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

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    It is proper to notice that section 2 of the Act introduced a defence of diminished responsibility into English law whereby a conviction for manslaughter could be returned instead of a conviction for murder. The scope of that provision is not for consideration in the present case, but it is not to be supposed that there no room for some degree of overlap between the availability of both section 2 and section 3 in particular circumstances. Both are mitigating factors in cases of homicide. The one requires an abnormality of mind such as substantially impairs the accused's mental responsibility. The other requires the existence of provocative acts or words and a consequent temporary loss of self control in the heat of the moment. But circumstances could possibly occur where all these factors could be identified. But the scope of the common law defence of provocation, as qualified by the provisions of section 3, should not be determined by the arrival of the distinct statutory defence of diminished responsibility. Section 3 did not re-define the defence of provocation and the fact that by section 2 the distinct defence of diminished responsibility due to a mental abnormality was introduced should not be allowed to alter the scope or substance of the defence of provocation or colour one's approach to an understanding of it. The defence of diminished responsibility had its origins in Scottish criminal law but the present case is not concerned with that defence. So far as provocation is concerned some care may be required in the invocation of older Scottish precedent in the interpretation of the English statute. Certainly in the older law there were distinct differences in the approach to provocation from those recognised in England. Hume (Commentaries on the Law of Scotland respecting Crimes, 3rd ed. (1844), pp. 247 and 250) points out expressly that while a pull by the nose or a fillip on the forehead may be sufficient provocation in England, such a rule was quite unsuitable to Scottish practice which required the infliction of a much more severe injury. It has not been suggested that the law of Scotland can provide any direct assistance upon the critical point at issue in this case (see Professor Gordon, Criminal Law, 2nd ed. 25-37 and the Stair Encyclopaedia, vol 7 para 275).

    It is the reference in section 3 to a "reasonable man" which has given rise to the problem in the present appeal. The particular problem can be expressed by asking whether the depressive illness from which the respondent was said to be suffering is to be attributed to the reasonable man. The Court of Appeal has held that it is something which in the present case should be taken into account. The appellant argues for a more objective approach which would exclude such a characteristic.

    Since section 3 has not provided a complete statement of the law of provocation but has simply added some qualifications to the existing position it is necessary to return initially to the common law. Provocation was recognised as a factor which could operate to reduce murder to manslaughter for a very considerable period before the Act of 1957. Its purpose was to enable the jury to take account of the plight of an individual accused where his particular situation called for relief from the rigour of the law. It was prompted by, to use the language of Tindal C.J. in Reg. v. Hayward (1833) 6 C. & P. 154, 159, "compassion to human infirmity." Such a quality is capable of varying in its intensity according to the changing views of society and a greater understanding of human behaviour and of the pressures and stresses under which people may be driven to act. The law recognises that, as Parke B. put it in Reg. v. Thomas (1837) 7 C. & P. 817, 819 "anger is a passion to which good and bad men are both subject," and so the law makes allowance for a case where passion has temporarily deprived a person of his or her reasoning facilities. To quote from the summing up by Coleridge J. in Reg. v. William Kirkham (1837) 8 C. & P. 115, 117:

    "the law has at once a sacred regard for human life and also a respect for man's failings, and will not require more from an imperfect creature than he can perform; and therefore, as it is well known that there are certain things which so stir up a man's blood that he can no longer be his own master, the law makes allowance for them."

In principle it is not easy to see how the plight of the individual accused can appropriately be taken into account if the standard of his conduct is to be tested by reference to an artificial concept remote from his own situation. The idea of provocation was no doubt born and bred in the context of a system which admitted capital punishment. That certainly added an edge to anxiety to secure that a fair and just treatment was afforded in cases of homicide. But the need for compassion may still hold where a distinction is preserved between the disposal for cases of murder and cases of manslaughter, and may indeed remain even if a formal distinction was removed.

    One essential element for the availability of a plea of provocation has always been that the act be done in the heat of passion fired by the provocation before reason has returned. If, as by the passage of time, an initial passion has cooled and self control has been regained, then the necessary connection between the provocation and the homicide which is alleged to have been prompted by it will be available to support the defence. It is of interest in the context of the present case to note that in considering whether the time was sufficient for reason to have returned account has been taken of the diminished intelligence of a particular accused. In Reg. v. Lynch (1832) 5 C. & P. 324, 325 Lord Tenterden in summing up said:

    "If you think that there was not time and interval sufficient for the passion of a man proved to be of no very strong intellect to cool, and for reason to regain her dominion over his mind, then you will say that the prisoner is guilty only of manslaughter."

    But for present purposes a more important consideration is that there should be a proportionality between the provocation and the response measured by what is acceptable to society. This element was recognised in Reg. v. Kirkham (1837 ) 8 C. & P. 115, 119 where the Coleridge J. observed 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 control over his passions."

The same concern was expressed in Reg. v. Oneby (1727) 2 Ld. Raym. 1485, 1496, where it was said of anger and passion "which a man ought to keep under and govern." But while society rightly expects that people should keep a rein over their passions, that expectation has to be seen against the realistic context of the variety of natures which mankind comprise. Some may be stoical or insensitive in the face of provocation and for them the problems to which this case gives rise may never occur. Others may require to make a solid conscious effort to restrain themselves in accordance with the requirements of society's expectations, and if they give way where they could and should have exercised a due restraint they may fail to qualify under the extenuation provided by the doctrine of provocation. Others may through no failure or shortcoming of their own be unable to achieve the level of control which could be met by others not similarly circumstanced. Examples of those with a post-natal depression or a personality disorder readily come to mind. It would seem to me unrealistic not to recognise the plight of such cases and refuse the compassion of the law to them.

    But if the appellant is correct, it seems to me that there would be a serious risk of injustice being done in some cases where the homicide is due to provocation but the condition of the accused falls short of a mental abnormality. While I fully recognise the importance of not allowing the effects of a quarrelsome or choleric temperament to serve as a factor which may reduce the crime of murder to one of manslaughter, nevertheless I consider that justice cannot be done without regard to the particular frailties of particular individuals where their capacity to restrain themselves in the face of provocation is lessened by some affliction which falls short of a mental abnormality. It does not seem to me that it would be just if in assessing their guilt in a matter of homicide a standard of behaviour had to be applied to people which they are incapable of attaining. I would not regard it as just for a plea of provocation made by a battered wife whose condition falls short of a mental abnormality to be rejected on the ground that a reasonable person would not have reacted to the provocation as she did. The reasonable person in such a case should be one who is exercising a reasonable level of self-control for someone with her history, her experience and her state of mind. On such an approach a jury should be perfectly capable of returning a realistic answer and thus achieve a verdict which would fairly meet any peculiarities of the particular case consistently with the recognition of the importance of curbing temper and passion in the interest of civil order.

    It is in the context of this relationship between the provocation and the homicide that the language of reasonableness has come to be adopted. An appeal to what is reasonable can be used as a test of the credibility of an assertion. The accused who asserts that he killed under provocation may be disbelieved on the ground that no one in his position would reasonably be provoked in the particular circumstances. Here the concept is of evidential significance. But in the context of the present statute the concept of reasonableness is adopted as a point of substance. It is to be used as a standard against which the conduct of the accused is to be measured. Two observations then fall to be made. One is that the use of the language of reasonableness appears to open the way to an analysis of the provocation on the one hand and the response to it on the other. One may talk of the reasonableness of the provocation which triggers the loss of self control and the reasonableness of the response. But the exercise is essentially one of assessing the reasonableness of the relationship between them. There are no variables to be independently assessed in relation to either of the two elements in any given case. The response is always a constant; it is the homicide. The provocation may vary from case to case but the particular substance of it in any given case will be identifiable. It seems to me that the critical question is that of the proportionality between the provocation and the response. The gravity of the provocation, which prompts the loss of self-control, and the reasonableness of the response may both be aspects of the same question. It is useful to recall the language used by Devlin J. in the directions which he gave in Reg. v. Duffy [1949] 1 All E.R. 932, which Lord Goddard quoted in the appeal in that case as providing as good a definition as he had read. In the course of the passage Devlin J. noted two important things. The first was whether there had been time for passion to cool and to regain dominion over the mind. Then he continued:

    "Secondly, in considering whether provocation has or has not been made out, you must consider the retaliation in provocation - that is to say, whether the mode of resentment bears some proper and reasonable relationship to the sort of provocation that has been given…."

    The second observation is that the reference to reasonableness invites into the discussion the concept of the reasonable man. The idea of reasonableness was developed in Reg. v. Welsh (1869) 11 Cox 336 by Keating J. who applied the concept to provocation, raising the question (at p. 337) "not merely whether there was passion, but whether there was reasonable provocation." The introduction of the reasonable man appears in his summing up where he refers (p. 538) to the possibility of attributing the accused's act to the violence of passion naturally arising from the provocation "and likely to be aroused thereby in the breast of the reasonable man." He later said:

    "The law contemplates the case of a reasonable man, and requires that the provocation be such as that such a man might naturally be induced, in the anger of the moment, to commit the act."

But once the reasonable man was let loose on the law of provocation it became easy to advance to an increasingly objective approach to the matter. That advance can be traced from Welsh through such cases as Rex. v. Alexander [1913] 9 Cr.App.Rep. 139, Rex. v. Lesbini [1914] 3 K.B. 1116, Rex. v. Mancini [1942] A.C.1, and Holmes v. Director of Public Prosecutions [1946] A.C. 588 to Bedder v. Director of Public Prosecutions [1954] 1 W.L.R. 1119, 1121 where it was affirmed that:

    "infirmity of body or affliction of the mind of the assailant is not material in testing whether there has been provocation by the deceased to justify the violence used so as to reduce the act of killing to manslaughter."

The effect of the accused's impotence upon his mind was not the test; the jury required to consider the effect of the provocation upon a man without the particular physical qualities of the accused. It may be thought that the introduction of the reasonable man to this area of the law has added unnecessary obscurity to what ought to be a matter of relative simplicity; but he has been perpetuated in the formulation of the statutory provision. All the greater care is needed to secure that he does not lead the law into wonderland.

    There is then a potential tension between the requirement of society that people should restrain their natural passions and the law's compassion for those who under the stress of provocation temporarily lose their self control. This is not solved by recourse to the concept of the reasonable man. That concept may indeed make the solution the more elusive. At the one extreme a totally subjective approach effectively removes reference to any standard and flies in the face of the statute. At the other extreme the accused may be convicted of murder even although the jury believe that he was so provoked as to have lost his self control, because they think that a reasonable man, who may be someone quite unlike the accused, would not have lose control in such circumstances. When what is at issue is the scale of punishment which should be awarded for his conduct it seems to me unjust that the determination should be governed not by the actual facts relating to the particular accused but by the blind application of an objective standard of good conduct.

    Even those who are sympathetic with what may be described as an objective approach have to recognise that at its extreme it is unacceptable. So a concession is made for considerations of the age and sex of the accused. But then the problem arises why consideration should not be given to other characteristics. Some groups of people may be seen to be by nature more susceptible to provocation than others. Some races may be more hot-blooded than others. Nor do age or gender necessarily carry with them unusual levels of self control or the lack of it. The problem is to identify where in the middle ground between these two extremes the line is to be drawn. It seems to me that the standard of reasonableness in this context should refer to a person exercising the ordinary power of self-control over his passions which someone in his position is able to exercise and is expected by society to exercise. By position I mean to include all the characteristics which the particular individual possesses and which may in the circumstances bear on his power of control other than those influences which have been self-induced. Society should require that he exercise a reasonable control over himself, but the limits within which control is reasonably to be demanded must take account of characteristics peculiar to him which reduce the extent to which he is capable of controlling himself. Such characteristics as an exceptional pugnacity or excitability will not suffice. Such tendencies require to be controlled. Section 3 requires that the accused should have made reasonable efforts to control himself within the limits of what he is reasonably able to do. This is not to destroy the idea of the reasonable man nor to reincarnate him; it is simply to clothe him with a reasonable degree of reality. But as the statute prescribes, the matter comes to be one of the circumstances of the case and the good sense of the jury. Although the statute expressly refers to a reasonable man it does not follow that in directing a jury on provocation a judge must in every case use that particular expression. The substance of the section may well be conveyed without necessarily importing the concept of a reasonable man.

    Much of the debate in the appeal concerned the speeches in the important case of Reg. v. Camplin [1978] A.C. 705. There are five particular points which I take from that case. First, it was held that since provocation could now consist of words as well as actings any unusual characteristic of the accused which was the object of the provocative taunt had now to be recognised as relevant. So at least to that extent what had been said in Bedder [1954] 1 W.L.R. 1119 required revision. I take this from the passage in the speech of Lord Diplock at p. 717C-F.

    Secondly, and more importantly, it is not only in relation to the gravity of the provocation that account may be taken of a relevant characteristic of the accused. Account may also be taken of a relevant characteristic in relation to the accused's power of self control, whether or not the characteristic is the object of the provocation. In Camplin the relevant characteristic was the accused's age. But the provocation was not directed at his youthfulness. Lord Diplock recognised a lack of logic in extending the relevance of the characteristic from the gravity of the provocation to the power of self control, but justified it on two grounds: first, the law's compassion to human infirmity, and second, the excessive difficulty for a jury to make the nice distinction between the relevance of the characteristic for the one purpose and not for the other. This is what I understand is intended by the important passage in Lord Diplock's speech at pp. 717F -718B . It is echoed in the speech of Lord Simon of Glaisdale where he says at p. 727F:

    "But whether the defendant exercised reasonable self-control in the totality of the circumstances (which would include the pregnancy or the immaturity or the malformation) would be entirely a matter for consideration by the jury without further evidence. The jury would, as ever, use their collective common sense to determine whether the provocation was sufficient to make a person of reasonable self-control in the totality of the circumstances (including personal characteristics) act as the defendant did."

    Thirdly, and associated with the point just made, while evidence may be admitted to show the existence of a particular characteristic, evidence is not admissible to show what effect such a characteristic might have on a person's self control or whether the characteristic did in fact have an effect on the self control of the accused in the circumstances of the case. That is left to the good sense of the jury.

    Fourthly, the whole authority of the former cases, Mancini [1942] A.C. 1 Holmes [1946] A.C. 588 and Bedder [1954] 1 W.L.R. 1119, should no longer be recognised. As Lord Diplock observed of Bedder [1978] A.C. 705, 718D:

    "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."

    Fifthly, so far as the "reasonable man" is concerned that is to be understood as referring to the standard of reasonable behaviour expected of a person in the situation of and with the characteristics of the accused. It is here particularly that the context of the facts in Camplin have to be borne in mind. The House in that case was concerned with the problem of the young age of the accused. The precise words used in the suggested direction have to be read in the factual context of the particular case. The intention was not to limit the scope of provocation to the characteristics which featured in that case. The precise problem raised in the present case was not in issue. The policy which historically underlay the introduction of the reference to the "reasonable man" was, as Lord Diplock explained at p. 716, to prevent a person relying upon his own exceptional pugnacity or excitability as an excuse for loss of self control. Lord Simon of Glaisdale echoed that view (at p. 726) adding drunkenness to the list. All these matters may be seen as lying within the limits of a reasonable self control and on that basis they should not be allowed to qualify as mitigating factors. But beyond that it seems to me that the person whom Lord Diplock had in mind when setting out his proposed direction to the jury at p. 718 was a person who was not only of the same sex and age as the accused but also shared such of his or her characteristics as in the view of the jury would affect the gravity of the provocation to that particular person. He went on to explain that the question was not merely whether such a person would in like circumstances be provoked to lose his or her self control but also whether he or she would react to the provocation as the accused did. I do not understand that a distinction is here being suggested between matters affecting the gravity of the provocation and matters affecting self control. If the relevance of the characteristic in question had been limited to the gravity of the provocation the case would not have been decided in the way it was. Consistently with what he had said earlier I consider that the direction is intended to indicate the relevance of the accused's characteristics to his power of self control. As Lord Simon of Glaisdale observed (at p. 727):

    "I think that the standard of self-control which the law requires before provocation is held to reduce murder to manslaughter is still that of the reasonable person (hence his invocation in section 3); but that, in determining whether a person of reasonable self-control would lose it in the circumstances, the entire factual situation, which includes the characteristics of the accused, must be considered."

From the arguments presented before us it seemed that some assistance might be found in the jurisprudence which has developed in New Zealand. In Camplin Lord Simon of Glaisdale stated (p. 727):

    "I think that the law as it now stands in this country is substantially the same as as that enacted in the New Zealand Crimes Act 1961, section 169(2), as explained by the Court of Appeal of New Zealand in Reg. v. McGregor [1962] N.Z.L.R 1069."

Section 169(2) provided:

    "(2) Anything done or said may be provocation if

    (a) In the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control; and

    (b) It did in fact deprive the offender of the power of self-control and thereby induced him to commit the act of homicide."

    In McGregor North J. presented a series of observations on the construction of the section. He noted that it required a fusion of the objective and subjective approaches and sought to resolve that by reference to the limitations to be placed upon the word "characteristics." In discussing that he excluded temporary or transitory factors, excitability or irascibility, and drunkenness. The characteristic must be such "that it can fairly be said that the offender is thereby marked off or distinguished from the ordinary man of the community." He then proceeded to a further point, that there must be "a real connection between the nature of the provocation and the particular characteristic of the offender."

    That requirement, which was expressed in what I have referred to as the further point in the judgment, takes no account of the second of the points which I have already noted as arising from Camplion namely the desirability of avoiding the drawing of a distinction between the gravity of the provocation and the power of self control in relation to the relevance of the particular characteristics of the accused and it was that aspect of the observations of North J. which came to be further considered in Reg. v. McCarthy [1992] 2 N.Z.L.R. 550. The passage in North J's judgment in McGregor which was quoted by Cooke J. in McCarthy only begins with what I have referred to as the further point. His criticism is of the necessity to find that the provocation must be "directed at" a particular characteristic. This element only adds an unjustifiable aggravation of the difficulty of applying the section. In that respect it seems to me that Cooke J. was in effect following the guidance given in Camplin. Moreover he expressly stated that (p. 558) that:

    "A racial characteristic of the accused, his or her age or sex, mental deficiency, or a tendency to excessive emotionalism as a result of brain injury are, for the purposes of section 169(2)(a), examples of characteristics of the offender to be attributed to the hypothetical person. In a case where any of them apply, the ordinary power of self-control falls to be assessed on the assumption that the person has the same characteristics."

Later he observed that the question to be answered under section 169(2)(a) is "whether a person with the accused's characteristics other than any lack of the ordinary power of self-control could have reacted in the same way."

    However during the course of the preparation of this speech my attention has been drawn to the recent decision of the Court of Appeal in New Zealand in The Queen v. Janine Waiwera Rongonui [13 April 2000] from which I understand that my reading of McCarthy may be incorrect. The majority of the judges in Rongonui adopted a more literal construction of section 162 whereby the special characteristics of the accused are relevant to the gravity of the provocation but not to the accused's self-control. If I have correctly understood the majority view, it appears that Lord Simon of Glaisdale's observation in Camplin on the substantial similarity between the law of England and the statutory provision in New Zealand is no longer apt. This may be an illustration of the danger of seeking assistance in the construction of one statutory provision by reference to another which is in different terms. It is also proper to bear in mind that the New Zealand statute did not include a provision for a defence of diminished responsibility and that may lead to differences in the application of the respective provisions. Examples of what might more readily be seen as falling under section 2 of the Act of 1957 may only be brought in New Zealand as examples of provocation.

    The idea expressed in McGregor that the provocation required to be directed at the particular characteristics was taken up in Reg. v. Newell [1980] 71 Cr. App. Rep. 331, but, as Lord Goff of Chieveley warned in Reg. v. Morhall [1996] 1 A.C. 90, 100, regard should now be had to the reservations about that case expressed in McCarthy. Certainly it should now be affirmed that while the fact that a taunt is directed at a particular characteristic is a relevant matter for consideration, provocation is by no means restricted in its scope to such situations. But, looking at the matter more broadly, it seems to me that over the last few years the English courts have followed the guidance of Camplin and the earlier part of the observations in McGregor in the cases where, like the present case, the provocation was not some taunt directed at some particular characteristic of the accused. In Reg. v. Raven [1962] Crim. L. R. 51 the retarded development and low mental age of the accused were held to be relevant considerations in a case of provocation in the form of sexual assaults. In Reg. v. Ahluwalia [1992] 4 All E.R. 889 the court found no evidence of a post-traumatic stress disorder or battered woman syndrome which might have qualified as a characteristic as defined in McGregor; If there had been "different considerations may have applied." On the evidence there was nothing to support the proposition that the accused was marked off from the ordinary women of the community as having some altered personality or mental state. In Reg. v. Dryden [1995] 4 All E.R. 987 Lord Taylor of Gosforth C.J. followed Camplin and the earlier part of the observations by North J. in McGregor in holding that in the context of loss of self-control the obsessiveness and eccentricity of the accused were characteristics which should have been taken into account. In Reg. v. Thornton (No.2) [1996] 2 All E.R. 1023 the accused's personality disorder and the effect on her mental make-up of a period of abuse by the deceased were held relevant to the question (p. 1031): "whether the hypothetical reasonable woman possessing the accused's characteristics would have reacted to the provocative conduct so as to do what the appellant did." If we were to allow the present appeal I do not think that we could avoid overturning a well-settled development of the criminal law to say nothing of the decision in Camplin from which the developments have proceeded. I am not persuaded that such a revolution in the law would be justified.

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