R v Smith (Morgan James)

JurisdictionEngland & Wales
JudgeLORD SLYNN OF HADLEY,LORD HOFFMANN,LORD CLYDE,LORD MILLETT,LORD HOBHOUSE OF WOODBOROUGH
Judgment Date27 July 2000
Judgment citation (vLex)[2000] UKHL J0727-6
Date27 July 2000
CourtHouse of Lords
Regina
and
Smith
(Respondent) (on Appeal from the Court of Appeal (Criminal Division))

[2000] UKHL J0727-6

Lord Slynn of Hadley

Lord Hoffmann

Lord Clyde

Lord Millett

Lord Hobhouse of Wood-borough

HOUSE OF LORDS

LORD SLYNN OF HADLEY

My Lords,

1

The respondent was charged with murdering James McCullagh on the 16 November 1996. He put forward three defences: (a) lack of intention to cause death or really serious harm; (b) provocation; (c) diminished responsibility. The jury by a majority of ten to two convicted him of murder.

2

The issue raised on this appeal is whether the trial judge properly directed the jury on the defence of provocation in accordance with section 3 of the Homicide Act 1957 which provides

"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".

3

In summary, the defendant's case was that he was suffering from serious clinical depression and that as a result of three incidents involving the deceased (particularly the respondent's belief that the deceased had stolen his tools) he had been so provoked as to lose his self control and to kill him.

4

The trial judge ruled that severe depressive illness was not a matter for the jury to take into account in deciding whether an ordinary man sharing the respondent's characteristics would have lost his self control. In his summing up he told the jury that a depressive state was a characteristic to be taken into account when dealing with the gravity of the provocation but that the fact that the depressive illness might have disinhibited the respondent from behaving violently was irrelevant.

5

The Court of Appeal (Rose L.J., Vice-President, and Potts and Douglas Brown JJ.) allowed the appeal on the direction as to provocation but rejected the other grounds of appeal.

6

Having referred to the many previous decisions on this issue, the Court of Appeal said

" In our judgment the trial judge was wrong to rule and direct the jury as he did. The evidence of Drs Hamilton and Campbell as summarised above ought to have been left to the jury for their consideration. The judge ought to have directed the jury that the evidence of Drs Hamilton and Campbell as to the appellant's mental state, and its impact on his response to provocation, depending on what the jury made of it, was relevant to the objective requirement of provocation. 'May the hypothetical reasonable man possessing the appellant's characteristics as found by the jury have reacted to the provocative conduct so to do what the appellant did?'We have not overlooked the fact that by their verdict the jury rejected the defence of diminished responsibility and must therefore have not been satisfied to the requisite standard of the evidence of Drs Campbell and Hamilton. On this issue, however, the onus of proof was on the appellant. On the issue of provocation it was for the Crown to satisfy the jury that the appellant had not been provoked. In these circumstances, and against the whole background of the evidence in this case, we are of the view that the judge's misdirection renders the appellant's conviction for murder unsafe. This ground of appeal therefore succeeds."

7

The court gave leave to appeal and certified the following question.

"Are characteristics other than age and sex, attributable to a reasonable man, for the purpose of section 3 of the Homicide Act 1957 relevant not only to the gravity of the provocation to him but also to the standard of control to be expected"

8

The exegisis of the defence of provocation together with the reasons for it and its development over three centuries in particular, though its origin is earlier, have been dealt with in detail by counsel for the Crown and for the respondent. That history has been further set out in decisions in your Lordships' House in Reg. v. Camplin [1978] A.C. 705, in Luc Thiet Thuan v. The Queen. [1997] A.C. 131 and in the present case by my noble and learned friend Lord Hoffmann whose opinion I have had the advantage of reading in draft. I do not repeat that history. I agree with the conclusion of both my noble and learned friends Lord Hoffmann and Lord Clyde that the appeal should be dismissed and because of their detailed analysis of the issues involved and their citation of authority I state my own reasons more briefly.

9

The origin of the defence lay in the belief that if a man was so provoked as suddenly to lose all reason and self-control justice or "compassion" required that there should be a verdict of manslaughter rather than of murder which attracted the death penalty. Certain categories of act, such as an insulting assault or seeing one's friend being grievously attacked, came to be recognised as constituting provocation. From the end of the 19th century and during the 20th century, however, the question became not only whether the provocation caused the loss of control which itself led to the fatal blow but also whether the jury considered that the provocation would have caused a reasonable man to lose his self control Reg. v. Welsh (1869) 11 Cox 336.

10

The objective test of the reasonable man reached its high water-mark in your Lordships House in Bedder v. D.P.P. [1954] 1 W.L.R. 1119. The House refused to accept that physical or mental infirmity could be regarded as material in considering whether a man had been provoked and whether a reasonable man could have lost his self control in the circumstances.

11

It is agreed that section 3 of the Homicide Act 1957 was intended to and did change the position at common law; it also defined the defence of diminished responsibility. So in this case it is common ground that in considering whether the accused has been provoked to lose his self control-sometimes described as the gravity of the provocation and said to be a subjective test-it is for the jury to take into account the personal characteristics of the accused. But the Crown contends that when the question is whether a reasonable man would have lost his self control, personal characteristics, subject to very limited exceptions, must be excluded. Only in that way it is said can the test of a reasonable man objectively regarded be applied; only in that way can a uniform assessment be made. Departures from that approach destroy the concept of a reasonable man by whose standard of control the behaviour of the particular individual is to be judged.

12

The respondent says that this approach is unfair and unreal and not required by section 3. A person's response to provocation must be judged by comparison with a reasonable man having the same relevant characteristics as he has.

13

There are judicial decisions both ways. For example in Luc Thiet Thuan v. The Queen [1997] A.C. 131 the majority in the Privy Council and in Reg. v. Morhall [1996] A.C. 90 the House of Lords underlined the need for an objective test in looking at the reasonable man. He must not be transformed into a replica of the individual defendant. In these two cases, it was however, accepted that personal characteristics could be taken into account when assessing the gravity of the provocation. On the other hand in Reg. v. McGregor [1962] N.Z.L.R. 1069 and in a number of judgments of the Court of Appeal here it has been recognised, as it was by Lord Steyn dissenting in Luc Thiet Thuan, that in considering whether a reasonable man would have reacted as the accused did, some personal characteristics can be taken into account: (See in the Court of Appeal Reg. v. Newell (1980) 71 C.A.R 331 (Lord Lane C.J.) Reg. v. Raven [1982] C.L.R. 51, Reg. v. Ahluwalia [1992] 4 All E.R. 889, (Lord Taylor of Gosforth C.J.) Reg. v. Dryden [1995] 4 All E.R. 987, Reg. v. Humphreys [1995] 4 All E.R. 1008, Reg. v. Thornton (No. 2) [1996] 2 All E.R. 1023.(See also Reg. v. Campbell [1997] 1 Cr. App. R. 199, the comments of Lord Bingham C.J.).

14

I cite by way of example only Reg. v. Dryden [1995] 4 All E.R. 987, 997, where Lord Taylor of Gosforth C.J. said that the decision in Reg. v. Camplin [1978] A.C. 705 was

"clearly indicating that apart from the standard of self control which is to be attributable to the reasonable man, other characteristics of the appellant should be taken into account in considering whether a reasonable man may have reacted in the way that the appellant did."

15

In Reg. v. Ahluwalia [1992] 4 All E.R. 889, 898, Lord Taylor said:

"English cases concerned with the 'reasonable man' element of provocation, and examples given by judges, have tended to focus on physical characteristics. Thus age, sex, colour, race and any physical abnormality have been considered."

16

However, the endorsement of the New Zealand authority in Reg. v. Newell (1980) 71 Cr. App. R. 331, shows that characteristics relating to the mental state or personality of an individual can also be taken into account by the jury, providing that they have the necessary degree of permanence.

17

In Reg. v. Campbell [1997] 1 Cr. App. R. 199, 207, Lord Bingham of Cornhill C.J. said that the court was conscious

18

"that the body of Court of Appeal authority which is in doubt represents a judicial response, born of everyday experience in criminal trials up and down the country, to what fairness seems to require. If the concept of the reasonable man expressed in section 3 were accepted without any qualification, successful pleas of provocation would be rare indeed, since it is not altogether easy to imagine...

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