R v Camplin

JurisdictionEngland & Wales
JudgeLord Diplock,Lord Morris of Borth-y-Gest,Lord Simon of Glaisdale,Lord Fraser of Tullybelton,Lord Scarman
Judgment Date06 April 1978
Judgment citation (vLex)[1978] UKHL J0406-1
Date06 April 1978
CourtHouse of Lords

[1978] UKHL J0406-1

House of Lords

Lord Diplock

Lord Morris of Borth-y-Gest

Lord Simon of Glaisdale

Lord Fraser of Tullybelton

Lord Scarman

Director of Public Prosecutions
(Appellant)
and
Camplin
(Respondent)
(on Appeal from the Court of Appeal (Criminal Division))

Upon Report from the Appellate Committee to whom was referred the Cause Director of Public Prosecutions against Camplin, That the Committee had heard Counsel as well on Monday the 20th as on Tuesday the 21st days of February last upon the Petition and Appeal of the Director of Public Prosecutions of 4/12 Queen Anne's Gate, London S.W.1, praying That the matter of the Order set forth in the Schedule thereto, namely an Order of Her Majesty's Court of Appeal (Criminal Division) of the 25th day of July 1977 might be reviewed before Her Majesty the Queen in Her Court of Parliament and that the said Order might be reversed, varied or altered or that the Petitioner might have such other relief in the premises as to Her Majesty the Queen in Her Court of Parliament might seem meet; and Counsel having been heard on behalf of Paul Camplin the Respondent to the said Appeal; and due consideration had this day of what was offered on either side in this Cause:

It is Ordered and Adjudged, by the Lords Spiritual and Temporal in the Court of Parliament of Her Majesty the Queen assembled, That the said Order of Her Majesty's Court of Appeal (Criminal Division) of the 25th day of July 1977 complained of in the said Appeal, be, and the same is hereby, Affirmed, and that the said Petition and Appeal be, and the same is hereby, dismissed this House.

Lord Diplock

My Lords,

1

For the purpose of answering the question of law upon which this appeal will turn only a brief account is needed of the facts that have given rise to it. The respondent, Camplin, who was fifteen years of age, killed a middle aged Pakistani, Mohammed Lal Khan, by splitting his skull with a chapati pan, a heavy kitchen utensil like a rimless frying pan. At the time the two of them were alone together in Khan's flat. At Camplin's trial for murder before Boreham J. his only defence was that of provocation so as to reduce the offence to manslaughter. According to the story that he told in the witness box but which differed materially from that which he had told to the police, Khan had buggered him in spite of his resistance and had then laughed at him. Whereupon Camplin had lost his self-control and attacked Khan fatally with the chapati pan.

2

In his address to the jury on the defence of provocation Mr. Baker, who was counsel for Camplin, had suggested to them that when they addressed their minds to the question whether the provocation relied on was enough to make a reasonable man do as Camplin had done, what they ought to consider was not the reaction of a reasonable adult but the reaction of a reasonable boy of Camplin's age. The judge thought that this was wrong in law. So in his summing he took pains to instruct the jury that they must consider whether:

"… the provocation was sufficient to make a reasonable man in like circumstances act as the defendant did. Not a reasonable boy, as Mr. Baker would have it, or a reasonable lad; it is an objective test—a reasonable man."

3

The jury found Camplin guilty of murder. On appeal the Court of Appeal (Criminal Division) allowed the appeal and substituted a conviction for manslaughter upon the ground that the passage I have cited from the summing-up was a misdirection. The court held that "the proper direction to the jury is to invite the jury to consider whether the provocation was enough to have made a reasonable person of the same age as the defendant in the same circumstances do as he did."

4

The point of law of general public importance involved in the case has been certified as being:

"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 section 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 adult' or by reference to a 'reasonable boy of 15'."

5

My Lords, the doctrine of provocation in crimes of homicide has always represented an anomaly in English law. In crimes of violence which result in injury short of death, the fact that the act of violence was committed under provocation which had caused the accused to lose his self-control, does not affect the nature of the offence of which he is guilty. It is merely a matter to be taken into consideration in determining the penalty which it is appropriate to impose. Whereas in homicide provocation effects a change in the offence itself from murder for which the penalty is fixed by law (formerly death and now imprisonment for life) to the lesser offence of manslaughter for which the penalty is in the discretion of the judge.

6

The doctrine of provocation has a long history of evolution at common law. Such changes as there had been were entirely the consequence of judicial decision until Parliament first intervened by passing the Homicide Act 1957. Section 3 deals specifically with provocation and alters the law as it had been expounded in the cases, including three that had been decided comparatively recently in this House, viz Mancini [1942] A.C.1.; Holmes [1946] A.C.588 and Bedder [1954] 1.W.L.R. 1119. One of the questions in this appeal is to what extent propositions as to the law of provocation that are laid down in those cases and in particular in Bedder ought to be treated as being of undiminished authority despite the passing of the Act.

7

For my part I find it instructive to approach this question by a brief survey of the historical development of the doctrine of provocation at common law. Its origin at a period when the penalty for murder was death is to be found, as Tindal C.J., echoing Sir Michael Foster, put it in Hayward's Case (1833) 6 C. & P. 157 in "the law's compassion to human infirmity". The human infirmity upon which the law first took compassion in a violent age when men bore weapons for their own protection when going about their business appears to have been chance medley or a sudden falling out at which both parties have recourse to their weapons and fight on equal terms. Chance medley as a ground of provocation was extended to assault and battery committed by the deceased upon the accused in other circumstances than a sudden falling out; but with two exceptions actual violence offered by the deceased to the accused remained the badge of provocation right up to the passing of the Homicide Act 1957. The two exceptions were the discovery by a husband of his wife in the act of committing adultery and the discovery by a father of someone committing sodomy on his son; but these apart, insulting words or gestures unaccompanied by physical attack did not in law amount to provocation.

8

The "reasonable man" was a comparatively late arrival in the law of provocation. As the law of negligence emerged in the first half of the nineteenth century he became the anthropomorphic embodiment of the standard of care required by the law. It would appear that Keating J. in Reg. v. Welsh (1869) 11 Cox C.C.366 was the first to make use of the reasonable man as the embodiment of the standard of self control required by the criminal law of persons exposed to provocation; and not merely as a criterion by which to check the credibility of a claim to have been provoked to lose his self control made by an accused who at that time was not permitted to give evidence himself. This had not been so previously and did not at once become the orthodox view. In his Digest of the Criminal Law published in 1877 and his History of the Criminal Law published in 1883 Sir James Fitzjames Stephen makes no reference to the reasonable man as providing a standard of self-control by which the question whether the facts relied upon as provocation are sufficient to reduce the subsequent killing to manslaughter is to be decided. He classifies and defines the kinds of conduct of the deceased that alone are capable in law of amounting to provocation; and appears to treat the questions for the jury as being limited to (1) whether the evidence establishes conduct by the deceased that falls within one of the defined classes; and, if so (2) whether the accused was thereby actually deprived of his self-control.

9

The reasonable man referred to by Keating J. was not then a term of legal art nor has he since become one in criminal law. He (or she) has established his (or her) role in the law of provocation under a variety of different sobriquets in which the noun "man" is frequently replaced by "person" and the adjective "reasonable" by "ordinary", "average" or "normal". At least from as early as 1914 (See R. v. Lesbini [1914] 3 K.B. 1116), the test of whether the defence of provocation is entitled to succeed has been a dual one: the conduct of the deceased to the accused must be such as (1) might cause in any reasonable or ordinary person and (2) actually causes in the accused a sudden and temporary loss of self-control as the result of which he commits the unlawful act that kills the deceased. But until the Homicide Act 1957 was passed there was a condition precedent which had to be satisfied before any question of applying this dual test could arise. The conduct of the deceased had to be of such a kind as was capable in law of constituting provocation; and whether it was or not was a question for the judge, not for the jury. This House so held in Mancini [1942] A.C. 1 where it also laid down a rule of law that the mode of resentment, as for instance the weapon used in the act that caused the death, must bear a reasonable relation to the kind of violence that constituted the provocation.

10

It is unnecessary for the purposes of the present appeal to spend time on a detailed...

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