Notes of Cases
| Published date | 01 November 1978 |
| DOI | http://doi.org/10.1111/j.1468-2230.1978.tb01497.x |
| Date | 01 November 1978 |
NOTES
OF
CASES
PROVOCATION-THE
NEW
LAW
IN
D.P.P.
v.
Cumplin
first the Court
04
Appeal
and
then the House
of
Lords’-for different reasons-decided that the
fact
that
a
defendant charged with murder was 15 years old at the time
of
the
killing was a matter which the jury was entitled to bear in mind when
considering whether the prosecution had proved beyond all reasonable
doubt that he was not provoked. In reaching this conclusion the
House
of
Lords overruled its
own
earlier decision
in
Bedder
v.
D.P.P.3
which the Court
of
Appeal
had
sought
to
distinguish. The
point certified by the Court
of
Appeal
as
being one
of
general public
importance was
“
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 Homicide
Act
1957,
whether the provocation was enough to make
a
reasonable man
do
as
he did by reference to
a
‘reasonable boy
of
15.’”4
The House
of
Lords approached the problem in general terms with
the result that in addition to
Bedder’s
case,
Mancini
v.
D.P.P.5
and
Holrnes
v.
D.P.P.‘
also have been oven-uled. The outcome was that
the trial judge was held
to
have misdirected the jury and the
defendant’s conviction was
reduced
from
murder to one
of
man-
slaughter. He had killed
a
man under circumstanw which, he
submitted, would have provoked any reasonable 15-year-old man
into
kding;
but following
Bedder’s
case
the trial judge instructed the
jury to ignore the age
of
the defendant. In the words
of
Bridge L.J.
in
the Court of Appeal7 they were told that “the criterion to be
applied
in
deciding whether
a
reasonable man would have reacted,
to whatever provocation the jury found established by evidence, in
the way that the appellant did, was
a
man
of
full age and maturity.”
Bedder’s
case
involved
a
man whose sexual impotence was said to
have
been
the reason why a prostitute had taunted and struck him
with the result that he had killed her in a rage. When tried for murder
the jury was instructed (correctly, in the opinion
of
the House
d
Lords) that it had to consider the
&ect
of
the deceased‘s conduct
on
an ordinary person with the result that a sexually impotent
man
would not be entitled
to
rely on provocation which would not have
made an ordinary person
act
as the accused did.
Unanimously, the Court
of
Appeal distinguished
Bedder’s
case
when hearing Camplin’s appeal. Giving judgment for himself and
Willis and Chrichton
JJ.,
Bridge
L.J.
said that:
1
[1978]
1
All
E.R. 1236.
2
[I9781 2
All
E.R. 168.
3
ri954i 2
AI~
E.R. 801.
4
i1978i
1
All
E.R. 1236, 1242; [1978] 2
All
E.R. 167
and
170.
5
[1941]
3
All
E.R. 272.
6
[I9461 2
A11
E.R. 124.
7
[1978]
1
All
E.R. 1236, 1238.
722
NQV.
19781
NOTES
OF
CASES
723
“(a)U the defects which the ‘reasonable
man’
test
is
designed
to
exclude
are
abnormalities, but youth, and the immaturity
which
naturally
ascompanies youth,
are
not
deviations from the
norm;
they
are
norms
through which we must
ali
of
us
have
passed
before attaining adulthood and maturity.”
By approaching the
matter
in
this
way in order not
to
give an
advantage
to
the exceptionidly sensitive,
excitable,
or
hot-tempered
perm
who might
seek
to raise the defence
d
provocation, the
Court
of
Appeal
sought
to
explain the
&&
of
don
3
d
the
Homicide
Act
1957
whiah had made important changes in the law.
The
section
refers to the
“
reamable
man
”;
and the
court
accepted
the submission by
counsel
for the defendant that while
this
excluded
such matters
as
drunkmess,
impotence, cruelty, hot temper, pugna-
city,
over-sensitivity etc., it could not
be
said
that
want
of
years falls
into the same
category
as
a defect
of
character.
Unanimously the House
of
Lords
dismissed
the prosecution’s
appeal.
Lord
Fraser
and Lord
Scannan.
cmcurred
with Lord Diplock,
and Lord
Morris
and Lord
Simon
gave
their
own
reasom
but
cuncurred
with the
others
on
the
form
which
an
instruction to the
jury
should take
in
suuh
cases.
Lord Diplock pointed out that
Section
3
was
designed to mitigate the
harshness
of
the
common
law
relating to provocation which thereafter
could
include words alone
(and thus
Hdmes
v.
D.P.P.l0
no
longer
states
the law); moreover,
with the
effect
of
overruling
Mmki
v.
D.P.P.”
the
Act
requires it
to be left to the
jury
to decide whether
a
reasonable man might have
reacted to the provocation,
if
there
is
any evidence at
all
that the
d
lost his
d-cmtrd
in response thereto. Lord Diplock said
that this mitigation would be stultified
unless
the
jury
could
take
into
account
all
thase
factors which would
affect
the gravity
of
the
provocation;
and
the result
of
the
1957
Act
is
therefore
that
the law
as
stated in
Bedder’s
case,
to
the
effect
that unusual physical
chafdcerktics
were
to
be
ignored, must
be
revised.
He
pfd
this view to that
of
the Court
of
Appeal,
though he acknowledged that
thu rdg
in
Bedder’s
case
would permit
of
the Wnction
between
normal and abnormal characteristics. Lord Simm
was
of
the same
view, considering that
Bedder’s
case
had been
“
undermined
”
la
by
section
3.
Lord
MQ&
said that the changes effected by
section
3
were such that
“a
jury
is
fully
entitled to
cunsider
whether an
accused
person,
placed
as
he was, only acted
as
even
a reasonable
*
[1978] 1
All
E.R.
1236, 1241.
9
’‘
Where
on
a charge of murder there is evidence
on
which the jury
can
And
that
the
person
charged was
provoked
(whether by things done
or
by things said
or
by both together)
to
lose
his
selfcontrol,
the question whethw 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
thek opinion, it would have
on
a reasonable man.”
10
[1946] 2
Ai-E.R.
124.
11
[1941]
3
All
E.R.
272.
12
119781
2
All
E.R.
168, 182.
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