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

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    Three months later, these parts of the speech of Lord Simon were referred to by a Court of Appeal presided over by Lord Lane LCJ in their judgment in Reg v Newell (1980) 71 Cr A R 331. The case of Newell concerned a defendant, a chronic alcoholic, who had killed a friend, another man, whilst they were both seriously drunk. The defendant's much younger girl friend had recently left him and the two mens' drunken binge was a consequence. However at one point the friend made a remark disparaging the girl and said that the defendant might as well come to bed with him, whereupon the defendant picked up a heavy ashtray and struck his friend violently on the head some 20 times, killing him. His relevant defences were diminished responsibility and provocation. The jury convicted him of murder. The Court of Appeal dismissed the appeal. The main point was whether for the purpose of the law of provocation the jury should have been directed to take into account the defendant's chronic alcoholism. The answer given by the Court of Appeal was that they should not: "It had nothing to do with the words by which it is said he was provoked." (p.340)

    For the present appeal, this is an important case. The defendant was not just drunk. He was an alcoholic. He suffered from a disability which was capable of affecting his powers of self-control and reducing them below that to be expected of an ordinary man. This chronic incapacity might arguably come within North J's definition of 'characteristic' (point 1). The Court were prepared to assume that it did (p.340). It was abnormal (point 3). It affected his powers of self-control (point 4). But it was not relevant to the provocation (point 2). North J would accordingly have said that that the jury should be directed to ignore the alcoholism. That also was the decision and the reasoning of the Court of Appeal and Lord Lane.

    It thus can be seen that the decision and the reasoning does not support the respondent's argument here: it is an authority against the respondent. If the respondent's argument were correct, the Court of Appeal would have decided that appeal the other way. The abnormality of the defendant was to be left out of account, not because it did not affect his powers of self-control but because it did not aggravate the provocation. There is nothing in the judgment of Lord Lane which questions the continuing applicability of Lesbini.

    However in this (probably unreserved) judgment there is again some language which has later caused confusion. Lord Simon's misquotation was repeated. More importantly, the judgment includes a long quotation from North J and describes its reasoning as impeccable and commends its language as plain and easily comprehended: "It represents, we think, the law of this country as well as the law of New Zealand." But it concludes: "If the test set out in McGregor is applied, the learned judge was right in not inviting the jury to take chronic alcoholism into account on the question of provocation."

    What has gone wrong in some later cases is that isolated sentences have been lifted from North J without his qualifications and Lord Lane has been treated as approving such unqualified statements whereas the whole basis of the judgment and decision in Newell is the acceptance of the qualifications and the insistence that they be satisfied (as is further demonstrated by the question certified when refusing leave to appeal, p.340).

R v Raven:

    The next case in time is Reg. v Raven [1982] Crim LR 51. I would not have thought it necessary to refer to this case at all but for the fact that Lord Steyn in his dissenting opinion in Luc Thiet, at pp.156 and 157, treated it as of critical significance: "If Raven was correctly decided, as I believe it was, it follows that the present appeal must succeed." It was a ruling of the Recorder of London during the trial of a man who had a physical age of 22 years but a mental age of only 9 years. He was being tried for murder. He did not give evidence but his defence was that he had been provoked by homosexual attacks upon him by the deceased. This was a clear case of diminished responsibility; his mental deficiency was not in dispute. A child of 9 years would not have been criminally responsible: the Children and Young Persons Act 1933 s. 50. His mental responsibility for his acts was indisputably substantially impaired. This was therefore just such a case as was visualised by the Law Reform Committee and Lord Simon. (See above.) Manslaughter could be the only realistic verdict.

    However, remarkably, by a route which is not explained in the short report, and which could not be explained by either counsel appearing before your Lordships on this appeal, the case was apparently thought to raise the issue whether the mental deficiency should be attributed to the "reasonable man". The Recorder held that it should. This was, according to the report, thought to be an application of the decision in Camplin. It was not. Camplin was concerned with an ordinary 15 year old and explained the reasonable man test in terms of ordinary powers of self-control. Raven was not an ordinary person. This case therefore was probably the first example of a jury being asked to visualise the chimera, an ordinary 22 year old with a mental age of 9. But this is not the end of the oddities of the report. There is no suggestion that there was any connection between Raven's mental deficiency and the provocation; it seems that it can only have affected his powers of self-control. Therefore on the authority of Newell the mental deficiency was immaterial to the defence under s. 3. The case note seems to have been written without any awareness of any of these features of the case being reported. The note seems to proceed from a desire to reject the reasoning and decision in Camplin and to be based upon the doubly mistaken belief that Camplin had created an "unhappy problem" which had in Raven received a "plausible solution".

Lord Taylor:

    Lord Lane was succeeded as Lord Chief Justice by Lord Taylor. Lord Taylor has also been cited as a supporter of the respondent's argument. It is relevant therefore to look at the judgments relied on to see whether this claim is correct.

    The first such case is Reg. v Ahluwalia [1992] 4 All E R 889. This was a case of a battered wife who had been convicted of the murder of her violent and abusive husband. At her trial she had raised the defence of provocation and the judge had directed the jury that they should consider whether, if she did lose her self-control, a reasonable person having the characteristics of a well educated married Asian woman living in this country would have lost her self-control in the face of her husband's provocation. On appeal it was submitted that he should have directed the jury to consider a reasonable person suffering from 'battered woman syndrome'. This ground of appeal was rejected as there had been no evidence that she had been suffering from that disorder. However, having considered fresh medical evidence placed before them, the Court of Appeal ordered a retrial on the basis that the new evidence showed an arguable case of diminished responsibility. The decision therefore raises no relevant problem.

The part of the judgment relating to "the defendant's characteristics" is based upon Camplin and Newell. Like Lord Lane, Lord Taylor quotes North J. He does so for the purpose of discussing point 1, what amounts to a characteristic. Lord Taylor was clearly not intending to qualify Camplin nor to question the decision and reasoning in Newell. At p.899, he upholds a simple direction in terms of the reasonable person. Neither the case nor the judgment supports the respondent's case on this appeal.

    Next in this sequence comes Reg. v Dryden [1995] 4 All E R 987. This was the case of the eccentric and obsessional householder who was trying to resist the lawful execution of a demolition order by local authority officers. He shot and killed one of them, attempted to kill the authority's solicitor and injured a policeman and a journalist. His defence to murder was diminished responsibility and provocation. There was evidence that he was at the time suffering from a depressive illness which amounted to an abnormality of the mind. The jury rejected the defences and convicted the defendant. The convictions were upheld on appeal.

    One of his grounds of appeal was that the jury had not been properly directed in relation to provocation. The judge had used words almost identical to those used by Judge Coombe in the present case. The defendant argued that he should also have directed them that the defendant's eccentricity and obsession were characteristics to be taken into account under Lord Diplock's formulation. Lord Taylor giving the judgment of the Court of Appeal rejected this argument holding that both Lord Diplock and Lord Simon had clearly indicated that "apart from the standard of self-control which is to be attributable to the reasonable man, other characteristics" should be taken into account. (p.997) He warned against the danger that, if one adds all the characteristics of the defendant to the notional reasonable man, the reasonable man becomes "reincarnated" in the defendant: the purpose of taking the reasonable man is to have a yardstick to measure the loss of self-control that will be permitted to found a defence of provocation. However, applying Newell, he held that the judge ought to have referred to the defendant's obsessions since they were relevant to the provocation. "It was in regard to his obsession with his property and this dispute that the conduct of bringing the excavator to the scene was the last straw in the build up of stress upon the [defendant]." (p.998) The evidence was admissible as satisfying points 1, 2 and 3. It was not admitted or relevant under point 4.

    This is confirmed by the Court of Appeal's second reason for dismissing the appeal: "We are satisfied that the jury here can only have come to one conclusion as to whether someone with the self-control of a reasonable man would have done what the [defendant] did even granted that this was a matter very close to his heart and a matter which had caused him anguish, worry and anger over a considerable period." (pp.998-9) Lord Taylor is making the distinction between the recognition of the aggravation of the provocation and the application of the ordinary standard of self-control. (See also the headnote to the same effect.) Dryden is therefore an authority against the respondent not in his favour.

    Next comes the judgment delivered by Lord Taylor in Reg. v Morhall in the Court of Appeal, [1993] 4 AER 888. This is relevant to demonstrating his view of the law even though the decision was reversed by the House of Lords, [1996] 1 AC 90. It will be remembered that Morhall was addicted to glue-sniffing and stabbed and killed a friend who took him to task over his addiction. The jury convicted him notwithstanding his putting forward various defences including diminished responsibility and provocation. The question on the appeal was what if any direction the judge should have given the jury on provocation having regard to the evidence of Morhall's addiction. The Court of Appeal held that the Judge had been right to exclude the addiction from the second question under s.3. It was "repugnant to the concept of the reasonable man" (p.892).

    Lord Taylor cited Camplin. He pointed out (p.891) that it was misleading to quote Lord Simon's incomplete quotation from s. 3: it does not refer to any characteristic of the defendant. He contrasted characteristics which were consistent with the general concept of a reasonable or ordinary person and those which were not, the former being relevant "if the provocation related to them". (p.892) In answering the question "where is the line to be drawn?", he like others before him again turned to North J. for assistance. The feature met the test of relevance to the provocation (point 2). "The provocation relied on was specifically targeted at the [defendant's] addiction to glue-sniffing. Accordingly, the question is starkly raised as to whether that addiction should have been left to the jury as a characteristic which they could take into account as affecting the gravity of the provocation to the [defendant]. [Counsel] contends that it should because, apart from the self-control of the reasonable man, all characteristics relevant to the provocation alleged must be left to the jury." (p.893)

    Therefore, Lord Taylor was accepting that characteristics cannot affect the question of the ordinary standard of self-control (point 4), accepting that the feature in question passed the test of relevance to the provocation (point 2), but rejecting the feature under point 3. It thus confirms Lord Taylor's disagreement with the respondent's argument here.

    Reg. v Humphreys [1995] 4 All E R 1008 is a case which was considered to fall on the other side of the line. But the judgment of the Court of Appeal given by Hirst L.J. was on the basis that a trait which connoted no more than that the defendant lacked the normal powers of self-control would not qualify, whereas one at which the provocative taunt relied upon as the trigger inevitably hit directly and was calculated strike a raw nerve would qualify. (p.1021-2) This again contradicts the respondent's submission on point 4.

    Finally in this sequence, after the House of Lords had decided Morhall, there is the judgment delivered by Lord Taylor in Reg. v Thornton No. 2 [1996] 2 All E R 1023. This was another battered wife case like that of Ahluwalia. There was fresh evidence of the defendant having had a personality disorder. The Court of Appeal in line with Morhall in the House of Lords considered that if the evidence had been available at the trial, the jury would have received a direction about its relevance. They ordered a retrial. The judgment does not purport to add anything to the previous authorities.

    The reported judgments of Lord Taylor therefore do not support the respondent's argument here but, rather, contradict it. There is no indication that Lord Taylor would decide point 4 in favour of the respondent, indeed the indications are the reverse.

Reg. v Morhall:

    The speech of Lord Goff was agreed to by all the other members of the Committee. The speech rejected the anthropomorphic approach. Lord Goff stressed that the second question was concerned with identifying "a standard of self-control". (p.98) The law was not concerned to invite the jury to consider a reasonable glue-sniffer. He discussed the law of New Zealand in the light of the later decision in McCarthy and the judgment of Cooke P. The thrust of the speech is that there are two aspects of provocation in relation to which a jury might attach significance to an abnormal trait of the defendant. The first, which is permissible, is relevance to the gravity of the provocation to the defendant (point 2). The second, which is not permissible, is relevance to the standard of self-control required by the law (point 4). The jury should have been directed about this (and had not been). The fact that the trait of the defendant is repugnant to the standard is irrelevant to the question of evaluating the gravity of the provocation.

    It is to be observed that this decision is a binding authority in English law. It distinguishes between matters going to the gravity of the provocation and the required standard of self-control. It is in line with the previous authorities but has moved away from treating the judgment of North J. as the place to find all the relevant answers.

Luc Thiet Thuan:

    This case raised the question whether a defendant who suffered from brain damage which was irrelevant to the provocation (point 2) but was relevant to his capacity for self-control could rely upon the brain damage in support of his case under the second question in s. 3. Nothing appears to have turned upon the fact that such lack of capacity would be relevant to answering the first, the factual, question whether he did in fact lose his self-control. The opinion delivered by Lord Goff contains nothing new save for a fuller discussion of the law of New Zealand and Australia, the inclusion of quotes from the article of Professor Ashworth [1976] CLJ 292 and an important passage explaining and emphasising the relevance of the defence of diminished responsibility introduced by s. 2 of the Act (p.1046).

    Thus the opinion recites what was decided in Camplin, setting the standard. It repeats the distinction between aggravation of the provocation and something which merely impairs the power of self-control. It stresses that the standard of self-control is that of the ordinary person. It points out that it is not open to the courts "either to discard the objective test or to interpret it in a manner inconsistent with the statute." (p.1039)

    The dissent of Lord Steyn postulates situations of greater or lesser emotional content where there is evidence that the defendant suffers from a mental condition which affects her capacity for self-control. This evidence is admissible to deciding upon the answer to be given to the first, the factual, question. He then goes on to postulate that the judge will give the jury a direction upon the second aspect of the second question which is artificial and confusing. This must be contrasted with the simple and easily understood direction that Judge Coombe gave the jury in the present case. The dissent dismisses the inclusion of s. 2 in the statute as an irrelevance, apparently on the ground that "the burden of establishing the defence is on the defendant who raises it"; "it is an optional defence." The reasoning specifically rejects the provisions of s. 2 as being those settled by the Legislature to deal with mental abnormality and asserts that there should be looser criteria. It pays no regard to the fact that the Royal Commission recommended that the 'reasonable man' test should be retained and the Legislature chose to do so but with the addition of the diminished responsibility defence. As regards the discussion of the previous authorities, it places wholly inappropriate reliance upon Raven. It does not refer to Newell. It misstates the decisions in the cases I have analysed as representing the view of Lord Taylor. It fails to give effect to what was decided by Camplin and Morhall.

    My Lords, as I have demonstrated, it is the majority opinion which is in accordance with the English authority not the dissent.

The Later Cases:

    There are two such case to which it is right to refer. The first is Reg. v Campbell [1997] CAR 199. The Court of Appeal ordered a re-trial to allow fresh evidence to be called to support a defence of diminished responsibility which had not been run at the trial because the evidence was not then available. On the hearing there was some argument about the direction on provocation which the judge had given to the jury at the trial which had occurred in 1985. He directed them that epilepsy was not a characteristic which they should take into account in determining whether the provocation was enough to make a reasonable man do as the defendant had done. 1985 was after Camplin and Newell but before Ahluwalia. It appears that the defendant argued that the direction, although it "faithfully reflected the law as it was then understood", was no longer correct because of later Court of Appeal decisions. Support for this view was apparently found in the dissent of Lord Steyn. There is no discussion of the authorities, simply the understandable statement that, on the assumption that the dissent accorded to English law as declared by the Court of Appeal, the Court of Appeal authorities must be followed until over-ruled by your Lordships' House. (pp.206-7)

    Next there is the unreported decision in Reg. v Parker (25 February 1997). The Recorder of Birmingham had held that the majority opinion in Luc Thiet was identical with English law and had excluded evidence that the defendant's capacity for self-control was abnormally reduced because he was an alcoholic with some damage to his left temporal lobe. Basing themselves on Raven and what Lord Steyn had said about it, the Court of Appeal preferred to follow the dissent rather than the majority opinion. It appears that Newell was not cited; if it had been it would have been appreciated that the Recorder was right.

The Court of Appeal:

    Finally, I come to the Court of Appeal's judgment in the present case. It is a carefully reasoned judgment but it inevitably does not reflect the same thoroughness of review that has been possible for your Lordships. The Court of Appeal were unable to find in s. 3 any support for the view of Judge Coombe. As I have sought to demonstrate, construed in its context, s. 3 is in truth only consistent with the prosecution case; put at its lowest it does not provide support for the respondent's case.

    As regards the case law, it appears that the relevant cases from Newell onwards were cited but the analysis they received seems to have been based upon what was said about them by Lord Steyn in Luc Thiet. The Court rejected the distinction between matters which may aggravate the provocation and the objective standard of self-control required by the law even though that distinction can be found not only in Luc Thiet but also in the relevant Court of Appeal authorities and Morhall and, indeed, is apparent in a quotation which they make from Lord Taylor in Dryden (p.23 of the transcript).

    Like the dissent in Luc Thiet, the correctness of the judgment of the Court of Appeal depends upon its having correctly analysed the Court of Appeal authorities. In my view it has not done so.


    The law, as provided in s. 3 of the Act of 1957 and held in the authorities down to Luc Thiet, establishes that the constituents of provocation are:

(a) The defendant must have been provoked (whether by things done or by things said or by both together) to lose his self-control and kill or do whatever other act is alleged to render him guilty of murder. (b) This is a factual question upon which all relevant evidence is admissible including any evidence which tends to support the conclusion that the defendant either may have or did not lose his self-control. (c) If the jury conclude that the defendant may have been provoked to lose his self-control and do as he did, the jury should, as an exercise of judgment, but taking into account all the evidence, form a view as to the gravity of the provocation for the defendant in all the circumstances. (d) Finally, the jury should decide whether in their opinion, having regard to the actual provocation (a and b above) and their view as to its gravity (c above), a person having ordinary powers of self-control would have done what the defendant did. If some elaboration of the word 'ordinary' is thought necessary, it should be along the lines advised by Lord Diplock and used by Judge Coombe in the present case. The phrase 'reasonable man' although used in the section is better avoided as not assisting the understanding of the criterion 'ordinary powers of self-control'. The word 'characteristics' should be avoided altogether in relation to (d). It is not used in the section. It is alien to the objective standard of ordinariness and experience has shown that it is a persistent source of confusion. Where relevant the age or gender of the defendant should be referred to since they are not factors which qualify the criterion of ordinariness. But language which qualifies or contradicts such ordinariness must be avoided. It is the standard of ordinary not an abnormal self-control that has to be used. It is the standard which conforms to what everyone is entitled to expect of their fellow citizens in society as it is.

    If the scheme which I have set out above is followed, there should be no difficulty in directing the jury using simple and clearly understandable language. No artificialities are involved and the contradictions involved in the approach contended for by the defendant are avoided. Judge Coombe did this successfully in the present case as have many judges before him. It does less than justice to juries to suggest that they are incapable of understanding directions as simple as the four which I have set out above. If, as will usually be the case where the defence rely upon a mental element, diminished responsibility is also raised, s.2 and the concept of abnormality of mind provides the judge with an opportunity, if he thinks it helpful, to make an illustrative point of contrast with the objective test in s. 3.

    It is not acceptable to leave the jury without definitive guidance as to the objective criterion to be applied. The function of the criminal law is to identify and define the relevant legal criteria. It is not proper to leave the decision to the essentially subjective judgment of the individual jurors who happen to be deciding the case. Such an approach is apt to lead to idiosyncratic and inconsistent decisions. The law must inform the accused, and the judge must direct the jury, what is the objective criterion which the jury are to apply in any exercise of judgment in deciding upon the guilt or innocence of the accused. Non-specific criteria also create difficulties for the conduct of criminal trials since they do not set the necessary parameters for the admission of evidence or the relevance of arguments. In fairness to those representing the respondent on this appeal, they have not submitted that a non-specific approach is permissible nor that it should be adopted.


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