Provocation: Objective Test
| Author | Catherine Elliott |
| DOI | 10.1350/jcla.2006.70.1.23 |
| Published date | 01 February 2006 |
| Date | 01 February 2006 |
| Subject Matter | Privy Council |
Privy Council
Provocation: Objective Test
Attorney General for Jersey vHolley [2005] UKPC 23, [2005] 3 WLR 29
The case arose in the Jersey courts and concerned the law on provoca-
tion. This defence is contained in article 4 of the Homicide (Jersey) Law
1986 which is effectively the same as the Homicide Act 1957, s. 3. The
defendant was a chronic alcoholic, had a depressive and anxious person-
ality, and was dependent on alcohol and female partners. He had a
violent relationship with his girlfriend. Following an argument with her
in a public house the defendant had returned to their flat where he spent
the afternoon chopping wood and drinking lager. She later returned to
the flat and told him that she had just had sexual intercourse with
another man. He picked up the axe, intending to leave the flat and chop
some more wood, when the deceased said ‘You haven’t got the guts’. He
then struck the victim with the axe, killing her.
At his trial the defendant admitted killing the victim and the only
issue was provocation. He was convicted of murder. He appealed and the
Court of Appeal allowed his appeal on the ground that there had been a
misdirection on provocation. A retrial was ordered and he was convicted
but made a further appeal. The Court of Appeal again allowed his appeal
on the ground of a misdirection on provocation, as the House of Lords’
decision in R v Smith (Morgan)[2001] 1 AC 146 had not been correctly
followed. The trial judge had directed the jury that if a person is under
the influence of alcohol at the time of the killing, and as a result is
provoked more easily than if he were sober, this cannot be taken into
account in his favour. This was held by the Court of Appeal to be a
misdirection because the judge should have drawn a distinction be-
tween being drunk, which gives rise to no arguable ground of provoca-
tion, and suffering from the disease of alcoholism, which was a matter to
be taken into account. The trial judge had also effectively directed the
jury to ignore the defendant’s characteristic of depression, which the
Court of Appeal considered should be taken into account. The court
decided that it would not be appropriate to order a further retrial, but
instead a verdict of manslaughter was entered. The Attorney-General
brought an appeal to the Privy Council while giving an undertaking not
to seek to restore the defendant’s conviction for murder to avoid unfair-
ness to the defendant.
H
ELD
,
ALLOWING THE APPEAL
,but for procedural reasons the order to
reduce the defendant’s liability from murder to manslaughter made by
the Court of Appeal was allowed to stand. The central question for the
Privy Council was what characteristics of the actual defendant could be
given to the reasonable person in assessing whether they would have
reacted in the way the defendant did to provocation. An enlarged Board
of nine judges heard the case and a majority of six refused to follow the
House of Lords’ decision in Smith (Morgan). The Privy Council considered
23
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