R v Doughty (1986) 83 Cr App R 319, CA
A man D killed his baby, and claimed he had been provoked by its constant crying. Quashing his conviction for murder and substituting a five-year sentence for manslaughter, Stocker LJ said the trial judge was bound by the plain words of the statute to leave this defence to the jury. Provocation need not be unlawful in itself, and a baby's crying was undoubtedly "things done".
Edwards v R [1973] 1 All ER 152, PC (Hong Kong)
A blackmailer A went to V's hotel room in the early hours, after making a series of telephone calls, and pressed V for payment. V responded by swearing at A and attacking him with a knife; A seized the knife from V and stabbed him nearly 30 times, killing him. Allowing A's appeal against his conviction for murder, and substituting manslaughter, the Privy Council said that while a blackmailer should expect a certain amount of retaliation, an attack with a knife was more than might reasonably have been expected and the question of provocation should have been put to the jury.
R v Smith (Morgan) [2000] 4 All ER 289, HL
A man D killed another man V in the course of an argument; he put forward a defence based on self-defence, diminished responsibility and provocation, but was convicted of murder. The Court of Appeal substituted a conviction for manslaughter, and said the judge had been wrong to tell the jury to ignore D's serious clinical depression (which might have reduced his powers of self-control) in considering whether an ordinary man would have acted in such a way. The House of Lords agreed, and rejected the reasoning of the majority in Luc. Under the 1957 Act, provocation is expressly a matter for the jury and the judge must not tell them to ignore anything they might consider relevant. It is for the jury to determine whether the provocation was enough to cause a reasonable (or ordinary) person, whatever they understand that term to mean, to behave as the defendant did.
The essence of provocation, as set out by Devlin J and approved by the Court of Criminal Appeal in R v Duffy [1949] 1 All ER 932, and modified by the Homicide Act 1957, is that some act or series of acts was done by the victim or another, aimed at the defendant or another, which would have caused in any reasonable person and did in fact cause in the defendant a sudden and temporary loss of self-control, rendering him so subject to passion as to make him for the moment not master of his mind.
R v Ibrams & Gregory (1981) 74 Cr App R 154, CA
Two men DD and a woman A had been bullied and terrorised by V over a period up to and including a particular Sunday, and had been unable to obtain police protection. On Wednesday DD and A planned to beat up V the following Sunday and break his arms and legs; this plan was duly carried out, and V died of his injuries. The trial judge withdrew the defence of provocation from the jury, there having been no evidence of any provocative behaviour during the week or at the time of V's death, and DD's conviction was upheld.
R v Thornton [1992] 1 All ER 306, CA
After several years of physical and mental cruelty D stabbed and killed her husband and was charged with murder. The trial judge directed the jury that the loss of self-control must have been sudden for provocation to be found, and that a response after D had "cooled down" could not give rise to this defence. D's conviction was upheld by the Court of Appeal. [A second appeal based on new evidence was subsequently allowed.]
R v Ahluwalia [1992] 4 All ER 889, CA
D had entered into an "arranged marriage" and had been very badly treated by her husband. He had been violent and abusive towards her; he had threatened to kill her and had once tried to run her down; and he had taunted her about his affair with another woman. One evening D poured petrol over his bed as he slept and set light to it. She was charged with murder, and claimed provocation. The Court of Appeal confirmed the rule, but stressed that "sudden" is not the same as "immediate". The rule does not mean as a matter of law that the response must invariably follow immediately upon the provocation, said Lord Taylor CJ, but the longer the delay and the stronger the evidence of deliberation the more likely it will be that the prosecution will be able to show there was no "sudden and temporary loss of self-control". [At a retrial, an alternative defence of diminished responsibility was successful.]
R v Baille [1995] 2 Cr App R 31, CA
A man V had been supplying drugs to D's sons, and made threats against one of them. The son told his father D, who lost his self control, got a gun and a razor from the attic, drove to V's house (stopping for petrol on the way), knocked on V's door, and killed him after a very brief exchange of words. Allowing D's appeal against his conviction for murder, and ordering a new trial, the Court of Appeal said that although D's behaviour strongly suggested planned retaliation rather than a loss of self-control, he was entitled to have the whole of the provocation put to the jury. The judge's direction had suggested that the threats were too remote and that the jury should consider only the words at V's house: that was a usurpation of the jury's role.
DPP v Camplin [1978] 2 All ER 168, HL
A boy D of 15 went with a man V in his fifties, who buggered him against his will and then taunted him; D responded by hitting V over the head with a heavy pan, killing him. D was charged with murder and claimed he had been provoked. Allowing his appeal against conviction, and substituting a verdict of manslaughter, the Court of Appeal distinguished Bedder on the grounds that impotence is an abnormal condition while age is not, and said the jury should have been directed to compare D's response with that of a reasonable 15-year-old. The House of Lords dismissed a further appeal by the Crown; since the Homicide Act 1957, said Lord Diplock, Bedder was no longer relevant. The "reasonable man" to be considered was an ordinary person of either sex, not exceptionally excitable or pugnacious, but possessed of such power of self-control as everyone was entitled to expect his fellow-citizens to exercise in today's society. Various dicta suggest that relevant factors might include age, sex, race, colour, ethnic origin, physical deformity or infirmity, impotence, a shameful incident in the past, an abscess on the cheek (where the provocation was a blow on the face), pregnancy or menstruation.
R v Holley [2005] UKPC 23 (Jersey)
A chronic alcoholic killed his girl-friend with an axe while under the influence of alcohol: he admitted the killing but claimed provocation. The Court of Appeal of Jersey allowed his appeal from his conviction for murder and substituted a verdict of manslaughter; the Attorney-General of Jersey appealed against this decision to the Privy Council (not in fact seeking to restore the original verdict, the defendant having already gone through two trials and two appeals, but to clarify the law). The appeal was heard by a Board of nine judges, all members of the House of Lords, and by 6 votes to 3 the Board disapproved the majority judgment of the House of Lords in Morgan Smith and reaffirmed the decision in Luc Thiet Thuan. Delivering the majority judgment, Lord Nicholls said the majority view in Morgan Smith was inconsistent with the clear language of the statute and was therefore erroneous. The partial defence of provocation involves two elements, one subjective and the other objective. In determining whether in fact the defendant was provoked, the jury should take into account all the relevant evidence, including evidence of any mental or other abnormality making it more or less likely that he lost his self-control. If the defendant was taunted on account of his intoxication, that may be a relevant matter for the jury to take into account when assessing the gravity of the taunt to the defendant. But in determining (in the language of s.3 of the Homicide Act 1957) "whether the provocation was enough to make a reasonable man do as he did" the jury must consider the effect of that provocation on a person of the same age and sex as the defendant, but with ordinary powers of self-control. In some cases (such as Morhall) that might mean a glue-sniffer with ordinary powers of self-control, but the jury should not at this point take into account any individual peculiarities such as mental abnormality (which can be more appropriately dealt with through a defence of diminished responsibility) or intoxication.
R v James, R v Karimi [2006] EWCA Crim 14
Dismissing two conjoined appeals by defendants convicted of murder, a five-judge Court of Appeal said it is the decision of the Privy Council in Holley, rather than that of the House of Lords in Morgan Smith, that is now to be followed as a correct statement of English law. Although in all normal circumstances the Court of Appeal is bound to follow a decision of the House of Lords (and is not bound to follow decisions of the Privy Council), the circumstances surrounding the decision in Holley were exceptional, and even the three members in the minority in that case had accepted that the majority decision settled the matter for England as well as for Jersey.
