Provocation as a defence to murder

In Attorney General of Jersey v. Holley (CLW/05/24/03) it was held that, although the gravity of provocation to the defendant and whether he had lost his self-control as a result are to be evaluated by the jury by reference to how they find him (“warts and all”), the standard of self-control by which they are to judge his conduct is the external standard of a person having and exercising the ordinary powers of self-control to be expected of a person of the defendant’s age and sex.

The majority ruling of the House of Lords in R v. Smith (Morgan) (CLW/00/30/6), was said to be wrong in that the Homicide Act 1957, s.3, adopted a uniform, objective standard. The approach in Smith had been to leave the jury to decide whether, in the light of all circumstances, they considered the loss of self-control to be sufficiently excusable. However, that left each jury free to set whatever standard they considered appropriate. The proper approach was to decide whether the provocative act or words and the defendant’s response met the “ordinary person” standard prescribed by the statute.

It followed that if the defendant had, for example, been taunted by reference to his being an alcoholic or a drug addict, his alcoholism or addiction might be relevant to the jury’s consideration of the gravity of the taunt, but it would not be relevant to the question whether he exercised ordinary self-control.

CLW Comment

The case was a decision of the Privy Council originating in Jersey and, as such, even though it is welcome re-affirmation of the law as it was understood to be before Smith, and as it is plainly set out in the Act of 1957, its status as an authority binding the courts of England and Wales is open to question.

The majority opinion (6:3) declares that the appeal, having been heard by an enlarged board, was concerned to resolve the conflict between Smith and previous authority “and clarify definitively the present state of English law”.

However, it is well-known that where there is conflict between a decision of the Court of Appeal and a decision of the Privy Council, the Court of Appeal and lower courts are bound by the Court of Appeal decision. Moreover, whilst lower courts are not bound by decisions of the Privy Council, they certainly are bound by decisions of the House of Lords, and it has never been suggested that the Privy Council has power to overrule a decision of the House of Lords.

The decision in the instant case is calculated to leaves judges at first instance in a dilemma. Should the rules of precedent be ignored and the instant case followed, with the consoling thought that it accurately reflects the statute and previous authority (i.e. pre-Smith) at the highest level? Such a course might open up the possibility of a prosecution appeal against an evidentiary ruling under the Criminal Justice Act 2003, Pt. 9. Alternatively, should a ruling be given in a preparatory hearing that is loyal to the House of Lords, leaving it open to the defendant to pursue the point in the Court of Appeal and House of Lords on an interlocutory appeal? Either way, as and when the issue reappears before the House of Lords, with the current line-up of law lords, the odds seem weighted against a pro-Smith majority.