R v Morhall
| Jurisdiction | England & Wales |
| Judge | Lord Goff of Chieveley,Lord Browne-Wilkinson,Lord Slynn of Hadley,Lord Nicholls of Birkenhead,Lord Steyn |
| Judgment Date | 20 July 1995 |
| Judgment citation (vLex) | [1995] UKHL J0720-2 |
| Court | House of Lords |
| Date | 20 July 1995 |
[1995] UKHL J0720-2
HOUSE OF LORDS
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
Lord Goff of Chieveley
Lord Browne-Wilkinson
Lord Slynn of Hadley
Lord Nicholls of Birkenhead
Lord Steyn
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT IN THE CAUSE
My Lords,
This case raises once more the question of the proper direction to be given to a jury on provocation. On 30 January 1992 the appellant. Alan Paul Morhall. was convicted, after a trial before Alliott J. and a jury, of the murder of Stephen Denton. The circumstances in which the appellant killed the deceased are set out in the judgment of the Court of Appeal, delivered by Lord Taylor of Gosforth C.J. [1993] 4 All E.R. 888, 889, whose account I gratefully adopt.
"During the daytime on 7 June 1991 the deceased and one Donnellan had been taking the appellant to task over his glue sniffing. At about 5 pm they were at his flat during an argument between the deceased and his girlfriend, also over his glue sniffing of which she disapproved. She left. Later, the deceased and Donnellan went out a couple of times. The appellant was sniffing glue when they left and when they returned. By 10 pm, when they came back with some cider and beer, the appellant was 'high'. He was unsteady and his speech was affected. The deceased resumed nagging him about his glue sniffing. At about 2 am the deceased went out and brought in some food. Whilst the other two ate, the appellant carried on glue sniffing. The deceased chided him again and then head-butted him. The appellant picked up a hammer and hit the deceased on the head. A fight ensued. It was broken up by Donnellan, who got the appellant to go to his bedroom. However, the deceased would not stop. He said, 'I am not having that. I am going to do him.' He went to the appellant's bedroom and Donnellan heard crashing and banging. When he went in the appellant was holding the Commando dagger and the deceased said. 'The bastard has stabbed me.' Donnellan wrestled with the appellant. Meanwhile, the deceased had gone down to the next landing where he fell to the floor. He had been fatally stabbed."
Before the Court of Appeal, the sole ground of appeal related to the judge's direction to the jury on provocation. He directed the jury as follows:
"Provocation is some act, or series of acts done, and/or words spoken, which causes in the defendant a sudden and temporary loss of control and which would cause a reasonable person to lose his self-control and to behave as the defendant did. You therefore have to consider two questions. One, did the allegedly provoking conduct cause the defendant to lose his self-control? Two, might that conduct have caused a reasonable person to lose his self-control and to behave as the defendant did? As to the second question, take into account everything said and done that you find happened on that occasion in the defendant's flat and you take that into account according to the effect which in your opinion it would have on a reasonable man. A reasonable man is a person having the powers of control to be expected of an ordinary person of the age of the defendant …."
However, in the absence of the jury, Mr. Henderson for the appellant drew the attention of the judge to the fact that he had not referred to the characteristic of the defendant that he was addicted to glue-sniffing, and submitted that was a matter which had to be "taken into account in deciding what a reasonable man would do…" As a result, when the jury returned, the judge added the following passage to his direction to the jury on provocation.
"So far as the addiction to glue is concerned, the matter that Mr. Henderson wished to raise, and which is why I sent the remainder of you out, after others for more compelling reasons, so we could discuss this in your absence was this. Going to provocation, he invites me to say to you that the addiction — as opposed to the short term consequences of that addiction — but the addiction is something you should take into account, not least because it was the very topic on which — as he contends and for you to decide — provocative words were uttered."
Before the Court of Appeal, it was submitted that the judge's direction was inadequate because it failed to bring home to the jury that the appellant's addiction to glue-sniffing was a characteristic to be taken into account by them when considering the gravity of the provocation. The Court of Appeal however rejected that submission. They preferred the submission of the Crown, which was that characteristics repugnant to the concept of a reasonable man do not qualify for consideration. The Lord Chief Justice (delivering the judgment of the court) stated that otherwise some remarkable results would follow. He continued, at p. 893:
"Not only would a defendant, who habitually abuses himself by sniffing glue to the point of addiction, be entitled to have that characteristic taken into account in his favour by the jury; logic would demand similar indulgence towards an alcoholic, or a defendant who had illegally abused heroin, cocaine, or crack to the point of addiction. Similarly, a paedophile, upbraided for molesting children, would be entitled to have his characteristic weighed in his favour on the issue of provocation. Yet none of these addictions or propensities could sensibly be regarded as consistent with the reasonable man. It is to be noted, and we emphasise, that section 3 refers to 'a reasonable man', not just to a person with the self-control of a reasonable man. Whilst Reg. v. Camplin [1978] A.C. 705 decided that the 'reasonable man' should be invested with the defendant's characteristics, they surely cannot include characteristics repugnant to the concept of the reasonable man. Quite apart from the incongruity of regarding glue, or drug addiction, or paedophilia, as characteristics of a reasonable man, the problem of getting a jury to understand how possession of any of those characteristics, and being bated about it, would affect the self-control of a reasonable man who ex hypothesi would not have such a characteristic, seems to us insuperable."
He expressed the conclusion of the court as follows, at p. 894:
"In our judgment, however, a self-induced addiction to glue sniffing brought on by voluntary and persistent abuse of solvents is wholly inconsistent with the concept of a reasonable man. In effect, Mr. Worsley's argument would stultify the test. It would result in the so-called reasonable man being a reincarnation of the appellant with his peculiar characteristics whether capable of being possessed by a reasonable man or not and whether acquired by nature of by his own abuse."
The Court of Appeal gave leave to appeal to your Lordships' House, certifying that the following point of law of general public importance was involved in the decision:
"When directing a jury on provocation under section 3 of the Homicide Act 1957, and explaining to them in accordance with accordance with the model direction of Lord Diplock in Reg. v. Camplin [1978] A.C. 705, 718E 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 respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him:'
should the Judge exclude from the jury's consideration characteristics and past behaviour of the defendant, at which the taunts are directed, which in the Judge's view are inconsistent with the concept of a reasonable man?"
Provocation is, of course, a defence to a charge of murder. It is essentially a defence at common law; but the common law defence was modified in significant respects by section 3 of the Homicide Act 1957, and he impact of that section on the common law was examined in depth by your Lordships' House in Reg. v. Camplin [1978] A.C. 705.
In his leading speech in that case (with which both Lord Fraser of fully belton and Lord Scarman agreed) Lord Diplock described the historical development of the law on this subject. Historically, actual violence offered by the deceased to the defendant was necessary to establish provocation, subject to two well-established exceptions (discovery by a husband of his wife in the act of adultery, and by a father of a man committing sodomy on his son). Words alone were not capable of amounting in law to provocation, as was confirmed (subject to a possible exception in the most extreme circumstances) by your Lordships' House in Holmes v. Director of Public Prosecutions [1946] A.C. 588.
However an important qualification was engrafted onto the common law principle. By the early 20th century it had become established that it was not enough that the accused himself should have been provoked to act as he did At least after Rex v. Lesbini [1914] 3 K.B. 1116, a dual test had to be complied with, under which the conduct of the deceased towards the accused had to he such as (1) might cause in a reasonable person and (2) actually caused in the accused, a sudden and temporary loss of self-control as a result of which he committed the unlawful act which killed the deceased. The introduction of this "reasonable person" test, which appears to have been an Act of policy designed to set a standard of self-control which must be complied with before the accused is able to rely on the defence of provocation, has given rise to problems which have been discussed by judges in a number of common law jurisdictions, notably in Australia and New Zealand as well as in this country It is this test which forms the mam subject of section 3 of the Act of 1957, Section 3 provides as follows:
"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked...
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