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

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    The problem which faces the battered wife is in attributing her loss of self-control, not to its immediate cause (which may be trivial), but to the long history of ill-treatment which preceded it. Her difficulty arises from the fact that the defence is often seen in terms of "a sudden and immediate loss of self-control". In many situations this is a useful test for the jury to have in mind. The accused is unlikely to have lost his self-control by reason of provocation if he has had time to allow temper to cool and "reason to resume her sway." But in the case of the battered wife the test is unhelpful. There is no legal requirement that the defendant's reaction must be triggered by an event immediately preceding his loss of self-control: see Reg. v. Chhay (1994) 72A Crim. R. 1, 9 per Gleeson C.J.

    The question for the jury is whether a woman with normal powers of self-control, subjected to the treatment which the accused received, would or might finally react as she did. This calls for an exercise of imagination rather than medical evidence, but it does not dispense with the objective element. It does not involve an inquiry whether the accused was capable of displaying the powers of self-control of an ordinary person, but whether a person with the power of self-control of an ordinary person would or might have reacted in the same way to the cumulative effect of the treatment which she endured. The more difficult question in such a case is likely to be whether she lost her self-control at all, or acted out of a pre-meditated desire for revenge. On this issue the jury may be assisted by expert evidence to the effect that ill-treatment can act as a disinhibitor, and that the defendant's outward calm and submissiveness may be deceptive; they may have masked inner turmoil and suppressed rage.

    The other two cases should, in my opinion, normally be dealt with if at all by the defence of diminished responsibility. In both cases the disinhibiting factor is internal to the accused, and it is inappropriate to ascribe it to provocation. Post-natal depression is a common, and perhaps ordinary, product of child-birth; and it is tempting to equate it with age as an attribute of the ordinary person which the jury should take into account when considering the objective element in provocation. But I think that this is unsound. A woman suffering from post-natal depression may kill on trivial provocation or none at all. If the provocation is insufficient to cause a person of ordinary self-control to act as she did, then her actions are attributable to her depressive illness and not to the provocation.

    I agree with Professor Ashworth in the article to which I have already referred (at p. 312) that, while mitigation of the offences of those who are incapable of exercising ordinary self-control is desirable, the defence of provocation is not an appropriate vehicle. Where an individual who is congenitally incapable of exercising reasonable self-control is provoked by a petty affront, his loss of self-control must be ascribed to his own personality rather than to the provocation he received. In (1937) 37 Columbia L.R. 701, 1251, 1281 Wechsler and Michael write:

    "Other things being equal, the greater the provocation [measured objectively], the more ground there is for attributing the intensity of the actor's passions and his lack of self-control on the homicidal occasion to the extraordinary character of the situation in which he was placed rather than to any extraordinary deficiency in his own character."

    Professor Ashworth observes that the converse also holds true: where the provocation is objectively trivial, the defendant's loss of self-control should be attributed to his own deficiency rather than the provocation. He concludes that "congenitally incapable individuals have an independent claim to mitigation," and that "the defence of provocation is for those who are in a broad sense mentally normal." I agree with my noble and learned friend Lord Hobhouse that Reg. v. Raven [1982] C.L.R. 51 was a plain case of diminished responsibility. The jury should not have been asked to consider the extent of self-control capable of being exercised by an "ordinary" 22 year old with a mental age of nine.

    I express no opinion whether post-natal depression, personality disorders, and chronic inability to exercise self-control can be brought within the restrictive language of section 2 of the Act of 1957. If they can, they should be dealt with as instances of diminished responsibility. If they cannot, the objective element of provocation should not be eroded and its moral basis subverted in order to provide a defence of diminished responsibility outside the limits within which Parliament has chosen to confine it.

    I am not qualified to suggest, let alone lay down, any guide to the way in which the judge should explain matters to the jury. Everything will depend on the circumstances of the particular case, and those who preside over murder trials can call upon their great experience of the wide variety of contexts in which these problems arise. Where the jury has to consider both the defence of provocation and diminished responsibility, the judge will have to deal with them separately in his summing-up. How he does so will be a matter for him, but logic and ease of exposition would seem to require that the defence of provocation be ordinarily dealt with first, for the jury ought to consider whether the prosecution case is established before it turns to those matters where the burden of proof is on the accused. But even this must yield to the circumstances of the particular case and is a matter for the judgment of the trial judge.

    So far as the defence of provocation is concerned, I have already indicated my own view that it is confusing, and should be unnecessary, to instruct the jury that particular evidence is relevant to the gravity of the provocation and not the degree of self-control which the law requires everyone to exercise. It should be sufficient to separate the two questions (whether the accused was provoked to lose his self-control and whether a person of ordinary self-control would have reacted as he did) and to marshal the evidence which is relevant to each. Evidence that the accused was congenitally or temporarily incapable of exercising self-control is relevant to the first question but not the second. It is likely to confuse the jury if they are asked to conjure up the picture of the hypothetical reasonable man with some (but not all) of the characteristics of the accused. It may sometimes assist the jury if the second question is reformulated: would the accused himself have reacted in the same way if he had exercised ordinary powers of self-control? The jury may find it helpful to have the moral basis of the defence explained to them. Where both provocation and diminished responsibility are left to the jury, it may be helpful to draw the distinction between internal and external factors, and to tell the jury that, if they are satisfied that the accused did not exercise ordinary self-control in the face of some trivial provocation because he was congenitally or otherwise incapable of doing so, then they must consider whether the defence of diminished responsibility is established. But everything will depend upon the circumstances of the particular case and must be a matter for the judgment of the trial judge. I would deprecate intervention by the appellate courts on the grounds that the judge's directions could have been improved.

    In the present case I consider that Judge Coombe's summing up was sound and in accordance with law, and that it contained no material irregularity. The jury (not surprisingly) were unimpressed with the defence of provocation. They may well have taken the view that there was none. They must have taken the view that such provocation as there was, if any, was insufficient to cause an ordinary person to lose his self-control. I would allow the appeal and restore the conviction for murder.


My Lords,

    This appeal raises a question of statutory construction. The provision to be construed is s.3 of the Homicide Act 1957.

"Provocation Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self control, 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; and in determining that question the jury shall take into account everything both done and said according to the effect which, in their opinion, it would have on a reasonable man." The question is how is the word "reasonable" to be understood in this section. It is a question which has in the last 10 years given rise to repeated disputes before the courts.

    In the present case the trial judge, Judge Coombe, told the jury that

    "The 'reasonable man' means an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today." (p.17)

The Court of Appeal considered that he was wrong. They held that they were bound by previous Court of Appeal authority, Reg. v Campbell [1997] 1 Cr App Rep 199 and Reg. v. Parker (unreported) 25 February 1997 (96/5529), with which it is fair to add that they clearly seemed to agree, to adopt the dissenting opinion of Lord Steyn in Luc Thiet Thuan v The Queen [1997] AC 131 that, where a defendant suffers from brain damage, the jury must be directed that "reasonable man" means a reasonable man with brain damage and that in the present case the judge should, since there was evidence that the defendant suffered from a depressive illness, have directed the jury that "reasonable man" included a reasonable man suffering from depression. "The defendant may have been in a depressive state." (p. 32) They allowed the defendant's appeal but certified a point of law of general public importance and gave leave to the Crown to appeal to your Lordships' House.

    The question certified identifies the relevant issue of law. The agreed factual basis on which this issue arises can be shortly summarised. On the evening of Saturday 16 November 1996 the respondent and Mr McCullagh, a friend of the respondent were in the respondent's flat. Both had been drinking. The respondent killed Mr McCullagh by stabbing him some five times with a kitchen knife. The respondent told the police that he had killed Mr McCullagh because he had been caused to lose his self-control because Mr McCullagh would not admit that he had stolen some of the respondent's tools which the respondent had left in Mr McCullagh's flat some months earlier. He "just kept lying and lying". There was (disputed) psychiatric evidence that at the time the respondent was suffering from a severe depressive illness which would have adversely affected his powers of self-control - "disinhibited him". There appears to have been no factual basis for suggesting that the respondent's depressive illness had any relevance to the provocative behaviour of Mr McCullagh as such nor that it had any relevance to its gravity as provocation.

    Thus, central to the issue of law raised by this appeal is the purpose for which the evidence of mental abnormality is being treated as relevant. It is common ground that s. 3 and the common law of provocation require two questions to be answered. The first is the factual, or as some prefer to call it the 'subjective' question: Was the defendant provoked, whether by things said or done to lose his self-control and kill? Since this is a factual question, evidence of any mental or other abnormality which makes it more or less likely that the defendant lost his self-control is relevant and admissible, as is any evidence concerning the defendant which helps the understanding or assessment of the evidence of what occurred. In answering factual questions all relevant evidence is in principle admissible. For such purpose it does not matter whether the evidence relates to something which would be described as a 'characteristic' of the defendant. Thus, evidence may be relevant and therefore admissible that the defendant was at the time very drunk or under the influence of a hallucinogenic drug. Such evidence may of course cut either way. It may show that anything said or done did not affect the defendant's conduct which was simply due to his delusions. Or, it may show that something said or done which would not normally cause anyone to lose their self-control may have caused the defendant to do so.

    The second question is what is called the 'objective' question. It is, in the words of s. 3 "the question whether the provocation was enough to make a reasonable man do as the [defendant] did", taking "into account everything both done and said according to the effect which . . . it would have on a reasonable man." This question itself contains two elements. The first is the assessment of the gravity of the provocation. The second is the assessment how a reasonable man would react to provocation of that gravity. The second element involves applying a standard of self-control. Essential to the understanding of the authorities and the issue on this appeal is the distinction between these two elements. It is well established and not in dispute that in assessing the gravity of the provocation everything both said and done must be taken into account and that this inevitably involves taking into account any peculiarity of the defendant which affects that gravity. What is in dispute on this appeal is whether in applying the standard of self-control the jury should apply a qualified standard to reflect the respondent's lack of capacity to exercise ordinary self-control.

    The Court of Appeal accepted the respondent's submission that the standard of self-control should be the qualified one. Luc ThietThuan v The Queen [1997] A.C. 131 was a case in which this point arose for decision. Luc Thiet, although on appeal from Hong Kong was decided on the basis of English law. The opinion of the Privy Council was given by Lord Goff of Chieveley. It was held that the section required the standard of self-control of an ordinary person not that of a person who only had an abnormal and deficient capacity for self-control. Lord Steyn dissented. Lord Steyn stated that he was deciding in accordance with the previous decisions of the English Courts and by implication expressing the opinion that Lord Goff was not. Whether Lord Steyn's dissent did in truth accord with the earlier English authorities is in contention. It is an essential element in the correctness of his view of the law. Later judgments in the Court of Appeal have accepted Lord Steyn's view, referring to the earlier authorities but, it must be said, without themselves undertaking a close examination of what exactly was decided in them. My Lords, in this speech I will re-examine those authorities; I consider that, contrary to the view of Lord Steyn, they show that English law does not require that the jury be directed to visualise an ordinary (reasonable) man with abnormal (unreasonable) mental characteristics.

North J.

One of the sources of confusion has been the citation in English cases of a judgment of North J in the New Zealand Court of Appeal in Reg. v McGregor [1962] NZLR 1069. It was a substantial judgment impressively reviewing, partly obiter, various aspects of the law of provocation and expressing views about how the New Zealand Crimes Act 1961 should be construed. Obiter, he construed that Act in a way which superficially appears to conform to Lord Steyn's view of the point now in issue. (p.1081) But various of the views of North J. have been strongly criticised in New Zealand (Adams: Criminal Law and Practice) and must now be read subject to what was said by Cooke P in Reg. v McCarthy [1992] 2 NZLR 550. The difficulties with what North J said include that it is not wholly self-consistent and is strongly coloured by the fact that there is no defence of diminished responsibility in the law of New Zealand and therefore is amenable to the argument that the law of provocation should indirectly fill the gap. For example, the conundrum raised by the New Zealand case Reg. v Rongonui (13/4/00) is peculiar to New Zealand and the "mental gymnastics" complained of by Tipping J would not be required by English law.

    In order to follow the points which emerge from the authorities it is helpful to identify four points which arise in them. They can all be found referred to in the relevant passage from North J's judgment at pp.1081-2.

(1) 'Characteristics': This is a word emphasised by North J. which has found its way into the English authorities although it is not used in s. 3. Its purpose is restrictive. If attributes of the defendant are going to be taken into account, then it may be necessary to categorise attributes and hold that they must cross a threshold: they must amount to 'characteristics' of the defendant, not potentially transient states. Thus, North J said:

    "the characteristic must be something definite . . . and have also a sufficient degree of permanence to warrant its being regarded as something constituting part of the individual's character or personality. A disposition to be unduly suspicious or to lose one's temper readily will not suffice, nor will a temporary or transitory state of mind such as a mood of depression, excitability or irascibility."

(2) Relevance to the Provocation: This too was emphasised by North J. (at p.1082) Again its purpose is restrictive. He said:

    "Special difficulties, however, arise when it becomes necessary to consider what purely mental peculiarities may be allowed as characteristics. In our opinion it is not enough to constitute a characteristic that the offender should merely in some general way be mentally deficient or weak-minded. To allow this to be said would, as we have earlier indicated, deny any real operation to the reference made in the section to the ordinary man, and it would, moreover, go far towards the admission of a defence of diminished responsibility without any statutory authority in this country to sanction it. There must be something more, such as provocative words or acts directed to a particular phobia from which the offender suffers."

This is the point whether, for the purposes of the second question in s. 3, the attribute of the defendant must be relevant to the provocation as such - as where it is the reason why the conduct is provocative at all or it aggravates the gravity of the provocation. (3) Abnormality: Until the decision of the House of Lords in Reg. v Morhall [1996] 1 AC 90, there was a view that any abnormal characteristic must be wholly ignored for the purpose of the second question in s. 3 as being repugnant to the concept of the 'reasonable' man. (That had been the view of the Court of Appeal: [1993] 4 All E R 888, per Lord Taylor of Gosforth LCJ.) The view of North J had been that the characteristic had to be abnormal otherwise it was irrelevant and did not count: it must "make the offender a different person from the ordinary run of mankind". (4) Self-control: This is the critical point. For the purpose of answering the second question, is it permissible to allege that the defendant lacked the ordinary power of self-control. North J, subject to the three important qualifications already mentioned, thought it did:

    "The offender must be presumed to possess in general the power of self-control of the ordinary man, save in so far as his power of self-control is weakened because of some particular characteristic possessed by him."

It was in order to be able to say this that North J had effectively disregarded the plain words of the New Zealand statute - provocation "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 had confessedly introduced limitations upon the characteristics of the defendant which could be relied on.

Anthropomorphism etc:

    My Lords, the view of English law relied upon by the respondent on this appeal is a recent phenomenon. It has emerged gradually from the opinion of North J over little more than a decade. But the seeds from which it has sprung can be detected further back. A root cause is the inveterate (and not wholly unmeritorious) tendency of common lawyers to anthropomorphise concepts. Thus the test of liability in negligence was explained by reference to 'the man on the Clapham omnibus'. When the phrase 'reasonable man' (coming from 19th Century cases such as Reg. v Welsh (1869) 11 Cox 336) is used in s. 3, the common lawyer immediately tries to visualise and define some physical human being with identified characteristics (apparently both reasonable and unreasonable) whereas what the phrase is doing is identifying a concept, a standard of self-control. This standard is, as Lord Diplock and your Lordship's House have said in Reg. v Camplin [1978] AC 705, 717 those "powers of self-control as everyone is entitled to expect his fellow citizens will exercise in society as it is today". Lord Taylor LCJ confirmed the point in Reg v Dryden [1995] 4 All E R at 997: "The purpose of taking the reasonable man was to have a yardstick to measure the loss of self-control that will be permitted to found a defence of provocation." In Reg. v Morhall [1996] 1 AC at 90, 98, Lord Goff said: "The function of the test is only to introduce as a matter of policy a standard of self-control which has to be complied with if provocation is to be established in law."

    It is the anthropomorphic thinking and the artificialities to which it has given rise which have pervaded the more recent judgments of the Court of Appeal and been the primary cause of the confusions and errors which have led to a series of English cases in the decade before the present case came to the Court of Appeal and now a perceived conflict with a considered judgment of the Privy Council. If judges are encouraged or required to sum up to juries in artificial and self-contradictory anthropomorphic terms, it is no wonder that people are confused and critical. One can compare that with the simple and clearly understandable language used by Judge Coombe in the present case which is minimally anthropomorphic. Indeed, there is no complaint that the language of Judge Coombs was in any way obscure or incomprehensible. The complaint is that the jury will have understood his direction too well and therefore have excluded a factor in the respondent's favour which, it is said, they ought to have taken into account.

    There have been other contributory factors to which I will have to draw attention in the course of this speech. They include a recurringly expressed sentiment that the function of the law of provocation is to show mercy for inadequates, drawing upon statements (e.g. Reg. v Hayward (1833) 6 C & P 154 at 159 per Tyndal CJ) made over 150 years ago at a time when the rules of criminal evidence and procedure were radically different and the penalty for murder was death. This theme disregards that since then the concept of a reasonable standard of self-control has been developed in direct contradiction of such sentiments and that the significance of the sentiment was evaluated by the Royal Commission on Capital Punishment 1949-53 and the answer given by the Legislature, was to introduce into the English law of homicide the special defence of diminished responsibility. The absence of a consideration of the significance of s. 2 of the Act of 1957 is a striking feature of most of the judgments on s. 3.

Construing the 1957 Act in its Context: Diminished Responsibility:

    The answer to the question raised by this appeal must be found by construing s.3 in its context. The context is primarily statutory. The Act of 1957 was an Act which made important changes to the law of homicide at a time when there was still the death penalty for murder. It followed on and represented the Legislature's response to the recommendations contained in the Report of the Royal Commission on Capital Punishment (1953 Cmd. 8932). The Royal Commission had had to consider the death penalty as it existed at that time in English law. This included the questions what unlawful killings should be treated as murder and what killings which would otherwise amount to murder should nevertheless be treated as manslaughter. Part II of the Act of 1957 retained the death penalty for certain categories of killing creating two categories of murder, capital and non-capital. It was not until the passing of the Murder (Abolition of Death Penalty) Act 1965 that murder ceased for all purposes to be a capital offence. However the mandatory sentence was preserved so that any murderer had to be sentenced to life imprisonment. Thus, at the time of the passing of the Act of 1957, murder was, in practical terms, a unique peace-time offence in the severity of the penalty which it carried and it has remained unique in that the sentence is mandatory. It must be recognised that these features of the crime of murder have given rise to distortions of ordinary principles of criminal law, distortions which are peculiar to the law of murder

    The Act of 1957 was an amending act. It changed the existing law. Sections 1,2 and 3 all emerged from the discussion in the Report of the Royal Commission. Section 1 abolished the concept of "constructive malice" so removing a fiction which was no longer justified. Sections 2 and 3 have clear inter-relation. They both deal with factors which may affect the responsibility of the defendant for the killing. The premise upon which they both proceed is that the defendant has killed or been a party to the killing and has had the mens rea requisite to the crime of murder. Sections 2 and 3 provide defences which reduce what would otherwise have been murder to manslaughter, thus disapplying the mandatory sentences applicable to murder. Section 2, diminished responsibility, was a Scottish law concept wholly new to English law. Section 3 was a statutory alteration to an existing common law defence. Section 3, including the retention of the 'reasonable man' test, specifically derived from the recommendations of the Royal Commission as part of their review of all aspects of the existence of the death penalty. The Commission did not think that the introduction of the concept of diminished responsibility was justified although they carefully considered and recognised it merits. (See paragraphs 373-413.) Parliament however decided to introduce the defence, hence s. 2. Both sections address the same question: the defendant's act was unjustified and unlawful but he may not have been fully responsible for his act.

    In English law, if a defendant was insane at the time of doing the act in question, he is not criminally responsible at all: he lacks all mens rea. The test is that laid down in the M'Naghten Rules and does not without more include uncontrollable impulse. (Attorney-General for South Australia v Brown [1960] AC 432). The burden of proof is upon the defendant. Section 2 of the Act of 1957 introduces the new defence. As previously stated it presupposes that the prosecution has proved mens rea.

"(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing." Subsection (2) provides that the burden of proof shall be upon the defence. Subsection (3) provides that where the section applies the defendant shall be liable to be convicted of manslaughter.

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