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Cases - murder - defences - provocation

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Acott, R v (1996) HL

Ahluwalia, R v (1993) CA

Bedder, R v (1954) HL

Betambeau, R v (2001)

Brown, R v (1972) CA

Burke, R v (1987) CA

Camplin, DPP v (1978) HL

Clarke, R v (1991) CA

Doughty, R v (1986) CA

Duffy, R v [1949] CA

Egan, R v (1992) CA

Hobson, R v (1997) CA

Holley, Jersey v [2005] PC

Humphreys, R v [1995] CA

Ibrams and Gregory, R v (1981) CA

Johnson, R v (1989) CA

Lesbini, R v [1914] CA

Luc Thiet Thuan v R [1996] PC

Miah, R v [2003] CA

Mohammed, R v [2005] CA

Morhall, R v (1995) HL

Newell, R v (1980) CA

Richens, R v (1993) CA

Roberts, R v [1990] CA

Rowland, R v [2003] CA

Smith, R v (Morgan James) (2000) HL

Thornton, R v (1992) CA

van Dongen and another, R v [2005] CA

Weller, R v  [2003] CA

Acott, R v (1996) HL

[Provocation – not temper]

D denied murdering his mother, he claimed she had an accident. Mother treated him like a child; he was 48, and was financially dependant on her.  

Held:  Provocation was that which provoked, not being in a temper.

 

In determining provocation, the jury must take into account everything, both done and said, according to the effect, which, in their opinion, it would have on the reasonable man.

 

Provocation is not, in the passive sense, being in a state of temper as a result of provocation.

 

Guilty 

Ahluwalia, R v (1993) CA

 

Red Triangle indicates "Must know" material

[Provocation - such gravity as to make a reasonable man commit homicide - sudden and temporary loss of self-control subjectively determined]

D, subjected to 10 years of spousal violence and degradation, threw petrol in her husband's bedroom and set it alight, causing his death.

 

Held:

Lord Taylor CJ:

  1. Only Parliament, not the courts, could permit a provocation defence in circumstances of 'a "slow-burn" reaction [to long-term spousal violence] rather than by an immediate loss of control'.

  2. '[T]he subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at the time of the killing a 'sudden and temporary loss of self-control' caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation.'

  3. No evidence was adduced at trial that D suffered from a post-traumatic stress disorder or 'Battered Woman Syndrome', so as to effect the characteristics relevant to the reasonableness of D's actions under the second part of the provocation test.

Note

The Court of Appeal admitted evidence at the appeal level, quashing the murder condition on the basis of D's depressive condition. At re-trial her plea of manslaughter by defence of diminished responsibility was accepted.

 

Not guilty of murder; retrial ordered

Bedder, R v (1954) HL

[Provocation of such gravity as to make a reasonable man commit homicide]

D attempted sexual intercourse with a prostitute, but failed due to his impotence. She taunted D, punched and slapped D, and kicked D in the groin, whereupon D stabbed her twice, causing her death.

 

Held: The jury should consider the effects of the taunts and violence upon D without regard to his sexual impotence.

 

Lord Simonds LC:

'It would be plainly illogical not to recognise an unusually excitable or pugnacious temperament in the accused as a matter to be taken into account but yet to recognise for that purpose some unusual physical characteristic, be it impotence or another.'

D was guilty of murder.

This latter proposition was overruled by the House of Lords in DPP v Camplin, as modified by the Homicide Act 1957

Betambeau, R v (2001)

[Provocation - sentence of probation]

D stabbed and strangled his wife Stella to death when he lost control after she nagged him over the way he cut a joint of beef.

 

Held: by a judge at the Crown Court

"I accept that your wife was a difficult woman to live with and offered you a fair degree of provocation".

D, 62, has spent 20 months in prison since the incident, the judge ruled that he was of no threat to the public and sentenced him to two years probation.

Brown, R v (1972) CA

 

Red Triangle indicates "Must know" material

[Provocation of such gravity as to make a reasonable man commit homicide]

D accused his wife of adultery, resulting in a violent struggle between the two. D claimed he blacked out shortly before cutting her throat with a razor and causing her death.

 

Held: The manner of retaliation to the provocation is relevant to determining the reasonableness of D's actions.  

Talbot J:

'a jury should be instructed to consider the relationship of the accused's acts to the provocation when asking themselves the question "Was it enough to make a reasonable man do as he did?"‘

Guilty of murder.

Burke, R v (1987)

[Provocation –jury finding] 

D, a religious girl, had an argument on a dance floor with a pest who annoyed her on the stairs.  She leaves to find a knife, returns and stabs victim.  

 

Held: No provocation, jury's finding not disturbed.

 

Guilty  

Camplin, DPP v  (1978) HL

 

Red Triangle indicates "Must know" material

[Provocation of such gravity as to make a reasonable man commit homicide]

D, aged 15, submitted to anal intercourse by V aged 50, after which V 'laughed at' D. D thereupon killed V by splitting his skull with a heavy pan.

 

Held:  Lord Diplock: the Homicide Act 1957 s 3 retains a dual test:  

'the provocation must not only have caused the accused to lose his self-control but also be such as might cause a reasonable man to react to it as the accused did ... the reasonable man ... 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 [the jury] think would affect the gravity of the provocation to him.'

Guilty of manslaughter, not murder.

Clarke, R v (1991) CA

[Provocation of such gravity as to make a reasonable man commit homicide]

D was told by his girlfriend, that she was having an abortion. D lost self-control, hitting and then strangling V, the act perhaps killing her. D then panicked and electrocuted V with live wires from a lamp.

 

Held: Provided that the conduct causing death was part of one continuing assault, the jury should look at everything the accused had done in considering whether a reasonable man would have acted the same way. However, some factors (e.g. disposing of the body) may be too remote for consideration.

 

Guilty of murder.

Doughty, R v (1986) CA

[Provocation of such gravity as to make a reasonable man commit homicide]

D killed his 17-day-old son, raising the defence that the baby's persistent crying and recklessness constituted provocation.

 

Held:  The trial judge erred in refusing to leave the defence of provocation to the jury.  

 

The Homicide Act 1957 requires the trial judge to leave to the jury the issue of the objective test, i.e. the second part of the test set out in s 3 of the Act.

 

Guilty of manslaughter, not murder.

Duffy, R v [1949] CA

 

Red Triangle indicates "Must know" material

[Provocation – the classic definition of Devlin J upheld]

D killed her husband after mistreatment.  She tried to remove their child from the home and when her husband was asleep killed him with a hatchet and a hammer.

 

Held: At trial Devlin J used the following words which the CofA thought it might well stand as a classic direction given to a jury:

"Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind.”

Guilty

Egan, R v (1992) CA

 

[Provocation - must make a reasonable man commit homicide]

D, said to be mentally unstable, was intoxicated when he forcibly entered the bungalow of a 78-year-old widow, severely assaulting and killing her.

 

Held: Following Gittens (1984), a jury should be directed to disregard the effects of alcohol or drugs and determine if the combined effect of any abnormalities of mind was substantially to impair D's responsibility.

 

Guilty of murder.

Hobson, R v (1997) CA

[Provocation – battered wife syndrome recognised – available as DR]

D stabbed her abusive partner to death in 1992.

 

Held: battered wife syndrome was a mental disease and could cause abnormality of mind.

Battered women’s syndrome was not included in the standard British classification of mental diseases until 1994

 

The Court of Appeal accepted that that battered wife syndrome was a mental disease and could cause abnormality of mind.

Retrial ordered.

Holley, Jersey v [2005] PC

 

Red triangle indicating important material

[Provocation – objective test limited to reasonable man test including age and sex of D. Statutory interpretation – literal approach adopted]
D killed his girlfriend with an axe. He was an alcoholic (as was she). She told him she had just had sex with another man. He picked up the axe, intending to leave the flat and chop wood, when the deceased said, "You haven't got the guts" he hit her with the axe seven or 8 times.
He pleaded provocation.

Held: D’s alcoholism should not have been taken into account.
 

Subjective element:
The jury are required to assess the gravity of the provocation by reference to the defendant's individual characteristics in deciding if he lost self-control.
 

Objective element:
The jury are required to apply a uniform, objective standard of the degree of self-control to be expected of an ordinary person of the defendant's sex and age when judging whether his loss of self-control was sufficient to satisfy the defence.

Not guilty of murder for other reasons

Comment: Morgan Smith cannot now be considered correct on this point.
Whilst the advice of the Privy Council is said to be only persuasive this was a judgment of nine Law Lords sitting as the Privy Council. It is extremely rare that so many judges sit unless the case is of massive importance. This ruling can be seen as binding, until the HoL (or Parliament) decides otherwise.

Humphreys, R v [1995] CA

[Provocation – battered wife syndrome]

D a 17yr old prostitute killed her abusing partner.  The provocative taunt in this case was aimed at D’s attention seeking behaviour.

This case again highlighted the predicament of battered women who kill.  

 

Held:

1. The judge ought to have provided guidance to the jury of the effect of an accumulation of provocative acts.

This related to the subjective test.

2. D's abnormal immaturity and attention seeking behaviour were characteristics of such permanence that the jury were entitled to take them into account in determining whether a reasonable woman in this situation would have lost control and acted as D did.

This related to the objective test.

 

Guilty of manslaughter not murder.

Ibrams and Gregory, R v (1981) CA

 

[Sudden and temporary loss of self-control – subjectively determined]

DD had been repeatedly bullied and otherwise provoked by V within a week before they attacked V in his sleep, to avoid further bullying. V died as a result of the attack that was intended to break V's arms and legs.

 

Held:  

Lawton LJ:  

'Nothing happened on the night of the killing, which caused [I] to lose his self-control. There having been a plan to kill [V], his evidence that when he saw him all the past came to his mind does not ... provide any evidence of loss of self-control ... Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is the essence of provocation [Duffy (1949) CA].'

Guilty of murder.

Johnson, R v (1989) CA

[Provocation of such gravity as to make a reasonable man commit homicide]

D and V were drinking at a nightclub. V’s girlfriend taunted D, who proceeded to threaten both her and V himself. When D attempted to leave the club, V poured beer over D and pinned D against the wall, whereupon V’s girlfriend attacked D. D stabbed V with a flick knife, causing his death.

 

Held: The presence of prior fault does not ipso facto vitiate provocation.  

Watkins LJ:  

'whether or not there were elements in [D's] conduct which justified the conclusion that he had started the trouble and induced others, including [V], to react in the way they did ... the defence of provocation should have been left to the jury.'

Guilty of manslaughter, not murder.

Lesbini, R v  [1914] CA

[Provocation of such gravity as to make a reasonable man commit homicide - D sane, but hot-tempered and sensitive]

D shot Alice Storey with a revolver after she had made what he thought was a racist comment.  He chased her before shooting her with a pistol from a shooting gallery where she was an attendant.

 

Held: A reasonable man would not have responded so strongly to comparatively little provocation.

Lord Reading CJ: "The Court of Criminal Appeal is not minded in any degree to weaken the state of the law which makes a man who is not insane responsible for the ordinary consequences of his action"

Guilty of murder

Luc Thiet Thuan v R [1996] PC

 

Red triangle indicating important material

[Provocation - objective test - provocative act can be last in a series - provocation need not be directed at a particular characteristic]

D robbed a former girlfriend who was then stabbed her to death to prevent the assailant being identified.  D claimed she taunted him about his sexual inadequacy.  D was found to have brain damage following a fall and had several times responded irritably in response to only minor provocation.

 

Held: The test of provocation was an objective test, namely whether the provocation was enough to make a reasonable man do as the defendant did, and individual peculiarities of the defendant affecting his power of self-control should not, as such, be taken into account for the purposes of that test.

 

It is not necessary for the provocation to be directed at the particular characteristic of the accused, though it usually will.

 

A relatively unprovocative act but one that was the last of a series of acts is sufficient.

 

R v Newell (1980), R v Ahluwalia [1992], R v Dryden [1995] and R v Humphreys [1995] doubted.

 

Guilty of manslaughter

Miah, R v [2003] CA

 

Whole case here

^[Provocation - the two tests to be applied]

D stabbed another youth to death during an incident involving two groups of students on the first day of term outside Southgate College in 1999. There was punching and kicking also CS gas and a knife used. One group was Somalian the other Indian.
The judge's summing up took six days to deliver.

 

Held: It is clear from the speech of Lord Hoffmann in Smith (Morgan) [2001] that it is for the jury to decide, on all the facts, whether
1) the defendant lost his self–control and
2) whether that was, objectively, justified.
 

First:
Was D provoked by things either said or done to lose his self–control, bearing in mind all the characteristics of the defendant that might be relevant including not only age and sex, but also any other aspects of the physical or mental make – up of the defendant, whether permanent or temporary.
 

Second:
Would the provoking words or conduct (as found by the jury) have made, "a reasonable man" act as the defendant did?
Objectively speaking, was the reaction of the defendant to the provoking words or conduct, (as found by the jury), justified? 

 

Applying the standards of behaviour and of self-control that they, as citizens, would expect of people in society today. They are entitled to consider, any physical and mental characteristics of the defendant, whether temporary or permanent, which affect the degree of control that society could reasonably expect of the defendant (i.e.. a person having those characteristics) and which the jury decides it would be unjust not to take into account.
 

In the case of Miah there were three characteristics that were, possibly, relevant. They were that he was young; a man and that he was short (only 5 feet or 5 feet 2 inches).

 

Guilty murder

Comment: The age of D is not stated in the case report.

Mohammed, R v [2005] CA

 

Whole case here

 

Faqir Mohammed

[Provocation – objective, reasonable man test adopted - Holley followed - precedent, PC case favoured over HofL]

D a devout Muslim killed his daughter (24) whom he had discovered in her bedroom with her boyfriend. He locked the bedroom door, fetched a knife from his bedroom, and stabbed the deceased to death; the boyfriend jumped out of a window.

Held: Evidence of previous violence had shown that he was not a peaceable and non-violent man, whose loss of self-control had been completely out of character.

The trial judge had applied the law as it then was but applying the approach since Holley, the defendant’s temperament would have been relevant to the first or subjective element of provocation. However, it would not have been relevant to how the "reasonable man" of the age and sex of the defendant, exercising ordinary powers of self-control, would have reacted.

Accordingly, the direction to the jury had involved a more favourable interpretation of the second limb than would have been applied under the strict test.

Guilty
Comment: The Court of Appeal followed Attorney General for Jersey v Holley [2005] PC, which has added some certainty as to which precedent would be favoured (Holley or Smith). In R v Campbell in 1997 when faced with a similar choice of precedents the CofA did not follow the PC.

 

In the press this case was inappropriately described as an “honour killing”, it was in fact plain murder by a violent father.

 

Morhall, R v (1995) HL

 

Red Triangle indicates "Must know" material

[Provocation of such gravity as to make a reasonable man commit homicide]

D, after a lengthy period of glue sniffing, stabbed his friend seven times in the course of a fight, causing his death.

 

Held: The reasonable man test in s 3 Homicide Act 1957 referred to a hypothetical person having the power of self-control to be expected of an ordinary person of the age and sex of D and showing any other of D's characteristics as the jury think relevant to the gravity of provocation.

 

The jury could be directed to take into account the entire factual situation and the fact that D's characteristics may be discreditable did not exclude it from consideration. D's glue sniffing was therefore taken into account as a characteristic of a reasonable man.

 

D was not guilty of murder.

Newell, R v (1980) CA

[Voluntary manslaughter - provocation of such gravity as to make a reasonable man commit homicide]

D, a chronic alcoholic, battered his friend V to death after V made insulting remarks about D's former cohabited

 

Held: In assessing the reasonableness of D's actions, by reference to D's characteristics as in DPP v Camplin, the jury may consider immutable characteristics of the accused going to the gravity of the provocation (e.g. race), but not characteristics going to the level of self-control, such as alcoholism, grief, mental deficiency or weak-mindedness.  

'In short, there must be some direct connection between the provocative words or conduct and the characteristic sought to be invoked as warranting some departure from the ordinary man test' (North J in McGregor (1962)).

D was guilty of murder.

Richens, R v (1993) CA

[Provocation - requires complete loss of control, but does not require that he did not know what he was doing - subsequent lies are probative of guilt]

D, a 17 year old student at Dover college killed a fellow student whom he thought had raped his girlfriend two weeks earlier.  He and the girlfriend buried the body.

 

Held: The provocative conduct of the victim must lead to a sudden and temporary loss of self-control which resulted in the defendant being unable to restrain himself from doing what he did, but not so far as not knowing what he was doing.

 

Where D told lies, or his conduct was evasive or discreditable they could treat the lies as tending to prove guilt, provided there was not some possible explanation for the lies.

 

Guilty of manslaughter
Followed in R v Goodway [1993] CA

Roberts, R v [1990] CA

[Provocation – taunts about deafness not of itself sufficient]

D was deaf and had frequently been taunted by his father about it.  D killed a local eccentric because of taunts.  

 

A psychiatrist’s report that stated that irrational violence was to be expected from some immature prelingually deaf persons when emotionally disturbed was not put to the jury.  Even if it had it would have made no difference.

 

Held: It was accepted that provocation depended on the characteristics of a reasonable man sharing the characteristics of the accused – S3 Homicide Act 1957; DPP v Camplin (1978); Newell (1980); McGregor [1962] - however the jury were aware of R's disabilities and characteristics which were highlighted during the judge's summing-up the medical evidence would not have added any enlightenment to what they already knew.

 

Guilty of murder

Rowland, R v [2003] CA

[Provocation - the second element is a matter for the jury]

D killed his wife with a carving knife following provocation.  He was depressed about their marital failure and her taunting him.

 

Held:  A "characteristic" of the accused for the second element in provocation is all a matter for the jury.

 

Referring to the second element as objective is not helpful.

 

"The reasonable man is  ... best left lurking in the statutory undergrowth, lest his emergence should lead the jury down a false trail of reasoning en route to their verdict."

 

The reasonable man would not normally be expected to be endowed with the characteristics of the defendant.

 

The reasonable man test is diminished once it is clear that the application of the objective test is to be regarded exclusively as a matter for the jury.

 

The Judicial Studies Board specimen direction is an appropriate one ... self-induced intoxication is no excuse.

 

Guilty of manslaughter not murder

Smith, R v (Morgan James) (2000) HL

 

 

[Provocation – sympathetic approach by the court – fear now a defence for women]

D and V were alcoholics and friends. During an argument where the defendant accused V of stealing his tools, the defendant picked up a knife and stabbed him to death.

 

D argued that he did not intend to kill or cause grievous bodily harm; that he was suffering from diminished responsibility; and that he was acting under provocation.

 

Held: Section 3 of the Homicide Act 1957 does not require the jury to exclude certain factors personal to D when considering whether the provocation was such that it would have made a reasonable man act in the way the defendant had acted.

 

In relation to the question of whether the defendant's behaviour had measured up to the standard of self-control which ought reasonably to have been expected of him was a matter for them to decide this would include the effect of the defendant's depression upon his powers of self control.

 

Certain characteristics of the defendant, beyond simply their age and sex, could be taken into account when applying the objective test.

 

So, the courts should recognise that women's self-control may be affected by abuse.

 

Guilty manslaughter not murder, 7 years.

Ratio refined in R v Rowland (2003)

Overruled in Jersey v Holley [2005]

Thornton, R v (1992) CA

 

Red Triangle indicates "Must know" material

[Sudden and temporary loss of self-control subjectively determined]

D was battered by her husband throughout their first year of marriage. One night her husband was intoxicated and called D a whore; D then obtained a carving knife for protection. The husband threatened to kill D in her sleep and sarcastically taunted D to kill him first. D stabbed him once in the stomach, causing his death. D initially told the police that she wanted to kill him.

 

Held: To establish provocation, there must be a 'sudden and temporary loss of self-control' (Duffy (1949) CA).

 

In cases involving a history of domestic violence, 'the question for the jury is whether at the moment the fatal blow was struck the accused had been deprived for that moment of the self-control which previously he or she had been able to exercise'.

 

Guilty of murder.

van Dongen and another, R v  [2005] CA

 

Whole case here

[Murder – provocation – need not be left to the jury in all cases for example if real issue was self-defence – justice for the victim and proportionate appellate system]
DD (brothers) attacked V, intending to kill him or to cause really serious bodily injury after he allegedly attacked them with a street sign. The trial judge refused to address the jury on provocation on the basis that provocation was a speculative possibility, if it were necessary in the instant case it would be necessary in every case in which the real issue was self-defence.

Held: Refusing to disturb the jury’s decision, no injustice had been done even though a provocation direction should have been given to the jury.

“Justice in a criminal trial rightly and necessarily concentrated on justice for the defendant. However, the court was not to overlook the matter of justice for those concerned with the victim also, nor the requirements of a proportionate criminal appellate system, which included that those who were surely and fairly shown to be guilty of murder, and had been so found by a jury, should not escape that consequence on gossamer grounds.”

Guilty
Comment
: Gossamer = Light, delicate, flimsy as in cobwebs.

Weller, R v  [2003] CA

 

 

Whole case, here

[Provocation - jealousy not normally sufficient to found provocation, but it is up to the jury]
D aged 34 strangled his lover aged 18. She wished to end the relationship, he was unduly possessive and jealous and there were heated arguments over her conduct with other men. His characteristic was that he was unduly jealous.

 

Held: It appears that this was because he was unduly possessive and jealous as to which there was considerable evidence. Characteristics such as jealousy remain with the jury as matters which fall for consideration in connection with the second, objective element of provocation. it is clear that such matters may form part of their deliberations.

 

Guilty of murder

Comment: this case appears to fall in line with R v Vinagre (1979) CA which was about diminished responsibility caused by irrational jealousy.


 

 

 

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