. Russell LJ stated: ‘We take the law to be that wherever there is material
which is capable of amounting to provocation, however tenuous it may be, the
jury must be given the privilege of ruling upon it‘ (at 332); and, ‘We are firmly of
the view that, however well intentioned in what was otherwise a full and careful
direction to the jury, on this occasion Boreham J fell into error in failing to leave
the issue of provocation for the jury's determination. There was, in our judgment,
sufficient evidence in the case taken as a whole to demand that that course be
taken. It follows that this conviction for murder cannot stand’ (at 333).
12 See Lord Steyn in R v Acott [1997] 1 All ER 706, HL: ‘There must be some
evidence tending to show that the killing might have been an uncontrolled
reaction to provoking conduct rather than an act of revenge. Moreover, although
there is no longer a rule of...
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