Holmes v DPP

Sandlands K.C. and Elizabeth Lane for the appellant. If the argument for the appellant prevails a verdict of manslaughter should be substituted for that of murder. The House would have jurisdiction to quash the conviction of murder and remit the case to the Court of Criminal Appeal and that court would treat the case as one of manslaughter: Criminal Appeal Act, 1907, s. 5, sub-s. 2; R. v. Prince^F1; R. v. Roberts^F2, and R. v. Ball^F3. The wife's confession temporarily deprived the appellant of self-control and all his acts, including the pressing of her neck, were part of that same loss of self-control. It was for the jury to say whether there was a loss of self-control and, if so, how long it lasted. The effect of such a confession cannot be timed with a stop-watch. Malice aforethought, essential to the crime of murder is established by proving that the act was done intentionally and was not provoked; it is disproved by showing that the act was not done intentionally and was provoked. If there is a doubt whether the act was intentional or whether it was provoked the jury should acquit of murder. The word is used in the sense in which “provocation” was used in Mancini v. Director of Public Prosecutions^F4, viz., something resulting in a reasonable man being temporarily deprived of his powers of self-control. There was in this case such provocation as is recognized by law. [They referred to Blackstone's Commentaries, Book IV., pp. 190–1; R. v. Morley^F5; R. v. Royley^F6; R. v. Pearson^F7; R. v. Errington^F8; and R. v. Sherwood^F9.] In R. v. Rothwell^F10 the issue of manslaughter was left to the jury. There the alleged provocation was a wife's confession of adultery. Several blows were struck by the accused, and suspicion had been aroused long before the attack. The test put by the judge was whether the provocation was such as would be calculated to affect an ordinary reasonable man. Accordingly the decision was in a sense a forerunner of Mancini v. Director of Public Prosecutions^F11. R. v. Jones^F12 was a case of a killing on a sudden confession of adultery. R. v. Birchall^F13 was a case of the accused's unfounded suspicion of adultery between his wife and his brother leading him to kill his brother: see also R. v. Alexander^F14. In R. v. Palmer^F15 the court declined to extend the doctrine of provocation to the killing of a fiancée and in R. v. Greening^F16 the court declined to extend it to the case of unmarried persons living together: see also R. v. Ellor^F17; R. v. Phillis^F18; R. v. Hall^F19 and R. v. Kirkham^F20. Woolmington v. Director of Public Prosecutions^F21 dealt only with a case where at the end of the evidence the jury were left in honest doubt whether or not there was provocation; it did not deal with the question what constituted provocation. Just as negligence depends on circumstances so does provocation. Nothing can justify the court in laying down a rule for all time, since what may provoke one generation may not provoke another. Whether or not there is provocation is a question of fact. The only test that can be safely laid down so as to apply to all the cases of changing morals and manners is the test laid down in Mancini v. Director of Public Prosecutions^F11. That case further decided that wherever there was evidence on which a jury could say that they were in doubt ether or not the act was provoked the issue should be left to the jury. The present was such a case as that. Wherever either spouse has made a confession of adultery to the other, even without any attendant circumstances of further aggravation, it is for the jury, to say whether there was sufficient provocation. There are really two questions for the jury: (a) Would a reasonable person so lose self-control as to act as the accused did? and (b) Had the accused so lost control when he did the act in question? The matter should be left generally to the jury with the guiding principle laid down in Mancini v. Director of Public Prosecutions^F22. It is safer to trust to the good sense of ordinary reasonable men than to attempt to limit the operation of the principle by excluding certain matters as matters of law. [They referred to R. v. Roberts^F23 and R. v. Tompson^F24.]

Elizabeth Lane following. One must distinguish, at any rate historically, between two kinds of provocation (a) a blow or insulting words, and (b) the discovery of a spouse's adultery. The earlier authorities drew a clear distinction between them. As to the latter, on the authorities it was to be treated as such that it might reduce a killing from murder to manslaughter, provided there had been no time for cooling, even though the fatal blow was struck with intent to kill. That was the law until Mancini v. Director of Public Prosecutions^F22, which now governs the matter. [She referred to Blackstone's Commentaries, Book IV., p. 191; R. v. Mawgridge^F25; R. v. Manning^F26, and R. v. Birchall^F27.] It is still the law that the fact that there was an...