Provocation as a defence to murder

Court of Appeal has considered two cases on provocation since the recent decision of the Privy Council in Attorney olley (CLW/05/24/03) (Police Professional, July 28, 2005, p.26) in which it was said the jury should evaluate the defendant’s standard of self-control, when provoked, by reference to the ordinary powers of self-control to be expected of a person of the same age and sex of the defendant.

In the first case, R. v. Faqir Mohammed (CLW/05/33/14), evidence of the defendant’s violent disposition had been admitted at his trial for murder and the judge had directed the jury as to provocation in accordance with R. v. Smith (Morgan) (CLW/00/30/6), which represented the law as it was understood to be before the decision in Holley. The court held that the change, or perceived change, in the law brought about by Holley would not have affected the outcome of the trial, because the objective yardstick against which the effect of provocation fell to be measured had become tighter. In other words, evidence of the defendant’s temperament (his alleged violent disposition) was not relevant to the standard of self-control that was to be expected of him, because that standard was to be assessed by reference to a person of the age and sex of the defendant having and exercising ordinary powers of self-control (and not by reference to the defendant himself).

In the second case, R. v. Van Dongen (CLW/05/34/7), the trial judge had rejected a request by the defence that he should direct the jury as to provocation. The Court of Appeal held that, on the particular facts, the judge had been wrong and the jury should have been directed to consider a defence of provocation. However, the court then went on to consider whether the absence of such a direction should automatically mean that the defendant’s conviction was unsafe and would have to be quashed. The court observed that, although it had to be cautious in drawing inferences or making findings about how the jury would have resolved issues which were never before them, it could not overlook the matter of justice for those concerned with the victim. Further, it could not overlook the requirements of a proportionate appellate system, which included that those who were surely and fairly shown to be guilty of murder, and who were so found by a jury, should not escape the consequence “on gossamer grounds”. Having examined the evidence, the court held that the unavoidable facts of the case and the necessary logic of the jury’s verdict ruled out any possibility of a miscarriage of justice. Therefore, the conviction was upheld.

CLW Comment

The significance of Faqir Mohammed is not so much in the court’s decision on the particular facts, but in its approach to the decision of Holley. Interestingly, the judgment recites that although “Holley is a decision of the Privy Council, and … Smith a decision of the House of Lords, neither side has suggested that the law of England and Wales is other than as set out in the majority opinion in … Holley and we have no difficulty in proceeding on that basis.” Therefore, notwithstanding the doubts about the status of Holley as a decision binding on the courts of England and Wales, it seems that the Court of Appeal considers that the view of the Privy Council is to be preferred.

Van Dongen is interesting for a different reason. The basis for the court’s decision that the judge should have directed the jury as to a possible defence of provocation was that, on the defendant’s own evidence (which none of the prosecution witnesses had been able to contradict with any assurance), there was at least some evidence that the defendant had been provoked by the victim. However, it is quite impossible to say that the verdict of the jury carries with it the necessary implication that they rejected the defendant’s evidence on this issue. Therefore, what the court was doing, in a thinly disguised manner, was exactly what it is forbidden from doing: saying that no reasonable jury could possibly have come to the conclusion that a reasonable man