|Judgment - Regina v. Acott continued|
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The general principles
Before I turn directly to an analysis of the issues on this appeal it is necessary to summarise the principles of law so far as they may affect this appeal. Section 3 of the Homicide Act 1957 reads as follows:
Section 3 moderated the strict requirements of the common law defence of provocation. Section 3 can be divided into three parts: (1) the provoking conduct; (2) causatively relevant loss of self control; and (3) the objective criterion whether the provocation was enough to make a reasonable man do as the defendant did. For the purposes of examining the constituent elements of provocation it is only necessary to consider the classic case of provocation of an accused person by the deceased. First, in respect of the provoking conduct section 3 abolished the common law rule that words alone could not amount to provocation. It did so by using the general words "whether by things done or by things said or by both together." The meaning of these words is plain and by using the shorthand expression "provoking conduct" I do not intend to put a gloss on the words of the statute. Secondly, the question is whether the provoking conduct of the deceased caused the defendant to lose his self control. This is usually called the subjective condition. In the absence of any evidence, emerging from whatever source, suggestive of the reasonable possibility that the defendant might have lost his self control due to the provoking conduct of the deceased, the question of provocation does not arise. Thirdly, the section provides that 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. This part of the section provides for an external or objective standard. This provision is explained by the concluding provision that in determining the objective question the jury shall take into account everything done and said according to the effect which, in their opinion, it would have on a reasonable man. The purpose of this part of the section is well settled. After the adoption of the reasonable man test in the second half of the last century, judges withdrew cases where the defendant wished to rely on provocation on the basis of rules or supposed rules which were judicially developed. By converting common sense criteria into fixed rules of law judges empowered themselves to invoke those rules to withdraw cases from the jury. Thus the rule was laid down that disproportionate retaliation may bar the defence, or, as it was later put, that the retaliation must bear a reasonable relationship to the provocation received: Mancini v. Director of Public Prosecutions  A.C. 1; Rex v. Duffy (Note)  1 All E.R. 932; see also generally Logan v. The Queen  A.C. 871, 887P. Plainly proportionality was a highly relevant matter to a defence of provocation. But the perceived mischief was that judges withdrew cases from the jury of on the ground of fixed rules of law. In Reg. v. Camplin  A.C. 705 the House of Lords held that section 3 abolished all previous rules linked with the objective requirement as to what can or cannot amount of provocation: see p. 716C, per Lord Diplock. At the same time section 3 abolished the power of the judge to withdraw provocation as an issue on the ground that there was no evidence on which the jury could find that a reasonable man would have been provoked as the defendant was: Reg. v. Camplin supra. Henceforth the objective requirement was to be regarded as an issue of fact, or, more realistically as a matter of opinion, within the sole province of the jury. But importantly, in the context of the present appeal, it remained the duty of the judge to decide whether there was evidence of provoking conduct, which resulted in the defendant losing his self control. If in the opinion of the judge, even on a view most favourable to the accused, there is insufficient material for a jury to find that it is a reasonable possibility that there was specific provoking conduct resulting in a loss of self control, there is simply no issue of provocation to be considered by the jury: Lee Chun-Chuen v. The Queen  A.C. 220, 229, per Lord Devlin.
Standing back from the minutiae of section 3 A.J. Ashworth (now Professor Ashworth) described the core features of the modern law of provocation in terms which are helpful in the context of the present appeal: The Doctrine of Provocation  C.L.J. 292. He said, at pp. 317--318:
This passage emphasises that it is an integral part of the idea of provocation that the deceased aroused the anger of the defendant and made him lose his self-control. It explains how the jury cannot determine either the subjective or the objective condition without some evidence of the nature of the provocation.
The proposition that the Crown made provocation an issue
Counsel for the appellant argued that the Crown made provocation an issue by putting to him in cross-examination that he attacked his mother as a result of a loss of self control caused by momentary anger at the way in which his mother treated him. The appellant throughout denied these suggestions, and he insisted that his relationship with his mother was good and that she had done nothing to anger him. The cross-examination produced no evidence of provoking conduct or of a loss of self control. In deciding what issues must be left to the jury a judge must be guided by the state of the evidence. Suggestions in cross-examination cannot by themselves raise an issue of provocation where the evidence, on the most favourable view for the defendant, reveals no issue. It follows that I would reject this way of putting the appellant's case.
The relevant evidence
The disposal of the appeal therefore depends on the state of the evidence. Like Rougier J. I am willing to infer from the injuries of the deceased that there was reasonable possibility that the appellant lost his self control and attacked his mother in anger. But by itself that is not enough. The question is whether there is any evidence of specific provoking conduct. As the issues became refined during the helpful oral submissions of both counsel, it became clear that counsel for the appellant was submitting in this part of his argument that from the fact of loss of self control and the evidence that the appellant was sometimes treated by his mother as a little boy it is a rational inference that the appellant's loss of self control might have followed upon a specific provoking element albeit perhaps of a trivial and "last straw" variety. Subject to his earlier argument already discussed, counsel for the appellant accepted that if such an inference is not justified, the appeal must fail. In my judgment that concession was rightly made. It is a short point not of law but of logic and common sense. The recorder plainly took the view that the evidence did not justify an inference of a specific provoking event. In my view the evidence was insufficient to support the suggested inference. It was not a reasonable possibility arising on the evidence: it was mere speculation. In these circumstances the appeal must fail on the facts.
The certified question
Strictly, the certified question need not be answered in order to dispose of the appeal. But it seems possible to summarise the legal position in terms which might be helpful. Section 3 is only applicable "if there is evidence . . . that the person charged was provoked (whether by things done or things said or by both together) to lose his self control." A loss of self control caused by fear, panic, sheer bad temper or circumstances (e.g. a slow down of traffic due to snow) would not be enough. There must be some evidence tending to show that the killing might have been an uncontrolled reaction to provoking conduct rather than an act of revenge. Moreover, although there is no longer a rule of proportionality as between provocation and retaliation, the concept of proportionality is nevertheless still an important factual element in the objective enquiry. It necessarily requires of the jury an assessment of the seriousness of the provocation. It follows that there can only be an issue of provocation to be considered by the jury if the judge considers that there is some evidence of a specific act or words of provocation resulting in a loss of self control. It does not matter from what source that evidence emerges or whether it is relied on at trial by the defendant or not. If there is such evidence, the judge must leave the issue to the jury. If there is no such evidence, but merely the speculative possibility that there had been an act of provocation, it is wrong for the judge to direct the jury to consider provocation. In such a case there is simply no triable issue of provocation. I would hold that in such circumstances our law of provocation knows no principle that "the jury must not be deprived of their opportunity to return a perverse verdict": see the commentary by Sir John Smith on Reg. v. Stewart  Crim.L.R. 67 but compare his later commentary on Reg. v. Acott  Crim.L.R. 665.
Counsel for the appellant invited your Lordships to go further and state what would be sufficient evidence of provocation to justify a trial judge in leaving the issue of provocation for the jury to consider. The invitation was attractively put. But it must be rejected. What is sufficient evidence in this particular context is not a question of law. Where the line is to be drawn depends on a judgment involving logic and common sense, the assessment of matters of degree and an intense focus on the circumstances of a particular case. It is unwise to generalise on such matters: it is a subject best left to the good sense of trial judges. For the same reason it is not useful to compare the facts of decided cases on provocation with one another.
For my part the certified question can be answered in the general way in which I have indicated. But the reasoning in this judgment is subject to the overriding principle that the legal burden rests on the Crown to disprove provocation on a charge of murder to the required standard of proof. In Lee Chun-Chuen v. The Queen,  A.C. 220, 229, Lord Devlin summed up the legal position as follows:
That remains the position.
I would dismiss the appeal.
For the reasons given in the speech delivered by my noble and learned friend, Lord Steyn, which I have read in draft and with which I agree, I too would dismiss the appeal.
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