R v Acott
| Jurisdiction | England & Wales |
| Judge | LORD MUSTILL,LORD NOLAN,LORD NICHOLLS OF BIRKENHEAD,LORD STEYN,LORD HOFFMANN |
| Judgment Date | 20 February 1997 |
| Judgment citation (vLex) | [1997] UKHL J0220-2 |
| Date | 20 February 1997 |
| Court | House of Lords |
[1997] UKHL J0220-2
HOUSE OF LORDS
Lord Mustill
Lord Nolan
Lord Nicholls of Birkenhead
Lord Steyn
Lord Hoffmann
My Lords,
I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn, for the reasons which he gives, I also would dismiss this appeal.
My Lords,
For the reasons given in the speech to be delivered by my noble and learned friend, Lord Steyn, which I have read in draft and with which I agree, I too would dismiss the appeal.
My Lords,
For the reasons given by my noble and learned friend Lord Steyn, with which I agree, I also would dismiss this appeal.
My Lords,
On 19 June 1995 at the Central Criminal Court, the appellant was convicted of the murder of his mother. He appealed to the Court of Appeal (Criminal Division) on a number of grounds. In a reserved judgment the Court of Appeal dismissed his appeal: Reg. v. Acott [1996] 4 All.E.R. 443. The appeal to your Lordships House is directed to one issue only, namely the ruling of the Court of Appeal on provocation.
In his summing up to the jury the Recorder of London had not left the issue of provocation to the jury. On appeal to the Court of Appeal (Criminal Division) counsel for the appellant submitted that the recorder should have left the issue of provocation to the jury and should have directed the jury upon it. In giving the judgment of the court Rougier J. stated that the vital question was "what sort of evidence must exist before the judge's duty to leave the issue of provocation to the jury is triggered?" Rougier J. considered this question in some detail. In a careful judgment he concluded that "there was no evidence to enable the jury to come to any determination as to what provocation, if any, was offered to the appellant." He held that the recorder came to the correct conclusion in not leaving the issue of provocation to the jury. In these circumstances the court dismissed the appeal. The Court of Appeal (Criminal Division) certified that there was a point of law of public importance involved in the decision to dismiss the appeal namely:
"In a prosecution for murder, before the Judge is obliged to leave the issue of provocation to the jury, must there be some evidence, either direct or inferential as to what was either done or said to provoke the alleged loss of self-control?"
The Court of Appeal granted leave to appeal.
Given the narrow focus of the appeal it is possible to summarise the background to the case briefly.
The trial
The trial took place in June 1995 before the Recorder of London. The the prosecution case was as follows. In 1993 the appellant lived with his mother. He was 48 years old and his mother was 78 years of age. At 9.15 p.m. on 17 February 1993 the appellant, in a state of agitation, telephoned for an ambulance. He said that his mother had been injured as the result of a fall. The ambulance men met the appellant in his mother's bungalow and found the deceased dead on the floor of the hallway. An examination showed that the deceased had sustained multiple injuries, particularly in the area of the head, face and neck.
The appellant was of good character. He was a mild man. He worked until 1991 when he gave up his job and moved to Rainham to live with his mother. The appellant tried to obtain another job but he was unsuccessful. After exhausting his savings he became financially dependent on his mother. He found his dependence on his mother somewhat irksome. But in his interviews and at the trial he repeatedly said he was very fond of his mother. There was other evidence to the same effect. In accordance with a recent will of his mother he was her sole beneficiary.
When questioned by the police and at the trial the appellant consistently denied that he was responsible for his mother's death. He said his mother had come to his bedroom to say "goodnight" and almost immediately afterwards he heard her fall. He said he tried to help her but she fell again. He tried to pick her up and she again fell heavily. He tried to resuscitate her, he thumped her chest and slapped her face in an effort to bring her round. He said her injuries had been caused by her falls and his unskilled efforts to resuscitate her.
Three pathologist's testified: two pathologists, with varying degrees of emphasis, said that the deceased died as a result of a sustained attack; and a third pathologist testifying on behalf of the defence said the injuries were explicable on the basis of the defendant's account.
The appellant's case at the trial was therefore that he had not attacked his mother and that he was entitled to a complete acquittal. Counsel in their speeches and the recorder in his summing up treated it as a case involving a single issue. The recorder directed the jury that "This is murder or nothing." The jury rejected the appellant's explanation and, having been given the directions required by law in regard to burden and standard of proof, the jury convicted the appellant of murder by a majority verdict.
The evidence said to justify a direction on provocation
It is now possible to summarise the materials relied on by the appellant in support of the argument before the Court of Appeal, which was repeated before your Lordships' House, that the judge ought to have left provocation as an issue to the jury. First, counsel for the appellant pointed out correctly that leading counsel for the Crown had repeatedly put to the appellant in cross examination that he had lost his self control and attacked his mother. Counsel for the Crown cross examined on the basis that the appellant had been angered by his mother treating him like a little boy and berating him. Counsel for the appellant submitted that the Crown had made provocation an issue and that accordingly the judge should have summed up on provocation. Instead, counsel for the appellant said, the judge reminded the jury of these passages in the evidence but failed to leave the issue of provocation to the jury.
Counsel for the appellant further argued that the extent of the injuries to the deceased was testimony to a frenzied attack which was prima facie indicative of a loss of self control. Moreover, counsel argued that this inference was reinforced by the cumulative effect of the following factors: the appellant was unemployed; he was in the humiliating position of having to ask his mother for money; the evidence was that she sometimes treated him like a little boy; she was given to black moods; and apparently sometimes she drank excessively.
The decision of the Court of Appeal
Rougier J. said that the issue of provocation caused the court some anxiety. He was willing to accept that there was evidence tending to suggest that the appellant lost his self control. After analysing the statute and the authorities, he concluded [1996] 4 All E.R. 443, 453A-F:
"In our judgment, having considered the authorities, before a judge is required by the statute to leave the issue of provocation to the jury, there must be some evidence of provocation in its active sense, in other words some evidence of what was done or what was said to provoke the homicidal reaction. Such evidence will, in the vast majority of cases, be direct. It is possible that it could arise by inference-for instance if, shortly before his death, the deceased was heard to say that he proposed to go and taunt the defendant upon a matter whereon the latter was known to be particularly sensitive. But it is not enough that the evidence should merely indicate that the defendant had lost his temper, possibly as a result of some unidentified words or actions, for people occasionally work themselves into a fury and erupt with no external provocation at all. If it were otherwise, the jury would have no material upon which they could make the objective judgment demanded by the statute. To direct them to determine whether the provocation in question was enough to make a reasonable man do as the defendant did, without the slightest inkling of what the provocation was, would be to ask the impossible. …
"From the foregoing it follows that since there was no evidence to enable the jury to come to any determination of fact as to what provocation, if any, was offered to the appellant, we do not consider that it was incumbent on the recorder to put the issue before them, and he was right not to do so."
These are the conclusions of the Court of Appeal which were challenged on appeal to your Lordships House.
The general principles
Before I turn directly to an analysis of the issues on this appeal it is necessary to summarise the principles of law so far as they may affect this appeal. Section 3 of the Homicide Act 1957 reads as follows:
"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...
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