Recent Judicial Decisions
| Published date | 01 April 1959 |
| DOI | 10.1177/0032258X5903200204 |
| Date | 01 April 1959 |
| Subject Matter | Article |
Recent
Judicial
Decisions
WHEN
PROVOCATION
IS NO
DEFENCE
R, v. Cunningham
PROVOCATION as a suggested defence is familiar in the criminal
courts mostly on charges of murder.
If
successful it will reduce the
offence from murder to manslaughter. In cases other than homicide
the scope of this defence, if it be a defence at all, has been un-
certain. The Court of Criminal Appeal has now ruled in the case
of R. v. Cunningham (1959, 2 W.L.R. 63) that the defence of
provocation is not open to
the
accused on a charge of malicious
wounding. In so ruling the Court followed
the
opinion given by
Lord Simon in the leading case on provocation in murder cases,
Holmes v. Director of Public Prosecutions (1946 A.C. 588):
"In
the case of lesser crimes" provocation does not alter the nature of
the offence at all:
but
it is allowed for in the sentence."
The
appellant in R. v. Cunningham had made a most savage
attack on another man, hitting him about the face with the result
that he had a wound in the ear, abrasions. on the hand and wrist
and an injury to the left eye.
The
defence
put
up at the trial for
malicious wounding was that the injured man had made a sugges-
tion that he. the appellant, should go with him and commit some
homosexual offence. Counsel for the defence cross-examined the
injured man as to this suggestion, which he strongly denied. In
view of this attack on his character the prosecution cross-examined
the accused as to his character, in accordance with the rule of
evidence which allows this to be done if the accused has attacked
the character of a witness. The result of this cross-examination was
that four previous convictions for violence were brought
out
and
were before the jury.
The
jury convicted and he was sentenced to
five years' imprisonment.
The
appeal was on the ground that leave to cross-examine the
appellant as to his previous convictions ought never to have been
allowed.
The
Court rejected this contention and the appeal was
dismissed. The Court was "clearly of opinion
that
in a case such as
malicious wounding there is no such thing as a defence of
provocation."
The
Court also observed that even if provocation
could have been a defence, there is no suggestion that words alone,
96 The Police Journal
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