Judgments - Regina v. Smith (On Appeal From The Court of Appeal (Criminal Division))

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    The judge gave a direction which, as it happens, was in accordance with the majority opinion in Luc Thiet Thuan, [1997] A.C. 131 although the case does not appear to have cited to him. He told the jury that if they considered that the accused might have been suffering from a depressive illness, they should decide whether a man suffering from such illness, but with a reasonable man's powers of self-control, might have responded to McCullagh's behaviour by stabbing him to death. The fact that the depressive illness may have reduced Smith's own powers of self-control was "neither here nor there" and should not be taken into account.

    In Reg. v. Campbell [1997] 1 Cr. App. R. 199 the Court of Appeal considered the majority opinion in Luc Thiet Thuan v. The Queen [1997] A.C. 131 and held that, unless your Lordships' House decided otherwise, it would continue to follow its earlier decisions and the minority opinion of Lord Steyn. In the Court of Appeal in the present case Potts J. gave a careful judgment explaining why he considered that those decisions were correct. The court therefore allowed the appeal and substituted a verdict of manslaughter. But in view of the state of the authorities it gave leave to appeal and certified the following point of law of general public importance:

    "Are characteristics other than age and sex, attributable to a reasonable man, for the purpose of section 3 of the Homicide Act 1957, relevant not only to the gravity of the provocation to him but also to the standard of self-control to be expected?"

4. The historical background.

    My Lords, it is impossible to read even a selection of the extensive modern literature on provocation without coming to the conclusion that the concept has serious logical and moral flaws. But your Lordships must take the law as it stands. Whatever your decision in this case, the result is not likely to be wholly satisfactory. The doctrine of provocation has always been described as a concession to human frailty and the law illustrates Kant's dictum that, from the crooked timber of humanity, nothing completely straight can be made. Nevertheless, I shall suggest to your Lordships that this appeal offers an opportunity, within the constraints imposed by history and by Parliament, to make some serviceable improvements.

    The researches of Dr. Horder (Provocation and Responsibility, (1992)) show that although the doctrine has much earlier roots, it emerged in recognisably modern form in the late 17th and early 18th centuries. It comes from a world of Restoration gallantry in which gentlemen habitually carried lethal weapons, acted in accordance with a code of honour which required insult to be personally avenged by instant angry retaliation and in which the mandatory penalty for premeditated murder was death. To show anger "in hot blood" for a proper reason by an appropriate response was not merely permissible but the badge of a man of honour. The human frailty to which the defence of provocation made allowance was the possibility that the man of honour might overreact and kill when a lesser retaliation would have been appropriate. Provided that he did not grossly overreact in the extent or manner of his retaliation, the offence would be manslaughter and execution avoided.

    The situations which were considered to be proper occasions for anger reflected the code of honour of the time. The first full judicial discussion dates from the reign of Queen Anne. In Reg. v. Mawgridge (1707) Keil. 119, a guest of the Lieutenant of the Tower of London quarrelled with his host over a woman, threw a bottle of wine at his head and then ran him through with a sword. The case was described by Holt C.J. as being "of great expectation" and was argued before all the judges. The court listed four categories of case which were "by general consent" allowed to be sufficient provocations. The first was the quarrel which escalated from words to physical assault ("by pulling him by the nose, or filliping upon the forehead":) If the assaulted party drew his sword and immediately slew the other, it would be "but manslaughter." The second was a quarrel in which a friend of the person assaulted joined in and gave the deadly blow. The third was where someone took the part of a fellow-citizen who was being "injuriously treated" And the fourth was killing a man in the act of adultery with one's wife ("for jealousy is the rage of man and adultery is the highest invasion of property.")

    The 19th century judges had to adapt this law to a society of Victorian middle-class propriety. They changed it in two ways. First, they generalised the specific situations which the old law had regarded as sufficient provocation into a rule that whatever the alleged provocation, the response had to be "reasonable." In Reg. v. Kirkham (1837) 8 C. & P. 115, 119 Coleridge J. told the jury that "though the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being, and requires that he should exercise a reasonable controul over his passions." The "reasonable man", as a test of the appropriate response, first appeared in Reg. v. Welsh (1869) 11 Cox C.C. 336, 339 in which Keating J. said that provocation would be sufficient if it was "something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act."

    The second change was to shift the emphasis of the law from the question of whether the angry retaliation by the accused, though excessive, was in principle justified, to a consideration of whether the accused had lost his self-control. The Restoration view was that anger was right and proper. A killing "in hot blood" was rational behaviour which, on account of emotional incontinence, had gone too far. But the nineteenth century judges preferred to look upon provocation as something which temporarily deprived the accused of his reason. As they knew virtually nothing about how the mind works or the relationship between emotion and rationality, they described the process in an equestrian metaphor drawn from Descartes. The emotions were depicted as an unruly horse and the reason as its rider who might, upon provocation, lose control. So in Reg. v. Hayward (1833) 6 C. & P. 157, 159 Tindal C.J. said that the question was whether the provocation was so recent and strong that the prisoner was for the moment not "master of his own understanding" or whether "there had been time for the blood to cool and for reason to resume its seat." Modern neurology has cast considerable doubt upon the accuracy of the metaphor (see Antonio Damasio, Descartes' Error (1996)) but the general concept of loss of self-control probably presents little difficulty to juries.

    My Lords, both of these changes are reflected in the common law as it was settled in Mancini [1942] A.C.1 and summarised by Devlin J. in Duffy [1949] 1 All E.R. 932. They have caused problems in the modern law and I shall return to them when I have discussed the way the law was reformed by the Homicide Act 1957.

5. Proposals for reform.

    The Royal Commission on Capital Punishment, (1953) (Cmd. 8932) which reported in September 1953, before Bedder v. Director of Public Prosecutions [1954] 1 W.L.R. 1119 was decided, considered the law of provocation. It noted (at para. 134) that the scope for alleviating the act of killing on the ground of provocation had been steadily limited by appellate courts, particularly by the concept of the impersonal reasonable man, but that "the greater severity of the law has been tempered by leniency in its application."

    "Judges have instructed juries in terms more favourable than the letter of the law would allow. Juries, sometimes with the encouragement of the Judge, sometimes in the face of his direction, have returned verdicts of manslaughter where, as a matter of law, the most favourable interpretation of the evidence could scarcely justify them in doing so."

    This state of affairs was, in the view of the Commission (at para. 144), attributable to the single mandatory sentence for murder, which at that time was death.

    "Provocation is in essence only an extenuating circumstance which in the case of lesser crimes...does not alter the nature of the offence but is allowed for in the sentence. The rule of law that provocation may, within narrow bounds, reduce murder to manslaughter, represents an attempt by the courts to reconcile the preservation of the fixed penalty for murder with a limited concession to natural human weakness, but it suffers from the common defects of a compromise. The jury might fairly be required to apply the test of the 'reasonable man' in assessing provocation if the Judge were afterwards free to exercise his ordinary discretion and to consider whether the peculiar temperament or mentality of the accused justified mitigation of sentence. It is less easy to defend the application of the test in murder cases where the Judge has no such discretion."

    My Lords, the force of this criticism of the rigid impersonality of the "reasonable man" test is only slightly reduced by the fact that the mandatory sentence for murder is now life imprisonment. It does not follow, however, that the abolition of the mandatory sentence would make the defence superfluous. It might still be thought desirable to allow the jury to decide whether provocation was a reason why the killing did not deserve the degree of moral condemnation and severity of sentence associated with the crime of murder: see paras. 80-83 of the Report of the House of Lords Select Committee on Murder and Life Imprisonment (H.L. Paper 78-I Session 1988-89). Why provocation should be the only ground upon which the jury should be allowed to express a moral judgment of this kind is a difficult question which would take me too far from my present purpose.

    The Royal Commission on Capital Punishment concluded (at para. 145) that it had no doubt that if the criterion of the reasonable man was strictly applied "it would be too harsh in its application." But in practice -"the courts not infrequently give weight to factors personal to the prisoner in considering a plea of provocation."

    The Home Secretary also took such matters into account in commuting death sentences. So the Commission made no recommendation for change. But it did recommend (at paras. 151-152) that the rule that words could never constititute provocation should be abolished: "the nature (as distinct from the degree) of provocation should be immaterial." The issue should be left to the jury, which:

    "can be trusted to arrive at a just and reasonable decision and will not hesitate to convict the accused of murder where he has acted on only slight provocation, whether by words or otherwise."

6. The construction of section 3.

    As I have already said, the issue in Camplin [1978] A.C. 705 was whether, in addition to the two express changes in the law made by the statute concerning the provinces of judge and jury and the status of words as provocation, there was by necessary implication a change in the concept of the reasonable man as formulated in Bedder [1954] 1 W.L.R. 1119. I shall in due course analyse the answer which the House gave to that question. But before doing so, I shall consider what seems to me, apart from authority, to have been the effect of the Act.

    My Lords, if one reads the debates touching upon this subject in your Lordships House during the passage of the bill, there can be no doubt that Lord Kilmuir, the Lord Chancellor, was of opinion that the clause made no change in the concept of the reasonable man. That merely shows how unhelpful such debates often are as a guide to construction. Lord Kilmuir had not thought through the consequences of the changes made by the section in the way in which the House had to do in Camplin. If one approaches the question of construction in the orthodox way, namely by considering the language of the section against the background of the common law of provocation, one has to conclude that the concept of the reasonable man as a touchstone of the objective element could not have been intended to stay the same.

    The reasons are to be found in both the other changes expressly made by the section. The first, namely the admission of words as a legitimate source of provocation, I have already mentioned. It was this reason which received the main emphasis in Camplin. But the other change, in the respective roles of judge and jury, was equally important. The Royal Commission, it will be remembered, said (at para. 134) that a change in the law was unnecessary because juries, sometimes in the face of the judge's directions on the law, returned verdicts of manslaughter in cases in which justice appeared to require a concession to human frailty. That is to say, juries arrived at verdicts in favour of the accused which were contrary to law. The traditional way in which judges attempt to deflect the jury from a perverse verdict of this kind is to withdraw the issue. But section 3 was intended to deprive the judge of even this method of control. The jury was to be sovereign and have the power in theory as well as in practice to decide whether the objective element was satisfied.

    I do not think it possible to attribute to Parliament, in making this change, any intention other than to legitimate the relaxation of the old law in those cases in which justice appeared to require it and to allow the jury in good conscience to arrive at a verdict which previously would have been perverse. In other words, the jury was given a normative as well as a fact-finding function. They were to determine not merely whether the behaviour of the accused complied with some legal standard but could determine for themselves what the standard in the particular case should be. In this way they could, as the Royal Commission said, "give weight to factors personal to the prisoner" in cases in which it appeared unjust not to do so.

    It follows, in my opinion, that it would not be consistent with section 3 for the judge to tell the jury as a matter of law that they should ignore any factor or characteristic of the accused in deciding whether the objective element of provocation had been satisfied. That would be to trespass upon their province. In a case in which the jury might consider that only by virtue of that characteristic was the act in question sufficiently provocative, the effect of such a direction would be to withdraw the issue of provocation altogether and this would be contrary to the terms of section 3.

    If, therefore, the purpose of section 3 was to legitimate the normative role of the jury and free their consciences from the burden of having to give a perverse verdict in order to do justice, it must have had a corresponding effect upon the nature of the directions they were to be given by the judge. It is inconceivable that he was intended to instruct them according to the letter of the old law, in the expectation or even the hope that in an appropriate case his directions would be ignored. It meant, as I have said, that he could no longer tell them that they were obliged as a matter of law to exclude "factors personal to the prisoner" from their consideration. But that did not mean that he was required to leave the jury at large and without any assistance in the exercise of their normative role. He could tell the jury that the doctrine of provocation included the principle of objectivity and that they should have regard to that principle in deciding whether the act in question was sufficiently provocative to be acceptable as a partial excuse.

    The radical change which the Act made in the role of judge and jury was not something which had been recommended by the Royal Commission. Their view was that, apart from removing any restrictions on the acts which could amount to provocation, the law should stay the same. It is interesting however to notice that something very similar to section 3 had been recommended a century earlier by the Criminal Law Commissioners in their Second Report of 1846. The Commissioners said (at p. 26):

    "It appears to us that the principle of extenuated homicide, being ascertained to be the loss of self-control arising from that human infirmity which is so general and almost universal as to render it proper to make allowances for it in admeasuring punishment, it is expedient to leave the consideration of this subject to juries, unfettered by arbitrary distinctions. According to the present law, there is some uncertainty as to the distinct provinces of judge and jury in such cases; and the rules and opinions above adduced show that a jury are precluded from considering whether particular circumstances of various kinds have tended to that loss of self-control which is natural to humanity. Some of these rules not unfrequently deny the benefit of extenuation in the very cases where human infirmity is most severely tried. It may be thought that there is the less danger of leaving to juries the application of the principle of law, which is a very plain one, as they may not be expected to take too lenient a view of an action which has occasioned the loss of life. At present, juries are often tempted to bring cases which manifestly fall within the principle of extenuation, also within the rule of it, by strained presumptions of fact or direct violations of their oaths.

    "It has been thought by some jurists that the criterion in these cases ought to be, what would take away the self-control of a person of ordinary temper. But we have thought it better to abide by the present law, according to which the circumstances of the individual accused are relevant to the question of extenuation."

    (For the subsequent fate of this proposal, see Professor K.J.M. Smith's book, Lawyers, Legislators and Theorists (1998) at p. 236-238).

7. D.P.P. v. Camplin [1978] A.C. 705.

    The Court of Appeal in Camplin held that section 3 had made no change in the concept of the reasonable man and that it was still bound by Bedder [1954] 1 W.L.R. 1119. But it distinguished that case on the ground that impotence was an abnormal characteristic, whereas nothing could be more normal than to be a boy of 15. As Bridge L.J. said, ([1978] 1 Q.B., 261).

    "youth, and the immaturity which naturally accompanies youth, are not deviations from the norm; they are norms through which we must all of us have passed before attaining adulthood and maturity."

The jury ought therefore to have been directed to consider whether the provocation was enough to make a reasonable person of the same age as the defendant behave as he did.

    In the House of Lords Lord Diplock, with whom Lords Fraser of Tullybelton and Lord Scarman agreed, gave the leading judgment. Lord Diplock drew attention to the express changes which section 3 made to the nature of a provocative act and to the role of judge and jury. He noted (at [1978] A.C. 705, 716) that the "reasonable man" had been preserved by the Act but said that it "falls to be applied now in the context of a law of provocation that is significantly different from what it was before the Act was passed." He pointed out, at p. 717, that:

    "now that the law has been changed so as to permit of words being treated as provocation . . . the gravity of verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed."

It would stultify this change in the law if the jury could not take into account "all those factors which in their opinion would affect the gravity of taunts or insults when applied to the person to whom they are addressed."

    So far, the reasoning is concerned solely with the relevance of the characteristics or circumstances of the accused to the gravity of the provocation. But the actual facts in Camplin were not primarily concerned with a characteristic with affected the gravity of the provocation. It is true that the gravity of the alleged taunts and sexual abuse may have been affected by the accused's consciousness of his physical and intellectual inferiority in relation to the deceased. But the main case for the defence was that a 15-year-old boy could not be expected to have the same powers of self-control as an adult. Lord Diplock acknowledged at pp. 717-718, that:

    "in strict logic there is a transition between treating age as a characteristic that may be taken into account in assessing the gravity of the provocation addressed to the accused and treating it as a characteristic to be taken into account in determining what is the degree of self-control to be expected of the ordinary person with whom the accused's conduct is to be compared. But to require old heads upon young shoulders is inconsistent with the law's compassion to human infirmity to which Sir Michael Foster ascribed the doctrine of provocation more than two centuries ago. The distinction as to the purposes for which it is legitimate to take the age of the accused into account involves considerations of too great nicety to warrant a place in deciding a matter of opinion, which is no longer one to be decided by a judge trained in logical reasoning but is to be decided by a jury drawing on their experience of how ordinary human beings behave in real life."

    This is a most important passage and I invite your Lordships' attention to the following points:

(1) Lord Diplock says that youth may be taken into account because the principle of compassion to human infirmity, as a jury drawing on their experience may apply it, requires one to do so. He does not say that the same principle of compassion is incapable of applying to any other characteristics which a jury might on similar grounds think should be taken into account. It would have been easy for him to have said that youth was for this purpose unique.

(2) Lord Diplock expressly rejects the distinction between the effect of age on the gravity of the provocation and on the power of self-control on the grounds that it is "of too great nicety" for application by a jury. Again, there is nothing to suggest that this comment is not equally true of other characteristics. Since Camplin, there is a great deal of material which demonstrates that Lord Diplock's scepticism about whether the distinction could be made to work in practice was well founded.

(3) If age were to be the only case in which a particular characteristic could be taken into account as relevant to the expected power of self-control, it would be necessary to explain why it should be so singled out. The High Court of Australia, in Stingel v. The Queen (1990) 171 C.L.R. 312, 330, said that it was because age is a normal characteristic: "the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness:" This explanation was embraced by Lord Goff of Chieveley in Luc Thiet Thuan v. The Queen [1997] A.C. 131, 140. It had, as I have said, been relied upon in Camplin by the Court of Appeal to distinguish Bedder. But the distinction between normal and abnormal characteristics was expressly rejected by Lord Diplock. He said (at p. 718) that:

    "The reasoning in Bedder would, I think, permit of this distinction between normal and abnormal characteristics, which may affect the powers of self-control of the accused; but for reasons that I have already mentioned the proposition stated in Bedder requires qualification as a consequence of the changes in the law effected by the Act of 1957. To try to salve what can remain of it without conflict with the Act could in my view only lead to unnecessary and unsatisfactory complexity in a question which has now become a question for the jury alone."

    My Lords, the important passage which I have cited from Lord Diplock's speech provides in my view no support for the theory, widely advanced in the literature, that he was making a clear distinction between characteristics relevant to the gravity of the provocation and characteristics relevant to the power of self-control, with age (and possibly sex) as arbitrary exceptions which could be taken into account for the latter purpose. This interpretation depends principally upon what Lord Diplock described as "a proper direction to the jury" which he gave at the end of his speech at p. 718:

    "The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question 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 think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did."

    The references to age and sex have been taken to mean that in all cases these are the only matters which should be mentioned as relevant to the question of self-control. It seems to me clear, however, that Lord Diplock was framing a suitable direction for a case like Camplin [1978] A.C. 705 and not a one-size-fits-all direction for every case of provocation. A jury would be puzzled about why they were being asked to pay particular attention to the age and sex of the defendant if he was an ordinary adult. A number of writers and judges have thought that Lord Diplock was wrong to include the sex of the accused (see for example, Stingel v. The Queen (1990) 171 C.L.R. 312, 331) and if the direction had been intended to be of general application, I would agree. But in my view Lord Diplock was only drawing attention to the fact that the hormonal development of male adolescents is different from that of females.

    Finally, my Lords, I draw attention to the concluding sentence of Lord Diplock's speech, in which he summed up why he thought it would be wrong to direct the jury that they were not entitled to take into account the youth of the accused. It was because:

    "So to direct them was to impose 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."

This, in my view, goes to the heart of the matter and is in accordance with the analysis of the effect of section 3 which I have made earlier in my speech. The jury is entitled to act upon its own opinion of whether the objective element of provocation has been satisfied and the judge is not entitled to tell them that for this purpose the law requires them to exclude from consideration any of the circumstances or characteristics of the accused.

8. The gravity of provocation/self-control distinction.

    Although D.P.P. v. Camplin [1978] A.C. 705 does not in my opinion provide authoritative support for the distinction between gravity of provocation and powers of self-control, it has been adopted in Australia (Stingel v. The Queen (1990) 171 C.L.R. 312) New Zealand (Reg. v. Campbell [1997] 1 N.Z.L.R. 16 and Reg. v. Rongonui (Court of Appeal, 13 April 2000, unreported); Canada (Reg. v. Hill [1986] 1 S.C.R. 313) and by the Privy Council for Hong Kong (Luc Thiet Thuan v. The Queen [1997] A.C. 131). It also has a good deal of academic support: see in particular Professor Ashworth's influential article "The Doctrine of Provocation" [1976] C.L.J. 292-320, Jeremy Horder, "Between Provocation and Diminished Responsibility" (1999) 2 K.C.L.J. 143-166 and Professor M.J. Allen, "Provocation's Reasonable Man: A Plea for Self-Control" [2000] Journal of Criminal Law 216-244. It must therefore be considered on its own merits.

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