The Doctrine of Precedent and the Provocation Defence: A Comment on R v James

Date01 September 2006
DOIhttp://doi.org/10.1111/j.1468-2230.2006.00611.x
Published date01 September 2006
AuthorJesse Elvin
CASES
The Doctrine of Precedent and the Provocation Defence:
ACommentonRvJames
Jesse Elvin
n
INTRODUCTION
In RvJame s,
1
the Court of Appeal heard two appeals together, each of which
turned on the correct interpretation of the provocation defence. The Court sat
¢ve, rather than three, strong because these appeals raised an important question
regarding the doctrine of precedent. Delivering the judgment of the Court, Lord
Phillips CJ summarised this question as follows: ‘[s]hould this court accept that
the decision of thePrivy Council in Att orney G eneral for Jersey vHolley. . . has e¡ec-
tively overruled the decision of the House of Lords in RvSmith (Morgan)...?
2
Controversially, the Court concluded that the decision of the Privy Council in
Holley,
3
rather than that of the House of Lords in Smith,
4
represented the law of
England on the approach to be taken to the provocation defence. It thereby
declined to follow what it admitted are‘very well established rules of precedent’.
5
This meant that each of the appeals failed.
In declaring that ‘there are circumstances in which a decision of the Judicial
Committee of the Privy Council can take precedence over a decision of the
House of Lords’,
6
the Court delivered a ruling with potentially wide-ranging
implications in relation to the doctrine of precedent, as well as important rami¢-
cations for the provocation defence.This note focuses on these former implica-
tions, not only because they are potentially wider-ranging, but also because,
unlike the other rami¢cations of the decision in James, they raise relatively unex-
ploredissues. However, it also considersthe wisdom of the Holley approach to the
law on provocation. In doing this, it takes account of the Law Commissions
recent reviews of this area of the law.
7
n
Lecturer,Department of Law,City University London.The author would like to thank Nicola Lacey
and Arlie Loughnan for their comments on an earlier draft of this case note.
1 [2006] EWCACr im14,[2006] 1 All ER 759.
2ibid [1].
3AttorneyGeneralforJersey vHolley [2005] 2 AC 580.
4RvSmith(Morgan) [2001] 1 AC 146.
5n1above,[40].
6ibid [42].
7 See Law Commission Consultation Paper No 177, A New Homicide Act for England a ndWales?
(2005),171^176,and Law Commission Report No 290, PartialDefences to Murder(2004), 30^72.
rThe Modern LawReview Limited 2006
Published by BlackwellPublishing, 9600 Garsington Road,Oxford OX4 2DQ,UK and 350 Main Street, Malden, MA 02148, USA
(200 6) 69(5) MLR 819^842

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