|Judgments - Regina v. Smith (On Appeal From The Court of Appeal (Criminal Division))
The appellant founds upon the decision of the majority in Luc Thiet Thuan v. The Queen  A.C. 131. To criticise so recent a decision calls for hesitation as well as courage, but I have come to feel anxiety over the majority view in that case, at least so far as it may be thought to apply in England, in regard especially to three points. First, I am not persuaded that it sufficiently recognises that the decision in Camplin  A.C. 705 extends beyond the matter of the gravity of the provocation to the matter of self-control. I have already referred to the passage in Lord Diplock's speech at pp. 717-718 and I have already quoted the passage in the speech of Lord Simon of Glaisdale at p 727D . Secondly, while it is right to be cautious of finding assistance in the different terms of a different statute in a different jurisdiction, section 169 of the New Zealand statute was regarded by Lord Simon of Glaisdale as representing the law of England, and it has to be remembered that section 3 of the Act of 1957 is not seeking to define the whole law of provocation for England and Wales so that the case is not one of construing one statute by reference to another, but rather seeking guidance on the developing common law by reference to the attempt in New Zealand to enshrine it in statutory language. Furthermore, as I have already sought to explain, it is only the further part of the observations of North J. which may call for qualification. The earlier passage remains as a useful source of guidance. Thirdly, considerable weight appears to have been placed upon a view expressed by Professor A.J. Ashworth which is quoted at p. 104H-141A of the advice of the majority and which it is suggested may have influenced the decision in Camplin. But the idea that, as distinct from individual peculiarities which bear on the gravity of the provocation, individual peculiarities bearing on the accused's level of self-control should not be taken into account, commendable as that view may have been at the time when Professor Ashworth was writing, seems to me to be contrary to the decision which was taken in Camplin and which I have endeavoured to analyse already. Although the Court of Appeal are bound by their own line of authority and not required to make any choice between it and the decision in Luc, I am reassured by what appears to be a refusal of the Court of Appeal in Reg. v. Campbell  1 Cr.App.R 199 and Reg. v. Parker (unreported) 25 February 1997 to be moved to desert the position already established in English law.
I have had the opportunity of reading drafts of the speeches of my noble and learned friends Lord Slynn of Hadley and Lord Hoffmann. I agree with the views which they have expressed.
For the foregoing reasons I would dismiss the appeal.
Diminished responsibility and provocation are both partial defences to a charge of murder. They have the effect of reducing the offence to manslaughter. But there the similarity ends. Diminished responsibility is a statutory defence introduced into English law by section 2 of the Homicide Act 1957. It is available where at the time of the offence the defendant suffered from an abnormality of mind which substantially impaired his mental responsibility for his actions. The burden of establishing the defence rests upon the defendant. This is in accordance with the general principle that the prosecution does not have to prove that the defendant is mentally normal and legally responsible for his actions. By contrast provocation is a common law defence which was developed by the judges and has never been defined by statute, though it was modified by section 3 of the Homicide Act 1957. The defence is available where the defendant's intention to kill or cause grievous bodily harm "arises from sudden passion involving loss of self-control by reason of provocation" per Lord Goddard C.J. in Attorney-General for Ceylon v. Perera  A.C. 200, 206. It is available to persons of normal mental capacity, and accordingly there is no burden of proof on the defendant; the prosecution must establish the absence of provocation.
Although the defences are distinct, they may of course overlap, for a person with diminished responsibility may be provoked to lose his self-control and react in the same way as any one else. Accordingly, a jury may have to consider both defences, as they did in this case. But they are distinct defences nevertheless, for each has a necessary element which is absent from the other. The defence of diminished responsibility requires proof of diminished responsibility resulting from mental abnormality but not of provocation or loss of self-control. The defence of provocation requires disproof of loss of self-control induced by provocation but not of diminished responsibility or mental abnormality. Their underlying rationales are also very different. In the one case the jury are invited to say: "You can't really call it murder: the poor man wasn't fully responsible for his actions." The defence is the response of a civilised society to inadequacy. In the other, they are typically invited to say: "You can't really call it murder. It was at least partly the victim's fault. Any one of us might have reacted in the same way if we had been in the defendant's shoes." The defence is often described as a concession to human frailty.
But this is a reference to that human frailty to which we are all subject and of which the jury may be expected to take cognisance. It is not a reference to an infirmity peculiar to the accused, but to "that human infirmity which is so general and almost universal as to render it proper to make allowances for it" and "that loss of self-control which is natural to humanity": see the passage cited by my noble and learned friend Lord Hoffmann from the Second Report of the Criminal Law Commissioners of 1846.
My noble and learned friends Lord Hoffmann and Lord Hobhouse of Woodborough have analysed the history of the law of provocation and the authorities in detail, and I do not propose to traverse the ground again. But I would begin by recalling that while it is a necessary condition of the defence of provocation that the accused should have lost his self-control, this has never been sufficient. He must have been provoked to lose his self-control. In other words, it is not enough that he was temporarily not responsible for his actions; his loss of self-control must be attributable to something which is external to himself.
These requirements make up what has been described as the subjective element of the defence. But there is an additional requirement: the provocation must have been sufficient to cause a reasonable man to react in the same way. This is usually described as the objective element. In his monograph Provocation and Responsibility (1992) Dr. Horder explains why it is of central importance in the defence of provocation, but Professor Ashworth (in his influential article in (1976) 35 C.L.J. 292) was the first academic writer to emphasise the link between the objective element and the moral basis of the defence. It goes to the sufficiency of the provocation. Only killings in response to grave provocation merit extenuation.
The need to satisfy the objective element was insisted on long before the Act of 1957, but it had been restrictively interpreted in a way which sometimes unjustly, and even absurdly, deprived an accused of the defence. Section 3 of the Act was enacted to remedy this. It provides that "the question whether the provocation was enough to make a reasonable man do as he did shall be left to the jury" and that "in determining that question the jury shall take into account everything both done and said according to the effect which in their opinion it would have had upon a reasonable man."
As Lord Hoffmann observes, section 3 modified the law in two respects. First, if there was evidence on which the jury could properly find that the subjective element was satisfied, the question whether the objective element was satisfied must be left to the jury. Secondly, in determining that question, the jury must take into account "everything both said and done". Any rule of law, such the rule that words alone could not amount to provocation, was abolished. But some objective test of the sufficiency of the provocation was necessary if the requirement that the accused must have been provoked to lose his self-control was to be preserved. Otherwise, loss of self-control alone would be sufficient, for the accused could always say that he was provoked by something. Accordingly the objective element was retained and henceforth provided the sole test of the sufficiency of the provocation. There must be something said or done which the jury considers might provoke a reasonable man to react in the same way as the accused.
The expression "the reasonable man" has a long and respectable ancestry in the law, but its use in section 3 is an unhappy one: (see Reg. v. Camplin  A.C. 705, 716 where Lord Diplock referred to "this apparently inapt expression"). It is not intended to invoke the concept of reasonable conduct: it can never be reasonable to react to provocation by killing the person responsible. Nor by pleading provocation does the accused claim to have acted reasonably. His case is that he acted unreasonably but only because he was provoked. But while this may not be reasonable it may be understandable, for even normally reasonable people may lose their self-control and react unreasonably if sufficiently provoked. It is this very human characteristic which the defence acknowledges. In this context, therefore, "the reasonable man" simply means a person with ordinary powers of self-control. As Lord Goff of Chieveley explained in Reg. v. Morhall  A.C. 90, 98:
In Camplin  A.C. 705, 726 Lord Simon of Glaisdale stated that "the reasonable man" in section 3 means "a man of ordinary self-control," and Lord Diplock, at p. 717, said that it means:
In the present case Judge Coombe directed the jury in these terms. The Court of Appeal held that he was wrong to do so. There was evidence that the accused suffered from a depressive illness which reduced his powers of self-control. In these circumstances, the Court of Appeal ruled, he should have directed the jury that in his case "the reasonable man" meant a man with the powers of self-control of a person suffering from such an illness; ie. a person with less than normal powers of self-control.
My Lords, this approach requires the accused to be judged by his own reduced powers of self-control, eliminates the objective element altogether and removes the only standard external to the accused by which the jury may judge the sufficiency of the provocation relied on. By introducing a variable standard of self-control it subverts the moral basis of the defence, and is ultimately incompatible with a requirement that the accused must not only have lost his self-control but have been provoked to lose it; for if anything will do this requirement is illusory. It is also manifestly inconsistent with the terms of section 3. It makes it unnecessary for the jury to answer the question which section 3 requires to be left to them, viz. whether the provocation was enough to make a reasonable man do as the accused did. It becomes sufficient that it made the accused react as he did. It substitutes for the requirement that the jury shall take into account everything both done and said according to the effect which in their opinion it would have on a reasonable man a different requirement by reference to the effect which it actually had on the accused. These tests are in truth no tests at all.
It is also inconsistent with Lord Diplock's description of the reasonable man in Camplin  A.C. 705, for the reference to "his fellow citizens" (in the plural) is deliberately intended to generalise the test and is plainly not a reference to persons possessing the abnormally reduced powers of self-control of the accused. I respectfully disagree with Lord Hoffmann's reformulation of the objective test: whether the defendant's behaviour fell below the standard which should reasonably have been expected of him, at least if this is taken to mean a person having only his own reduced powers of self-control. This would be inconsistent with Lord Diplock's reference, at p. 717G, to "the degree of self-control to be expected of the ordinary person with whom the accused's conduct is to be compared." Moreover it is bound to confuse the jury, for the question is meaningless. How is the trial judge to answer the jury when they ask: "what powers of self-control is everyone entitled to expect from a person who, according to the medical evidence, has no powers of self-control?" Or more bafflingly still, "who has some undefined but less than normal powers of self-control"?
Lord Hobhouse has traced the development of the law since Camplin  A.C. 705 and convincingly demonstrated that the approach adopted by the Court of Appeal in the present case cannot be supported by authority. I agree with his analysis that the present position is the result of a combination of errors, among which must be numbered the New Zealand jurisprudence, a mistaken desire to use the defence of provocation to cater for those who are mentally inadequate when this is properly the province of the defence of diminished responsibility, an inaccurate citation of the concluding words of section 3 which omits the words "anything done or said", and an unjustified extrapolation from Lord Diplock's speech in Camplin.
The New Zealand legislation might have been understood as confirming the retention of the objective element. Unlike section 3 of the Act of 1957, section 169 of the Crimes Act 1961 of New Zealand did not merely modify certain aspects of the common law, but was a self-contained codification of the defence of provocation. It was obviously intended to, and probably did, reflect the law of England following the passage of the Act of 1957. It provided (inter alia) that:
This was clearly modelled on section 3 of the Act of 1957, but was a distinct improvement on its language, for by referring to "a person having the power of self-control of an ordinary person" the New Zealand legislature avoided the "apparently inapt" reference to the reasonable man. It was not, however, anticipating Lord Diplock's criticism of this expression in Camplin or Lord Goff's exposition of its meaning in this context in Morhall  A.C. 1. It was merely reproducing the language of the Criminal Code Act 1893 and the Crimes Act 1908 of New Zealand.
Both the Act of 1957 and the New Zealand statute require the sufficiency of the provocation to be determined by reference to the same external test, viz. the degree of self-control of an ordinary person. But this is the only objective element which is present. In all other respects the jury must take the accused as they find him, warts and all. When considering whether a person of ordinary self-control would have been provoked to react as the accused did, the jury must have regard to what Lord Simon in Camplin called "the entire factual situation." The question for the jury is whether a person of ordinary self-control would have reacted as the accused reacted if he were similarly placed, that is to say, having the history, experiences, background, features and attributes of the accused. This is a question of opinion on which the jury may bring their collective experience and good sense to bear without further evidence: see Camplin at pp. 716D, 720F-G, and 727G-H. Accordingly, I respectfully agree with Lord Hoffmann that the question is whether the defendant's behaviour fell below the standard which could reasonably be expected of him, but only if that is taken to mean of him exercising normal self-control.
Unhappily, the New Zealand statute used the word "characteristics", and proceeded to invest the hypothetical ordinary man with all "the characteristics of the offender" save for his power of self-control. In Camplin  A.C. 705 Lord Diplock used much the same language. In suggesting how the judge should direct the jury, he said, at p. 718:
My noble and learned friends Lord Hoffmann and Lord Clyde consider that Lord Diplock's reference to the age and sex of the accused was not meant to be exhaustive. I respectfully disagree. I think he included "sex" because he wished to emphasis that "the reasonable man" was not gender-specific; he was certainly not suggesting that women per se have less self-control than men. He included the word "age" because that was what the case was about. In relation to age, he acknowledged the "logical transition" involved, but proceeded to justify it: the law should not "require old heads upon young shoulders." As the High Court of Australia observed in Reg. v. Stingel (1990) 171 C.l.R. 312 this "may be justified on grounds other than compassion, since the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness." The jury can judge, from their own experience and good sense and without the assistance of expert evidence, whether the accused displayed the ordinary self-control of a person of his age. This approach is also justified by the rationale of the defence. The victim has only himself to blame if he expects a 15-year old to react to provocative words or conduct in the same way as an adult, and the law should not expect him to do so. But as Lord Goff said in Luc Thiet Thuan v. The Queen  A.C. 131, 140:
Unfortunately the use of the word "characteristics" (which does not appear at all in section 3 and was probably not intended to have any particular significance in the New Zealand statute) has diverted attention from the true nature of the inquiry. Judges have seized on it to distinguish between those attributes of the accused which can properly be said to be "characteristics" of his (with which the reasonable man must be invested) and his other attributes. They have distinguished between transient and permanent characteristics, between characteristics which are self-induced and those which are not, and between temperament and character on the one hand and mental illness on the other. It has finally led them to pose the certified question which asks in effect whether the jury should be directed that evidence which they must bear in mind when considering the gravity of the provocation should be disregarded when considering the requisite standard of self-control.
I think that the law has taken a wrong turning. It is time to restore a coherent and morally defensible role to the defence, and one which juries can understand. This can be achieved if it is recognised that the function of the "reasonable man" is merely to provide an external standard by which the sufficiency of the provocation to bring about the defendant's response to it can be judged. That depends on a combination of two things: the gravity of the provocation and the requisite standard of self-control. A direction that the jury should have regard to evidence when considering the one and disregard it when considering the other is simply baffling. Such a direction is obviously undesirable if it can be avoided; I do not believe that it can ever be necessary.
The first question the jury must consider is whether the accused was provoked by something, whether done or said, into losing his self control and reacting as he did. If he was, the next question is whether that something would or might have been sufficient to produce the like reaction in a person similarly placed but possessing the powers of self-control of an ordinary person. This does not require the jury to conjure up a picture of a hypothetical ordinary person or the judge to direct them which characteristics of the accused should be attributed to him and which should be disregarded. The question might perhaps be more easily answered if it were reformulated: would or might the provocation have produced the like reaction from the accused if he had exercised normal powers of self-control.
In my view it is confusing and unnecessary to direct the jury to have regard to evidence when considering the gravity of the offence and to disregard it when considering the requisite standard of self-control. It is confusing because they are two sides of the same coin. As Dr. Horder observes, the function of the objective element is to identify provocation which is sufficiently grave to provide a moral warrant for the defendant's conduct. I think that it is also unnecessary. If the accused was taunted with (say) impotence, evidence of his impotence is relevant and admissible. It goes to the gravity of the provocation. But impotence does not affect a person's powers of self-control. The jury do not need to be told to disregard it when considering whether the objective element of the defence is satisfied. They can simply be reminded of the question and invited to consider whether a person in the situation in which the accused found himself, being impotent and being taunted with his impotence, but being possessed of normal powers of self-control, would or might react in the same way.
The position not in reality different where the accused was taunted with the very disability which had the effect of reducing his powers of self-control. In practice this is very unlikely to happen except in cases of obvious and self-induced disability like alcoholism, drug addiction or glue-sniffing. Your Lordships dealt with this situation in Reg. v. Morhall  A.C. 90. Where, as in that case, the words which are said to constitute provocation were directed to the defendant's addiction, the jury should be directed to take it into account in considering whether a person with the ordinary person's power of self-control would react to the provocation as the accused did. While the addiction itself is relevant if the offensive words are directed to it, any effect of the addiction in reducing the defendant's powers of self-control is not. This does not require the judge to direct the jury to have regard to evidence for one purpose and disregard it for another. The jury must take account of the evidence that the accused was an addict, for that is part of the factual situation. But expert evidence that addiction may operate to reduce the addict's powers of self-control cannot be relevant to the question whether the accused exercised ordinary self-control.
The same applies to intoxication. This is not, in my opinion, because drunkenness is transient or self-induced, nor is it because it is in any way out of the ordinary, for as Lord Goff observed in Morhall at p. 99 ordinary people sometimes have too much to drink. It is because the degree of self-control which the accused was capable of exercising when under the influence of drink is irrelevant to the question whether he exercised the requisite degree of self-control.
Addiction and chronic alcoholism are not transient states. The addict and the chronic alcoholic need treatment. They cannot cure themselves. While under the influence of drugs or drink they may be incapable of displaying ordinary powers of self-control. Yet this is no defence. Likewise a person's powers of self-control are affected by his personality and temperament. A man cannot help his personality or temperament any more than an addict can help his addiction. It is no use telling a bad-tempered man that he must control his temper. His temperament and personality are innate, not self-induced. Yet the defence of provocation is not available to the short-tempered or unusually excitable in circumstances where it would not be available to the even-tempered. In all these cases the jury must be satisfied that the provocation was sufficient to have caused a person with ordinary powers of self-control (which ex hypothesi the accused himself did not possess) to react as he did. I cannot see that it makes any difference that the defendant's inability to exercise an ordinary degree of self-control proceeds from depressive illness rather than chronic alcoholism or bad temper. This may seem hard, even unmerciful. But persons who cannot help what they do are intended to be catered for by the defence of diminished responsibility. The defence of provocation should be reserved for those who can and should control themselves, but who make an understandable and (partially) excusable response if sufficiently provoked.
Lord Hobhouse has convincingly demonstrated that the approach of the Court of Appeal in the present case is inconsistent with the English authorities and an understanding of the law shared by three successive Lord Chief Justices, Lord Parker, Lord Lane and Lord Taylor C.JJ. We cannot adopt it without departing from Reg. v. Morhall  A.C. 90, a unanimous decision of your Lordships' House not yet five years old, and without preferring Lord Steyn's dissenting opinion in Luc Thiet Thuan  A.C. 131 to that of the majority.
Lord Steyn's dissenting opinion in the last-mentioned case is, as might be expected, extremely powerful, invoking as it does the pre-eminence of the dictates of justice over the promptings of legal logic. He instances three situations. The first is the woman suffering from post-natal depression. The second is the "battered wife". The third is the woman suffering from a personality disorder which makes her unusually prone to lose her self-control. In all three cases, Lord Steyn observes, the particular characteristic of the accused is potentially relevant only inasmuch as it affected the degree of self-control which she was capable of exercising.
With respect, I do not think that the case of the battered wife is affected by the issue in the present case. It is true that the treatment she received from her husband is only relevant insofar as it gradually wore down the natural inhibitions which would normally prevent her from resorting to violence. But, except from the fact that it usually produces a sudden and immediate reaction, that is how provocation works. It is a disinhibitor which overrides a person's natural inhibitions and causes him to lose his self-control.