Her Majesty’s Attorney-General for Jersey v Dennis Peter Holley – Law Essay
In Her Majesty’s Attorney-General for Jersey v Dennis Peter Holley [2005] UKPC 23 Lord Nicholls of Birkenhead said: “…their Lordships regretfully but firmly consider the majority view expressed in the Morgan-Smith case is erroneous.”
Discuss.
Holley and Morgan-Smith are just two of several recent cases which have presented to their respective courts with the partial defence to murder, provocation; a doctrine which it is suggested was never truly coherent, logical or consistent. It may be possible to trace the concept of provocation back to the 13th century where juries would consider cases involving a ‘provoked intentional killing in hot blood’ more leniently. However, this discussion will focus on the development of the defence as it has progressed from its statutory footing in the 1957 Homicide Act to the current day and the decision by the House of Lords in Holley. Reference will also be made to older cases following the emergence of the doctrine in 18th century common law and considerations will be made of proposals for reform.
Murder is regarded as the most serious of crimes and is unique in that the sentence is fixed by law. In current times this sentence is life imprisonment but until the enactment of the Murder (Abolition of Death Penalty) Act in 1965 , the offence of murder was punishable by death. Still possible with some offences till 1957. It was owing to this mandatory sentence and the law’s compassion to human infirmity that the common law partial defence of provocation came about. A successful defence of provocation may reduce the charge to manslaughter thereby allowing for mitigation of sentences.
The common law defence is now governed by S3 of the Homicide Act 1957 (1957 Act) which states:
‘When 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 done and said according to the effect which, in their opinion it would have on a reasonable man’
The section distinguishes two questions, one subjective and one objective both to be answered in considering the defence:
Was the defendant provoked into losing his self-control?
Was the provocation sufficient to make a reasonable man act as the defendant did?
The second (objective) question is the crux of this discussion but it is necessary to highlight the development of the subjective limb first.
The defendant must have been provoked, it is not sufficient that he lost his self-control if there is no specific provocative act. In Acott(1997) D had killed his mother, evidence suggested that the attack was frenzied and D had lost his self-control, however the House of Lords held that this was not sufficient for a defence of provocation if there was no evidence of such an act.
Having shown that there was a provocative act the subjective question requires that the jury consider ‘whether the provocation was grave enough to warrant a reduction of the crime from murder to manslaughter’ and unavoidably looks at the conduct of the deceased, made clear by Steyn.L in Acott that a jury cannot determine the objective limb without ‘evidence of the nature of the provocation’.
This evidence must show that the provocative act was something done and/or said. Circumstances alone cannot amount to provocation, ‘A loss of self-control caused by fear, panic, sheer bad temper or circumstances (e.g. a slow down of traffic due to snow) would not be enough.’ The provocation need not be unlawful, for example; the planning officer exercising his official duties, a 3 week old baby, who was cried constantly, which it is assumed, albeit disparagingly was a ‘thing done’. It is questioned that if theoretically a dog barking can be as provocative as a baby crying, does the provocation need to stem from a human being?
The common law as laid out in Duffy(1949) restricted the scope of the defence to acts done by the deceased to the defendant. The 1957 Act impliedly overruled this restriction in that the words or conduct amounting to provocation need not come directly from the deceased. It is also understood that the definition of S3 also enables the defence to be put forward in situations where the provocation was aimed at a third party. This is deemed significant by academics particularly in domestic abuse cases.
Loss of self-control was defined by Devlin .J in what is described as a ‘classic direction’; common law required that D had a ‘sudden and temporary loss of self-control.’ S3 has not changed the ‘loss of self-control’ requirement nevertheless it has been at the root of several quandaries since 1957. It is not vital that the defendant has a complete loss of self-control, Taylor LCJ in Richens[1994] stated “It is not essential that he should not know what he is doing: all that is required is that he should not be able to control what he is doing.” indeed if D did not know what he was doing this would effectively negate the mens rea element of murder and subsequently D could not be found guilty. More here???
The subjective element attempts to differentiate between provoked killings which have an intrinsic ‘element of involuntariness’ and killings although provoked, have prompted ‘a desire for revenge’. This need to distinguish between the two has brought the ‘sudden and temporary’ aspect into focus. In Duffy Devlin.J explained this aspect in saying.
[T]he further removed an incident is from the crime, the less it counts … circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden, temporary loss of self-control which is of the essence of provocation
Although not a statutory requirement that the courts follow this rule, on several occasions in cases subsequent to the 1957 Act it has been an fundamental part of the defence. In Ibrams(1982) where a planned attack had taken place several days after the provocation the court held there was no evidence of sudden and temporary loss of self control. It has however been argued that this rule is inappropriate and discriminatory in cases of domestic killings, where women who have been subject to systematic and long term abuse have a delayed ‘slow-burn’ reaction and their anger erupts when the fear of danger has subsided for instance, when their abuser is asleep . In Ahluwalia[1993] a case illustrating this point, the court held that the subjective element of the defence is not negated purely because of a delayed reaction, though emphasising that at the time of the killing there must have been a “sudden and temporary loss of self-control” caused by the alleged provocation. Summarise
As mentioned earlier, the second, objective question is the focus of this discussion. The question was introduced as a means of setting an objective standard against which D’s actions can be gauged. Whereas the subjective question is a matter of fact; was D provoked into losing control? The objective element is entirely a matter for the jury.
The question requires the jury assess the ‘seriousness of the provocation … whether the provocation was grave enough to warrant a reduction of the crime from murder to manslaughter.’ To answer the question in the affirmative the jury must be satisfied that the ‘reasonable man’ would have lost control and acted as D did. The reasonable man first made his appearance in criminal law in Welsh(1869) when Keeting J referred to provocation as “something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act”. This ‘test’ has a particularly problematic to the courts, the issue arising being whether the reasonable man test when being considered by the jury should be attributed with any of D’s characteristics.
Prior to the 1957 Act the courts took an entirely objective view in respect of the reasonable man, taking it upon themselves to instruct the jury on what characteristics the reasonable man may or may not be attributed. In Lesbini(1914) D was deemed mentally deficient and imbalanced yet the jury still had to consider what effect the provocation had on the ordinary man, and as shown by Smith(1915) the hypothetical ordinary man had to be ‘normal in body and mind’ . This objective approach continued throughout the 20th century. Bedder[1954] is one particularly crass example of this.
Bedder was a man of 18 who had killed a prostitute after she had taunted him about his sexual impotence. The jury were instructed to disregard the impotence when applying the reasonable man test, effectively this meant the jury had to consider the effect of the victims taunts on a potent man. On appeal to the House of Lords this direction was upheld, Simmonds LCJ, supported their decision by stating that ‘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.’
The introduction of the 1957 Act brought about several changes to the law. The judge had no powers to withhold the defence from the jury even if he thought that there was n. ………….. ……………fill in … …………. ………….. The 1957 Act made clear that provocation may be by a thing said, this expressly overruled the House of Lords’ decision in Holmes[1946] where it was held that except in the most extreme circumstances words could not amount to provocation. This change is significant when considering what characteristics can be attributed to the reasonable man. In The House of Lords in Camplin[1978] , using a racial slur as a prime example, Simon L. noted that
‘The effect of an insult will often depend entirely on a characteristic of the person to whom the insult is directed. ‘Dirty nigger’ would probably mean little if said to a white man or even if said by one coloured man to another’
Although laid out in the 1957 Act it wasn’t until over twenty years later that The House of Lords in Camplin marked the turning point in the law and particularly the problems of instilling D’s characteristics on the reasonable man. The House were greatly influenced Camplin was a boy of 15 who killed V, a man who it was claimed buggered D against his will them laughed at him. The House