Provocation: Speculative Defence Not to Be Left to the Jury

Date01 March 2004
Publication Date01 March 2004
SubjectCourt of Appeal
Court of Appeal
Provocation: Speculative Defence Not to Be Left to
the Jury
R vMiao, The Times (26 November 2003)
The appellant had lived together with the woman who was to become
his victim. She returned from a family visit at about 6 pm and not long
after 2 am the appellant carried her to hospital where she was pro-
nounced dead. The time of death was disputed. The appellant said that
she was still alive when he took her to hospital but there was medical
evidence that rigor mortis had set in which indicated that she had been
dead about three hours. The cause of death was strangulation. Subse-
quently, evidence was presented from the victim’s niece that the victim
and the appellant had had an aggressive and violent relationship. The
appellant, charged with murder before Kingston upon Thames Crown
Court, admitted that he had killed the victim but asserted that the
relevant mens reawas lacking. The key issue at the trial was whether the
defendant had intended to kill or cause grievous bodily harm. Prosecut-
ing and defence counsel invited the judge to leave the question of
provocation to the jury, but he declined these requests. The judge
determined that the evidence of provocation was minimal and it clearly
undermined the appellant’s actual defence that he had no intention to
kill. The defendant was convicted of murder and appealed against
conviction on the grounds that the judge’s ruling was wrong.
,if, on a charge of murder, there was
merely a speculative possibility that a defendant might have been pro-
voked by the victim, then the judge should not direct the jury to
consider provocation as a defence. There was no doubt that there was a
speculative possibility in this particular case that the appellant might
have lost his self-control, but in their Lordships’ judgment it was no
more than that and there was no material on which the issue of
provocation could have been left to the jury.
The issue in the present case concerns the roles of judge and jury in
dealing with the provocation defence. It is instructive to consider the
nature of the defence more widely and to compare the UK approach
with that adopted in the USA.
1The role of judge and jury in determining the provocation defence
The defence of provocation is now partially covered by s. 3 of the
Homicide Act 1957, which modifies common law rules. The section
Where on a charge of murder there is evidence on which the jury can find
that the person charged was provoked (whether by things done or by
things said or by both together) to lose his self-control, the question
whether 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 their opinion, it would have on a reason-
able man.
Before the passing of the 1957 Act the judge was entitled to withdraw
the issue of provocation from the jury on the ground that even if the
accused had himself been provoked, no reasonable man would have
reacted in the way he did to the provocation. This led to cases where the
judges held that a reasonable man only lost his self-control when he
found his wife in the act of adultery and not when he had been told of
it; that a reasonable man who was provoked by fists did not retaliate
with a knife but only with fists; that reasonable men would not lose their
self-control when taunted about a peculiar characteristic, for example
impotence, since reasonable men did not possess that characteristic; and
reasonable men would cool off after a certain period of time and regain
their self-control. It is quite clear that insofar as the judges before 1957
were entitled to withdraw the issue altogether from the jury on the basis
of these rules, s. 3 has removed that power. The judge must leave the
issue to the jury if there is evidence that the accused was provoked to
lose his self-control. Thus in R v Doughty (1986) 83 Cr App R 319, the
Court of Appeal held that there was evidence that the accused had been
provoked by the crying of his 17-day-old child; the trial judge was,
therefore, under an obligation to leave the defence of provocation to the
jury. The case seems to illustrate that the Court of Appeal has accepted
that the phrase in s. 3, ‘whether by things done or by things said or by
both together’ is wide enough to cover a baby crying. It is probably not
wide enough to cover a pure act of God, such as damage caused by
lightning, which causes the accused to lose his self-control.
In summary, the changes effected by s. 3, as interpreted by the courts,
are of fundamental importance because this section: (1) establishes that
words alone may be sufficient provocation if the jury decides that they
would have provoked a reasonable man; (2) treats the ‘mode of resent-
ment’ or proportionality rule only as a factor, not a prerequisite, in
judging whether a reasonable man would have acted as the actor did; (3)
takes away the power of the judge to withdraw the defence from the
jury on the grounds that there was no evidence on which the jury could
find that a reasonable man would have been provoked to do as the
defendant had done; (4) authorises the defence to be used if a third
person, not the victim, is the provoker; and (5) removes the power of
the judge to dictate to the jury what are the characteristics of the
reasonable man. It is clear that a dual test applies. The provocation must
not only have caused the accused to lose his self-control, but must also
be such as might cause a reasonable man to react to it as the accused
On the issue of provocation the defendant bears an evidential burden.
This means that it is up to the defendant to make sure that by the time
the judge sums up to the jury, there is some evidence that he was
provoked. It does not mean that he must specifically raise the defence as
Provocation: Speculative Defence Not to Be Left to the Jury

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