Provocation: Objective Test; Precedent
| Author | Damian Warburton |
| DOI | 10.1350/jcla.2006.70.2.121 |
| Published date | 01 April 2006 |
| Date | 01 April 2006 |
| Subject Matter | Court of Appeal |
interpretation of the Act, and it has the merit of candour. The difficulties
for factfinders in distinguishing between issues of credibility and pro-
pensity under the old law are well documented (see, for example, R.
Munday, ‘The Paradox of Cross-examination to Credit—Simply Too
Close for Comfort’ [1994] 53 Cambridge Law Journal 303–25). Perhaps
now there will be fewer arguments about the need for ‘intellectual
acrobatics’ (see R v Watts [1983] 3 All ER 101 at 104, per Lord Lane CJ).
The same end might of course have been reached by restricting evidence
admitted under s. 101(1)(g) to the issue of credibility and adopting a
more robust approach to admitting convictions for similar offences.
Of interest in the present case is the suggestion that s. 78 of PACE may
have a role to play in the regulation of bad character evidence. This is a
pleasing development. It would have been easy to note the similarity in
language between s. 78 of PACE and s. 101(3) of the 2003 Act and to
conclude that the implication must have been the obsolescence, in the
context of bad character, of s. 78.
PACE, s. 78(1) states:
In any proceedings the court may refuse to allow evidence on which the
prosecution proposes to rely to be given if it appears to the court that,
having regard to all the circumstances, including title circumstances in
which the evidence was obtained, the admission of the evidence would
have such an adverse effect on the fairness of the proceedings that the court
ought not to admit it.
Section 101(3) of the 2003 Act is cited above.
However, as the Court of Appeal itself notes, s. 101(3) is triggered by
a defence application. It would be unsatisfactory if a judge could not act
on a potential unfairness on his or her own motion. Moreover, one
should be extremely reluctant to infer a parliamentary intention to
remove a layer of protection for a defendant without clear statutory
language to that effect.
Ben Fitzpatrick
Provocation: Objective Test; Precedent
R vFaqir Mohammed [2005] EWCA Crim 1880
The appellant was convicted at first instance of the murder of his
daughter, S, after discovering in her bedroom a young man with whom
she was conducting a secret relationship.
S’s boyfriend, B, was found in her bedroom where he was hiding,
after S had received a mobile telephone warning from her sister that
their father had returned home early from the mosque. This warning
gave S opportunity to lock her bedroom and go downstairs where she
acted as if all was well. However, the appellant had sometime earlier
Provocation: Objective Test; Precedent
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