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

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    The subject matter of this section and the special defence to murder which it provides is expressly "abnormality of mind" and consequential impairment of mental responsibility for the actus reus. It is a provision which covers any kind of abnormality of mind provided that it is relevant and sufficient substantially to impair the defendant's responsibility. It is thus a provision which expressly addresses and provides for such matters as brain damage and depressive illness. The Act lays down certain conditions. It is for the defendant to raise and prove the defence. The jury must be satisfied that the relevant mental feature is such as to substantially impair his responsibility.

    The striking thing about the present and similar cases is that the defendant is either unwilling to rely upon s. 2 or, having done so, fails to satisfy the jury and wishes then to adopt a strained construction of s. 3 in order to escape the burden of proof and introduce vaguer concepts not contemplated by either section. The present case has only come before the Court of Appeal and your Lordships' House because the jury, having heard the evidence and having been properly directed upon the law, rejected the defence under s. 2. They were not satisfied that whatever degree of depressive illness the respondent was suffering from was such as substantially to impair his mental responsibility for the killing, that is to say, the actual killing with which he was charged taking into account the circumstances in which it occurred.

    This is important because there seems in some quarters to be an implicit assumption that the assessment by a jury under s. 2 is inadequate properly to allow for the defendant's abnormality of mind in relation to any killing which was contributed to by provocation. There is no reason to make this assumption. Further, it is contrary to the drafting of s. 2 and to sections 2 and 3 read together. The brain damaged man has an abnormality of the mind. If it is of sufficient severity, in the opinion of the jury, to impair substantially his mental responsibility for killing his provoker, he will be found guilty of manslaughter, not murder, even if his action was not that of a reasonable man (indeed, one could say, because his action was not that of a reasonable man).

    If the defendant is merely someone with a personality disorder, for example an exceptionally violent or immoral disposition, he will not be able to rely on s. 2, nor will he be able to rely on s. 3 if his response to the provocation was disproportionate. This is all in accord with the specific policy of the Act and the ordinary principles of criminal responsibility. Similarly, if the defendant suffered from an abnormality but the jury do not consider it to be sufficient substantially to impair his responsibility, he will not have a defence under s. 2. This simply reflects the policy of the statute and it would be contrary to that policy to extend s. 3 to give him the defence advisedly denied him by s. 2.

    One of the errors that have bedevilled some of the recent judicial statements in this part of the English law of homicide is the failure to take account of the interaction of sections 2 and 3 and appreciate that they not only show that the strained construction of s. 3 is wrong but also that the perceived injustice which the strained construction is designed to avoid is in fact covered by an application of s. 2 in accordance with its ordinary meaning. Section 2 is of course capable of applying in any situation and those situations include a killing by a defendant who has killed after losing his self-control. A defendant in this situation can contend that his conduct was not abnormal and require the prosecution to satisfy the jury that his loss of self-control was not the result of provocation or his response to it was not that of a reasonable man. Or, he can contend and seek to satisfy the jury on the balance of probabilities that he had an abnormality of the mind which in the circumstances substantially reduced his mental responsibility for what he did. A defendant can of course place both contentions before the jury, as the respondent did in this case. The jury can then return a verdict of manslaughter on the one or the other basis. But it is always open to the jury to conclude (as no doubt the jury did in the present case) that the defendant's response was objectively disproportionate and that his abnormality of mind did not suffice to impair his mental responsibility for what he had done.

    This point was made by the Criminal Law Revision Committee and by Lord Simon of Glaisdale, by quotation, in Reg. v Camplin [1978] AC at p. 705, 726-7 -

    "In this country the law on this matter [provocation] has been indirectly affected by the introduction of the defence of diminished responsibility. It is now possible for a defendant to set up a combined defence of provocation and diminished responsibility, the practical effect being that the jury may return a verdict of manslaughter if they take the view that the defendant suffered from an abnormality of the mind and was provoked. In practice this may mean that a conviction of murder will be ruled out although the provocation was not such as would have moved a person of normal mentality to kill."

This very point had also been made by Lord Parker LCJ when giving the judgment of the Court of Appeal (which included Hilbery and Diplock JJ.) in Reg. v Byrne [1960] 2 QB 396, 402, recognising that the criterion of the reasonable man, "that is to say, a man with a normal mind" ruled out the defence of provocation for a sexual psychopath with "violent perverted sexual desires which he finds it difficult or impossible to control". His only available defence was accordingly diminished responsibility under s. 2. The judgment of Lord Parker and the decision in Byrne are strongly contradictory of the respondent's argument in the present case and the thesis that it is necessary and permitted to introduce abnormalities of mind into s. 3.

    The point can be similarly illustrated from Scottish law from which the statutory defence derives. The case in which diminished responsibility was first recognised as a defence, not merely as a ground for recommending mercy, was Alex Dingwall (1867) 5 Irv 466. The accused, Dingwall, was irreclaimably addicted to drink. He was weakminded but not insane. He had killed his wife with a carving knife, according to his account, after a quarrel because on Hogmanay she had hidden his supply of alcohol and his money. Whatever might now be the position in England, such facts would not then raise even an arguable case of provocation. Lord Deas directed the jury that they could return a verdict of culpable homicide not murder on the basis of his "weakness of mind": "the prisoner appeared not only to have been peculiar in his mental constitution, but to have had his mind weakened by successive attacks of disease." (p.479) In H.M. Adv. v. Robert Smith (1893) 1 Adam 34, the accused was subjected to a course of taunting by his fellow workmen which so affected him that he eventually killed one of his tormentors. The taunts were described as "altogether insufficient" to cause such a reaction in an ordinary man and this was regarded by Lord McClaren as indicating that his mind was displaced from its balance by the long course of provocation and he was convicted of culpable homicide on the ground of diminished responsibility. (See further Gordon: Criminal Law, 2nd edn. p.787.) In this case there was a causal link between the provocation and the accused's mental abnormality. (point 2)

    The defences of diminished responsibility and provocation are both recognised and are capable of operating separately. But, likewise, they can and very often do operate in conjunction. In English law by the Act of 1957 the two defences have been kept separate and are the subject of distinct provision - sections 2 and 3. But the two sections clearly form two parts of a legislative scheme for dealing with defendants who should not be treated as fully responsible for the death they have caused.

The Context: The Previous Law:

    Turning now to s. 3 itself, it is an amendment of the common law of provocation. At common law the burden of disproving provocation rests upon the prosecution. The section does not alter this. Nor does the section remove the requirement for there to be two constituents of the defence; indeed, the drafting of the section emphasises this requirement, specifying the two questions. The first is the purely factual question whether the defendant was provoked to lose his self-control. The second is the judgment whether the provocation was enough to make a reasonable man do as the defendant did. Section 3 changed the first constituent, the factual question, by adding "whether by things done or by things said or by both together". Prior to the Act, the loss of self-control had to be by reason of things done; things said were not as such enough even though they caused a loss of self-control. (Holmes v. DPP [1946] AC 588.) The Royal Commission recommended that this rule be reversed (paragraphs 146 and following) and the Legislature agreed. As a consequence the second question had to be worded in the section so as also to include the direction that the jury when determining the second question should take into account "everything both done and said".

    It is to be noted that neither the Royal Commission nor the Legislature saw any need to change the law in the manner which has since come into prominence. They retained the element of loss of self-control as a factual element of the defence of provocation. Historically, the relevant idea was to distinguish the motiveless killing. In Reg. v Duffy [1949] 1 All E R 932, the elegantly compressed definition of Devlin J (which unfortunately also contained a troublesome elision of the first and second questions) included the words "some act or a series of acts . . . which . . . actually caused in the accused a sudden and temporary loss of self-control". This factual requirement has caused factual difficulties in relation to certain types of killing where the conduct of the deceased has had a long term cumulative effect which has caused the defendant to reach the point where he or she decides that he or she can take no more and kills the deceased. The most usually instanced example of such a case is that of the battered woman. She does not suddenly lose her self-control in the normal use of that term; she is driven in a controlled fashion to decide to kill. The problem that this presents has been discussed in a number of cases in the Court of Appeal, particularly Reg. v Thornton [1992] 1 All E R 306, Reg. v Ahluwalia [1992] 4 All E R 889, Reg. v Humphreys [1995] 4 All E R 1008 and Reg. v Thornton (No. 2) [1996] 2 All E R 1023, and has been the primary subject of a written brief submitted to your Lordships by the interveners on this appeal. It also clearly influenced the dissent of Lord Steyn in Luc Thiet Thuan being the second example which he gave at the outset of his opinion (p.1048).

    It must be stressed that this question is not raised by this appeal. The question whether or not a defendant did in fact lose his self-control is a question of fact: it is part of the factual first question. If the jury are satisfied that the defendant did not actually lose his self-control, that is an end of the defence. The second question, the question of judgment, does not arise. There may be scope for amending the law of murder in this respect, as in a number of others, but that amendment was not made by s. 3 nor has it yet been made by any other Act of Parliament.

    My Lords, I now turn to the second question, the question with which we are concerned. Section 3 altered the existing law here as well. It required that the question be left to and decided by the jury and not by the judge. Previously judges had been withdrawing consideration of the defence from the jury because in the judgment of the judge a reasonable man would not have been deprived of his self-control. But s. 3 did not make any other alteration to the existing law save for the consequential change of wording (to which I have already referred) to take account of both things done and things said.

    The 'reasonable man' test had been specifically considered by the Royal Commission (paragraphs 141 and following). They discussed the argument that -

    "if the accused is mentally abnormal or is of subnormal intelligence or is a foreigner of more excitable temperament or is for some other reason particularly susceptible to provocation, it is neither fair nor reasonable to judge him by the standard of the ordinary Englishman."

They referred to and adopted the contrary argument that -

    "It is a fundamental principle of the criminal law that it should be based on a generally accepted standard of conduct applicable to all citizens alike, and it is important that this principle should not be infringed. Any departure from it might introduce a dangerous latitude into the law."

They did not recommend any change in the law of provocation in this respect. In reaching this conclusion they expressly mentioned in paragraph 143 the relevance of the Scottish defence of diminished responsibility to the question of a provoked defendant who suffered from some mental abnormality not amounting to insanity, a topic to which they said they would revert (as they did) in a later chapter. The interrelation of the two concepts was not overlooked.

    The Act of 1957 follows the same scheme. It preserves the 'reasonable man' test unchanged and separately introduces the new defence of diminished responsibility. The argument of the respondent on this appeal raises again the argument rejected by the Royal Commission and seeks to give the Act of 1957 an effect which it is patently not intended to have. Further, if the Legislature had intended to change the law in this respect, one would find some indication of it by a requirement that the jury were to be directed to take into account something which had previously been excluded - a reference to any abnormally deficient powers of self-control of the defendant. Instead the jury are required, in determining the second question, simply to "take into account everything both done and said according to the effect which in their opinion it would have on a reasonable man".

    There is no problem about ascertaining what was the law on this aspect before 1957. In R v Alexander (1913) 9 Cr App R 139, 141, the court rejected the argument that a mentally deficient person who was provoked into killing a man by his red hair would be able to plead provocation. In R v Lesbini [1914] 3 K.B. 1116, the Court of Appeal had to consider the case of a man who "was not of good mental balance, though not insane in the proper legal sense of the term" and refused to extend the defence of provocation and followed Alexander. The argument, said Lord Reading LCJ, at p. 1120

    "substantially amounts to this, that the Court ought to take into account different degrees of mental ability in the prisoners who come before it, and if one man's mental ability is less than another's it ought to be taken as a sufficient defence if the provocation given to that person in fact causes him to lose his self-control, although it would not otherwise be a sufficient defence because it would not be provocation which ought to affect the mind of a reasonable man."

    The argument was emphatically rejected. Lord Reading's rejection was approved by the House of Lords in Mancini v D.P.P. [1942] AC 1 per Viscount Simon LC at p.9


    "The test to be applied is that of the effect of the provocation on a reasonable man, as laid down by the Court of Criminal Appeal in R v Lesbini, so that an unusually excitable or pugnacious individual is not entitled to rely on provocation which would not have led an ordinary person to act as he did."

The argument rejected by Lord Reading is effectively the same as the argument which was rejected by the Royal Commission but has been repeated on this appeal. The Legislature in enacting s.3 likewise did not accept the argument in relation to provocation but, by introducing the defence of diminished responsibility in s.2, gave effect to it in a different way and to the extent Parliament thought proper.

    The word "reasonable" in s.3 was adopted by the draftsman of the statute from the earlier judicial terminology. (e.g. Reg. v Welsh (1869) 11 Cox 336.) It was, and is, a concept used not infrequently in the criminal law to prevent a legitimate defence from becoming a licence to commit crimes. A straightforward example is the concept of acting reasonably in self-defence. Acting unreasonably in self-defence destroys the defendant's justification for deliberately injuring his attacker. Unless the defendant has acted in accordance with the standards of self-restraint to be expected of an ordinary citizen, his act remains criminal although in fact done in self-defence. Another, analogous, example is the rule that self-induced intoxication (although it may, if sufficiently extreme, provide evidence to negative a specific intent) does not provide an offender with a defence; he remains criminally responsible for his acts despite his drunkenness and his inability in that state fully to appreciate and control his conduct. (e.g. Reg. v McCarthy [1954] 2 QB 105) A further example is to be found in the law of duress where direct parallels have been drawn with the public policy and ordinary powers of self-control required in relation to provocation. (Reg. v. Bowen [1996] 2 Cr App R 157: "The law requires the defendant to have the self-control of the ordinary citizen in his situation", per Stuart-Smith L.J. at p.162. This wording was drawn from the almost identical language of Lord Lane LCJ in Reg. v. Graham [1982] 1 WLR at 300 and Lord Mackay of Clashfern in Reg. v Howe [1987] AC at 459.) These are rules of criminal policy. They do not have a perfect logic nor do they operate with complete precision. Their function is not to introduce some additional exemption from criminal responsibility: it is to impose a constraint upon the availability of what would otherwise be liable to become an exorbitant defence.

Reg. v Camplin:

    Thus far there is nothing to support the respondent's argument. It has been rejected at every turn and has not been supported by the Act. However it is possible to see that the resurrection of the argument has partly derived from the drafting of s.3. When the alteration was made so as to enable provocation to be by words alone, inevitably peculiarities of the defendant became relevant. Physical provocation may affect all those subjected to it in a broadly similar way (except for the one-legged man who loses his crutch) and the reasonable man test was simpler to apply. But provocative words causing loss of self-control are far more likely to be specific to the defendant and his characteristics and will usually leave all others unmoved. How then, it is asked, can one answer the second question taking into account everything said "according to the effect it would have on a reasonable man"? In Reg. v Morhall [1996] 1 AC 90, the difficulty was caused by the fact that the defendant was a glue-sniffer who killed the man who was nagging him about his glue-sniffing. It is said, rhetorically, how can one have a reasonable glue-sniffer? It is a contradiction in terms just as is the idea of a reasonable drunkard.

    The answer is that the role of the second question is being misunderstood. Its purpose is, as previously stated, to provide a standard of ordinary self-control so as to compare the reaction of the defendant as he was in fact provoked to lose his self-control with the reaction of a person with ordinary powers of self-control to provocation of equal gravity. Its purpose is not to create for the jury some impossible self-contradictory chimera designed ultimately to displace the concept of reasonableness altogether. The correct purpose was made clear by Lord Diplock in Reg. v Camplin [1978] AC 705 in a speech with which the majority of their Lordships expressly agreed.

    There were two particular points which gave rise to argument in Camplin. The first was that the defendant was only 15 at the time of the killing and the trial judge had taken it upon himself to direct the jury that "reasonable man" must mean a man of full maturity and could not include a reasonable 15 year old boy. The second was that an argument was founded upon what had been said by Lord Simonds L.C. in Bedder v. DPP [1954] 1 WLR 1119 before passing of the Act and at a time when provocative words had to be left out of account. With the concurrence of the House, he had said, at p.1123:

    "It was urged upon your Lordships that the hypothetical reasonable man must be confronted with all the same circumstances as the accused and that this could not be fairly done unless he was also invested with the peculiar characteristics of the accused. But this makes nonsense of the test. Its purpose is to invite the jury to consider the act of the accused by reference to a certain standard or norm of conduct and with this object the 'reasonable' or the 'average' or the 'normal' man is invoked. If the reasonable man is then deprived in whole or in part of his reason or the normal man endowed with abnormal characteristics, the test ceases to have any value. This is precisely the consideration which led this House in Mancini's case to say that an unusually excitable or pugnacious person is not entitled to rely on provocation which would not have led an ordinary person to act as he did."

The attribution of characteristics (be they normal or abnormal) of the defendant to the hypothetical reasonable man was an obvious source of confusion.

    Lord Diplock stressed that s. 3 recognised and retained the dual test for provocation. He also confirmed his agreement with Lord Simon of Glaisdale that evidence is not admissible upon the second question. He then stated, at p. 717 the meaning of the phrase "reasonable man" for the purposes of the law of provocation:

    "It 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."

Lord Diplock explained the effect of the change in the law made by s. 3 in relation to provocative words:

    "But so long as words unaccompanied by violence could not in law amount to provocation the relevant proportionality between provocation and retaliation was primarily one of degrees of violence. Words spoken to the accused before the violence started were not normally to be included in the proportion sum. But now that the law has been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, 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. To taunt a person because of his race, his physical infirmities or some shameful incident in his past may well be considered by the jury to be more offensive to the person addressed, however equable his temperament, if the facts on which the taunt is founded are true than it would be if they were not. It would stultify much of the mitigation of the previous harshness of the common law in ruling out verbal provocation as capable of reducing murder to manslaughter if the jury could not take into consideration 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 to this extent at any rate the unqualified proposition accepted by this House in Bedder v. Director of Public Prosecutions [1954] 1 WLR 1119 that for the purposes of the 'reasonable man' test any unusual physical characteristics of the accused must be ignored requires revision as a result of the passing of the Act of 1957.

His opinion was that it was, since the Act, better not to refer juries to what was said in Bedder in the interests of avoiding unnecessary complexity. He was clearly of the view that the word 'reasonable' was still to be treated as a synonym for ordinary or normal. Thus, in summarising his view as to the appropriate way in which the trial judge should direct a jury on the second question, he said, at p. 718:

    "He should 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." (emphasis supplied)

As I have emphasised, his formulation is based upon the assumption of the possession of ordinary powers of self-control and it is only in other respects that the defendant's abnormal characteristics are to be taken into account. It is also loyal to the drafting of s. 3 which is concerned with the effect the provocation would have on the reasonable/ordinary man.

    Lord Morris expressly agreed with Lord Diplock's direction and his speech discloses no marked differences. Lord Fraser and Lord Scarman agreed with the speech of Lord Diplock.

    Lord Simon, at p.726, said: "In my judgment the reference to 'a reasonable man' at the end of the section means 'a man of ordinary self-control'." Thus Lord Simon, like Lord Diplock, equated the concept of the reasonable man with a man with ordinary powers of self control. (See also Lord Simon to the same effect at p.725D and his express agreement at p.727 with Lord Diplock's model direction.) All this is loyal to the view of the Royal Commission and the drafting of the section and directly contrary to the respondent's argument in the present case.

    However, Lord Simon elsewhere used language which seems to have led Lord Steyn later to read his speech differently. At p.727, he referred to the law of New Zealand and s. 169(2) of the Crimes Act 1961, which uses the words I have quoted earlier: "Anything done or said may be provocation if . . . 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." Linguistically, this is a formula very similar to that approved by Lord Diplock at p.718. Lord Simon commented that the subsection, as in explained Reg. v McGregor, was, he thought, "substantially the same" as the law as it now stands in this country. He also, at p.726 misquoted the English Act as if s. 3 said taking "into account everything according to the effect it would have on a reasonable man". (His emphasis) Lord Simon was using this to show that the section requires the jury to take into account a characteristic of the defendant "which particularly points the insult" (North J's point 2). He was not departing from what Lord Diplock had said; he was simply anticipating what would be the majority judgment in Luc Thiet. But, as Lord Taylor was later to point out in Reg. v Morhall [1993] 4 All E R 888, to omit the words "both said and done" inevitably alters the sense and invites confusion if the context in his speech is overlooked.

Lord Lane:

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