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The law of provocation is in a mess. Didn’t their Lordships know the A level law exams are next week?

Sunday 19 June 2005 at 9:30 am | In News | Post Comment

The Privy Council believes Parliament should sort out provocation (together with all the law of homicide) as soon as possible; the courts can do no more with it, it is now up to Parliament. Within less than 4 years, they have pronounced R v Smith (Morgan) [2001] HL to be wrong, in the case of R v Holley.  (Jersey v Holley [2005])

This means that women suffering from Battered Woman Syndrome may satisfy the first test in Section 2 Homicide Act 1957, but not the second objective test and so appear to be back in the position they were before Morgan Smith and have to rely on diminished responsibility. In fact, their Lordships urged courts to read together these two defences to obtain an overall, balanced view of the law in this field.

In applying the second ‘objective test’ we are advised to no longer use the term ‘characteristics’ of a defendant, but to rigorously apply a uniform objective standard of the degree of self-control to be expected of an ordinary person, to be judged by one standard, not a standard which varies from defendant to defendant.

The reasonable man described in Luc Thiet Thuan, Camplin and Morhall are to be applied to all defendants. The jury are required to judge the defendant’s loss of self-control by reference to the standard of the degree of self-control to be expected of an ordinary person of the defendant’s age and sex, and not a defendant with the ‘abnormalities’ of the accused.

The Board stated that in adopting the formulation of Sec 3 Homicide Act 1957 Parliament recognised the potential hardship to defendants suffering mental abnormality and had enacted the defence of diminished responsibility in s 2.

Luc Thiet Thuan v The Queen [1997] . R v Camplin [1978] and R v Morhall [1996] are to be considered the correct test for the “objective test”

Jersey v Holley [2005] PC
[Provocation – objective test limited to reasonable man test including age and sex of D. Statutory interpretation – literal approach adopted]
D killed his girlfriend with an axe. He was an alcoholic (as was she). She told him she had just had sex with another man. He picked up the axe, intending to leave the flat and chop wood, when the deceased said, “You haven’t got the guts” he hit her with the axe seven or 8 times. He pleaded provocation.

Held: D’s alcoholism should not have been taken into account.
Subjective element:
The jury are required to assess the gravity of the provocation by reference to the defendant’s individual characteristics in deciding if he lost self-control.
Objective element:
The jury are required to apply a uniform, objective standard of the degree of self-control to be expected of an ordinary person of the defendant’s sex and age when judging whether his loss of self-control was sufficient to satisfy the defence.

Not guilty of murder for other reasons

Comment: Morgan Smith cannot now be considered correct on this point. Whilst the advice of the Privy Council is said to be only persuasive this was a judgment of nine Law Lords sitting as the Privy Council. It is extremely rare that so many judges sit unless the case if of massive importance. This ruling can be seen as binding.