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|Judgments - Regina v. Smith (On Appeal From The Court of Appeal (Criminal Division))
HOUSE OF LORDS
Lord Slynn of Hadley Lord Hoffmann Lord Clyde Lord Millett Lord Hobhouse of Wood-borough
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))
ON 27 JULY 2000
LORD SLYNN OF HADLEY
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.
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
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.
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.
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.
Having referred to the many previous decisions on this issue, the Court of Appeal said
The court gave leave to appeal and certified the following question.
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  A.C. 705, in Luc Thiet Thuan v. The Queen.  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.
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.
The objective test of the reasonable man reached its high water-mark in your Lordships House in Bedder v. D.P.P.  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.
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 controlsometimes described as the gravity of the provocation and said to be a subjective testit 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.
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.
There are judicial decisions both ways. For example in Luc Thiet Thuan v. The Queen  A.C. 131 the majority in the Privy Council and in Reg. v. Morhall  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  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  C.L.R. 51, Reg. v. Ahluwalia  4 All E.R. 889, (Lord Taylor of Gosforth C.J.) Reg. v. Dryden  4 All E.R. 987, Reg. v. Humphreys  4 All E.R. 1008, Reg. v. Thornton (No. 2)  2 All E.R. 1023. (See also Reg. v. Campbell  1 Cr.App.R. 199, the comments of Lord Bingham C.J.).
I cite by way of example only Reg. v.Dryden  4 All E.R. 987, 997, where Lord Taylor of Gosforth C.J. said that the decision in Reg. v. Camplin  A.C. 705 was
In Reg. v. Ahluwalia  4 All E.R. 889, 898, Lord Taylor said:
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.
In Reg. v. Campbell  1 Cr.App.R. 199, 207, Lord Bingham of Cornhill C.J. said that the court was conscious
Much of the debate before your Lordships has centred on the precise effect of the decision of the House in Camplin  A.C. 705. Lord Diplock made it clear, at p. 716B, that the section was intended to mitigate in some degree "the harshness of the common law of provocation as it had been developed in recent decisions in this House." He said, at p. 717 that a reasonable man
Taking these passages into account it does not seem to me that Lord Diplock is saying that the question as to the reaction to provocation is wholly objective: on the contrary, he appears to me to be indicating that personal characteristics may be something the jury could take into account. He is certainly not limiting the characteristic which can be taken into account to age (or sex)"That he was only 15 years of age at the time of the killing is the relevant characteristic of the accused in the instant case." (emphasis added)
Lord Fraser of Tullybelton and Lord Scarman agreed with Lord Diplock. Lord Morris of Borth-y-Gest at p. 721C said:
Lord Simon of Glaisdale said at p. 725D:
Obviously if the only possible interpretation of section 3 were that the "reactions of the reasonable man" test was wholly objective one would be bound to accept it whatever the consequences in particular cases. I am, however, satisfied that it is not the only possible construction of section 3, itself "intended to mitigate in some degree the harshness of the common law of provocation as it had been developed by recent decisions in this House" Camplin  A.C. 705, p. 716B per Lord Diplock.
It important to bear in mind that the Section left the decision to the jury and took away the judge's power to direct the jury as to what characteristics of the accused could as a matter of law be taken into account and to withdraw the question from the jury on the basis of the judge's personal view. Judges must avoid imposing "a fetter on the right and duty of the jury which the Act accords to them to act upon their own opinion on the matter" Camplin p. 718G per Lord Diplock.
Section 3 in terms requires the jury to decide whether the provocation "was enough to make a reasonable man do as he did" and in determining that question the jury should take into account everything both done and said according to the effect which in their opinion, it would have on a "reasonable man." As all members of the House agreed in Camplin the jury are to be told that the reasonable man
In Camplin it was asked in effect what could reasonably be expected of a 15 year old boy. In my view the section requires that the jury should ask what could reasonably be expected of a person with the accused's characteristics. This does not mean that the objective standard of what "everyone is entitled to expect that his fellow citizens will exercise in society as it is today" is eliminated. It does enable the jury to decide whether in all the circumstances people with his characteristics would reasonably be expected to exercise more self-control than he did or put another way that he did exercise the standard of self-control which such persons would have exercised. It is thus not enough for the accused to say "I am a depressive, therefore I cannot be expected to exercise control." The jury must ask whether he has exercised the degree of self-control to be expected of someone in his situation.
It thus seems to me that the particular characteristics of the accused may be taken into account at both stages of the inquiry. I do not accept that the section intends the rigid distinction between the two parts of the inquiry for which the prosecution contends. As Lord Diplock said in Camplin at p. 718A in respect even of the characteristic of age
In this way the jury can legitimately "give weight to factors personal to the prisoner in considering a plea of provocation," a course they took in any event even when the stricter test was considered to apply. (Royal Commission on Capital Punishment Report (1953) (Cmd. 8932) para. 145).
I do not consider that the existence of section 2 defining the partial defence of diminished responsibility prevents this conclusion. The two defences are in any event different in important respects, not least that whereas provocation depends on a consideration of facts external to the accused, such as the acts of the deceased, the defence of diminished responsibility does not.
I accept that there may be difficult borderline cases as to which particular characteristics can be taken into account but the same is also true in applying the first part of the test. The second part of the test applied in the way I accept it should be applied has not caused insoluble difficulties in the Court of Appeal cases to which I have referred. Moreover the distinction being the "objective" and the "subjective" tests contended for by the prosecution is very difficult for a jury and I doubt whether it is really workable.
In my opinion justice requires that personal characteristics should be taken into account in the way I have indicated unless the section precludes it. In my view it does not. Accordingly I agree with the opinion of Lord Steyn in Luc Thiet Thuan v. The Queen [1997[ A.C. 131. In my opinion the Court of Appeal in the various cases to which I have referred were right to take the view that personal characteristics other than age and sex could be taken into account when considering whether the reaction to the provocation was that of a reasonable man. It follows that I also agree with the judgment of Potts J. on this point in the present case. I would accordingly dismiss the appeal.
1. The facts.
On a November evening in 1996 Morgan Smith received a visit from his old friend James McCullagh. They were both alcoholics and spent the evening in drinking and recrimination. Smith had grievances against McCullagh, some of which went back many years. The most recent was his belief that McCullagh had stolen the tools of his trade as a carpenter and sold them to buy drink. McCullagh's repeated denials only inflamed Smith further. A friend arrived to find the row in full swing. While the friend was using the lavatory, Smith took up a kitchen knife and stabbed McCullagh several times. One of the blows was fatal.
Smith was indicted on a charge of murder before Judge Coombe and a jury. His defences were, first, that he did not intend to kill or cause grievous bodily harm; secondly, that he was suffering from diminished responsibility and thirdly that he was acting under provocation. The jury rejected all three defences and convicted Smith of murder. It is accepted that no criticism can be made of the judge's summing-up on the first two defences. The question is whether he gave the jury the correct directions on the law of provocation.
2. The defence of provocation.
As a result of the decision of the House of Lords in Mancini v. Director of Public Prosecutions  A.C.1 the common law of provocation was tolerably well settled. First, the provocation had to be such as to temporarily deprive the person provoked of the power of self-control, as a result of which he committed the unlawful act which caused death. Secondly, the provocation had to be such as would have made a reasonable man act in the same way. These two requirements are commonly called the subjective and objective elements of the defence respectively. In Reg. v. Duffy  1 All E.R. 932 the gist of the defence was encapsulated by Devlin J. in a single sentence in his summing-up, which was afterwards treated as a classic direction to the jury:
Two decisions of the House of Lords subsequent to Mancini added glosses to these principles. First, in Holmes v. Director of Public Prosecutions  A.C. 588 it was decided that mere words could not constitute provocation, whatever their effect upon the reasonable man might have been. Secondly, in Bedder v. Director of Public Prosecutions  1 W.L.R. 1119 it was decided that the "reasonable man" is a wholly impersonal fiction to which no special characteristic of the accused should be attributed. The alleged provocation was that the victim, a prostitute, had taunted the accused for his impotence. The accused was in fact impotent but the House held that the jury had properly been directed to consider whether a reasonable man who was not impotent would have reacted in the same way.
On the recommendation of the Royal Commission on Capital Punishment (1949-1953) (Cmd. 8932), paras. 151-152, the common law was amended by section 3 of the Homicide Act 1957:
This section plainly changed the law in two ways. First, it provided that if there was evidence that the accused was provoked to lose his self-control (the subjective element) then the question of whether the objective element was satisfied had to be left to the jury. The judge was not entitled, as he could at common law, to withdraw the issue from the jury if he thought there was no evidence upon which a jury could reasonably consider that the objective element might have been satisfied. Secondly, the jury could for this purpose take into account "everything both said and done." This removed any legal restriction on the kind of acts that could amount to provocation, such as the rule in Holmes  A.C. 588 that words alone were insufficient.
The question which came before the House in Reg. v. Camplin  A.C. 705 was whether by implication the section had also changed a third common law doctrine. This was the rule in Bedder  1 W.L.R. 1119 which required the "reasonable person" to be devoid of any particular characteristics. The accused was a youth of 15 who claimed that he had been provoked to kill an older man by sexual abuse and taunting. The judge had directed the jury that they should consider what effect the provocation would have had upon a reasonable person of full age. The House decided that since provocation by words was frequently directed at some characteristic of the accused, such as his past behaviour, disabilities or race, the change in the law which allowed such taunts or insults to constitute provocation would be ineffectual if the accused had to be assumed to lack such a characteristic. It was therefore decided that, at least for the purpose of considering the gravity of the provocation, the reasonable man should normally be assumed to share the relevant characteristics of the accused. Whether the decision went further and allowed the jury to take into account characteristics of the accused which affected his powers of self-control is the chief question in this appeal and, in order to answer it, I shall have to analyse the case later in more detail. It can however be said that Camplin  A.C. 705 allowed at least one such characteristic to be taken into account, namely, the youth of the accused. The actual decision was that the jury should have been told to consider what the effect of the provocation would have been upon a person with the powers of self-control of a reasonable boy of 15 and not those of a grown-up.
The extent to which matters affecting the power of self-control should be taken into account divided the Judicial Committee of the Privy Council in Luc Thiet Thuan v. The Queen  A.C. 131. The majority, in an opinion given by Lord Goff of Chieveley, decided that in principle the actual characteristics of the accused were relevant only to the gravity of the provocation. The only characteristics of the accused which could be attributed to the reasonable person for the purpose of expressing a standard of self-control were his or her age and sex. There had been evidence that the accused suffered from brain damage which made it difficult for him to control his impulses in response to minor provocation. But this was held irrelevant to the question of whether the objective element in the defence had been satisfied. The majority said that the English cases after Camplin (to some of which I shall later refer) which had held that the jury should be directed that they could take such matters into account, had been wrongly decided. Lord Steyn, in a minority opinion, said that the later cases were not inconsistent with Camplin, constituted a logical extension of its reasoning and were in accordance with justice and common sense.
3. The trial, summing-up and appeal.
In the present case there was psychiatric evidence on both sides. It dealt mainly with the question of whether Smith was suffering from diminished responsibility but the expert witnesses also considered his susceptibility to react to provocation. A psychiatrist called by the defence, who had seen Smith in prison less than a fortnight after the offence, said that he was suffering from an abnormality of the mind, namely depression, which could reduce his "threshold for erupting with violence." Another said that he was suffering from clinical depression which made him "more disinhibited", i.e. less able to control his reactions.