R v James (Leslie); R v Karimi (Jamal)
| Jurisdiction | England & Wales |
| Judge | THE LORD CHIEF JUSTICE |
| Judgment Date | 25 January 2006 |
| Neutral Citation | [2006] EWCA Crim 14 |
| Docket Number | Case No: (1)2004/05370 C1; (2)2005/05681 B1 |
| Court | Court of Appeal (Criminal Division) |
| Date | 25 January 2006 |
[2006] EWCA Crim 14
The Lord Chief Justice of England and Wales
The President of the Queen's Bench Division
Mr Justice Poole
Mr Justice Bean and
Mrs Justice Dobbs
Case No: (1)2004/05370 C1; (2)2005/05681 B1
(1) T791001; (2) T20050073
IN THE SUPREME COURT OF JUDICATURE COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM (1) NOTTINGHAM CROWN COURT; (2) CENTRAL CRIMINAL COURT
(1) PETER PAIN J; (2) HHJ FOCKE QC
Royal Courts of Justice
Strand, London, WC2A 2LL
(1)D Ellis QC & R Fortson for the Appellant James
(2)D Bentley & S Elliott for the Appellant Karimi
Sir A Green QC & C Hehir for the Respondents
Lord Phillips CJ:
These two appeals have been heard together because each turns on the true interpretation of section 3 of the Homicide Act 1957 ('section 3'). The court has sat five strong because they raise a novel and important question of the law relating to precedent. Should this court accept that the decision of the Privy Council in Attorney General for Jersey v Holley [2005] UKPC 23; [2005] 2 AC 580 has effectively overruled the decision of the House of Lords in R v Smith (Morgan) [2001] 1 AC 146?
Karimi was convicted of murder in the Central Criminal Court, following a retrial, after a reference by the Criminal Cases Review Commission ('CCRC'), on 4 October 2005. He was sentenced to life imprisonment with a minimum term of 11 years. He came before the court on an application for permission to appeal that had been referred by the Registrar. We granted that permission in the course of the hearing.
James was convicted of murder in the Crown Court at Nottingham and sentenced to life imprisonment. An appeal was dismissed by the court on 23 March 1982. James has been released on licence. His case has been referred by the CCRC.
We shall set out the facts in relation to each appeal in the second part of this judgment. As will appear, the success of each appeal depends upon this court preferring, as the definitive statement of the English law of provocation, the decision of the House of Lords in Morgan Smith rather than the subsequent decision of the Privy Council in Holley.
Background history
The background to these appeals is long and complex. We can and will simplify it. A full account is given in paragraphs 4 to 6 of Lord Hoffmann's speech in Morgan Smith and paragraphs 3 to 16 of the Advice of the majority, delivered by Lord Nicholls of Birkenhead, in A-G v Holley [2005] UKPC 23; [2005] 2 AC 580.
Murder is a common law offence. For well over two hundred years the common law has also recognised a partial defence to a charge of murder in respect of a defendant who killed under provocation. By the end of the 19 th Century the following elements in this defence were established: (i) the provocation had to consist of conduct, usually physical violence, (ii) its effect had to be to make the defendant lose his self-control and (iii) the nature of the provocation had to be such as might make a reasonable man react in the same way as the defendant.
Section 3 of the 1957 Act, passed in response to recommendations of a Royal Commission on Capital Punishment, did not attempt a complete codification of the common law defence of provocation, but set out a partial definition of some of its elements. It provided:
"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 reasonable man."
The test of the reaction of a reasonable man in the context of the law of provocation was never an easy one. On its face the test was objective, but section 3 took the unusual step of preventing the judge from ever withdrawing the issue from the jury. Furthermore, by extending the scope of provocation to things said as well as things done, section 3 made application of the test considerably more complicated. The implications of the change were considered by the House of Lords in R v Camplin [1978] AC 705. The leading speech was given by Lord Diplock. He remarked that where provocation consisted of taunts or insults, these might be directed to particular characteristics of the defendant, so that the gravity of the provocation would depend upon those characteristics. Thus, when considering the gravity of the provocation, it was legitimate to have regard to the particular characteristics of the defendant. Neither the effect nor the correctness of this part of Lord Diplock's speech has since been questioned.
The part of Lord Diplock's speech that has given rise to controversy related to the implications for the test of the reaction of the reasonable man of the fact that the defendant was only fifteen years of age. Lord Diplock held that, when considering whether the defendant's reaction to provocation had been that of a reasonable man, the jury should have regard to the age of the defendant. At the end of his speech, at p.718, he advanced the following as being a proper direction to the jury:
"The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control, to be expected of an ordinary person of the sex and age of the accused, but in other aspects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did."
The controversy
The controversy that subsequently developed in respect of Lord Diplock's speech in Camplin led ultimately to the extraordinary events that have given rise to this appeal. That controversy extends to the true interpretation of a number of decisions that purported to follow Camplin and to the effect of the observations of Lord Goff of Chievely in R v Morhall [1996] AC 90 but we can pick up the story with the decision of the Privy Council in Luc Thiet Thuan v R [1997] AC 131. This was an appeal from Hong Kong and the Board proceeded on the basis that the law of Hong Kong was the same as the law of England. The defendant, who had been convicted of murder, suffered from brain damage which reduced his capacity for self-control. The issue was whether this should have been taken into account when considering whether he had reacted as a reasonable man would have done. In giving the advice of the majority (Lord Goff of Chievely, Sir Brian Hutton and Sir Michael Hardie Boys), Lord Goff purported to follow Camplin. He held that the standard of self-control to be applied was that of the ordinary person, not that of a brain damaged person. Lord Steyn dissented, expressing the view that Lord Diplock in Camplin had held that, when considering the standard of self-control required to satisfy section 3, there must be attributed to the reasonable man any special characteristics of the defendant.
Two decisions of this court followed in which the court declined to follow the majority in Luc Thiet Thuan, holding that the majority decision was in conflict with decisions of the Court of Appeal and that the law of precedent bound the court to prefer its own decisions: R v Campbell [1997] 1 Cr App R 199; ( R v Parker unreported; 25 February 1997).
The controversy came to a head in Morgan Smith, where the Committee consisted of Lord Slynn of Hadley, Lord Hoffmann, Lord Clyde, Lord Hobhouse of Woodborough and Lord Millett. Of these, only Lord Hoffmann remains today a member of the Appellate Committee. The defendant had a mental condition which had the effect of reducing his self-control below that of an ordinary person. The judge directed the jury that they should disregard this mental condition when considering whether a reasonable man would have lost his self-control. The Court of Appeal held that this was a misdirection. The judge should have directed the jury that the defendant's mental impairment was a characteristic that should have been attributed to the notional reasonable man when considering the defence of provocation. The Crown appealed.
Lord Hoffmann gave the leading speech. After a lengthy and erudite account of the history of the law of provocation he turned to consider the construction of section 3. Approaching the question of construction in what he described as the orthodox way he concluded in paragraph 6 that "the concept of the reasonable man as a touchstone of the objective element could not have been intended to be the same" under section 3 as it had been before the 1957 Act. This was to be inferred (i) from the extension of provocation to words and (ii) from the fact that the issue of provocation had to be left to the jury. The jury "were to determine not merely whether the behaviour of the accused complied with some legal standard but could determine for themselves what the standard in the particular case should be". The jury should find the defence of provocation made out where they thought "that the circumstances were such as to make the loss of self control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter".
Lord Hoffmann found support for this conclusion in the English...
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