Practice and Procedure


PUBLISHED March 27, 2003

The judge's direction on provocation did not remove obsessiveness and jealousy, as the particular characteristics upon which the defendant had been seeking to rely, from the jury's consideration.Appeal by the defendant ('D') against his conviction for murder at Bristol Crown Court. The sole issue for the jury at the trial was whether D had been guilty of murder as charged or manslaughter by reason of provocation. There were two elements to a defence of provocation: (i) whether the defendant had lost self-control; and (ii) whether the defendant ought reasonably to have controlled himself. On appeal, D submitted that, in considering whether he should reasonably have controlled himself, the judge had not directed the jury that they could take his jealousy and possessiveness into account. The issue involved consideration of how a jury was to be directed on provocation following the House of Lords decision in R v Morgan James Smith (2000) (2001) AC 146.HELD : (1) The question of whether the defendant ought to have controlled himself was to be answered by the jury taking all matters into account. That included matters relating to the defendant, the kind of man he was and his mental state as well as the circumstances in which the death occurred. The judge should not tell the jury that they should, as a matter of law, ignore any aspect. He could give them some guidance as to the weight to be given to some aspects, provided he made it clear that the question was one which, as the law provided, they were to answer, and not him. (2) This approach made it unnecessary to determine whether characteristics of the accused ought or ought not to be taken into account and avoided categorising human defects into one category or the other. (3) The judge's direction did not remove obsessiveness and jealousy from the jury's consideration. Having emphasised those features when dealing with the first element, the judge advised the jury to take into account "all the circumstances" and decide the question by applying the standard of "what society expected of a man like this defendant in his position". That direction left the particular characteristics, upon which D had been seeking to rely, open for the jury's consideration. (4) A specific mention coupled with a comment that the jury might have thought that such characteristics constituted defects of character rather than an excuse for killing could be seen as far less favourable to D than the direction which had actually been given. (5) Although in the repeat direction the judge had omitted what she had said about "what society expected of a man like this defendant in his position", the two directions had to be taken together. The nature of the provocation and D's characteristics ought to have been at the forefront of the jury's considerations. (6) (Obiter) Characteristics such as jealousy remained with the jury as matters which fell for consideration in connection with the second objective element of provocation and s.3 Homicide Act 1957. The jury ought not to be directed that they should take no account of them and it was essential that it was made clear that such matters might form part of their deliberations. (7) (Obiter) There were advantages in giving the direction to the jury in writing as it was asking a lot of a jury to absorb the direction as they listened to it and carried it in their minds with them into the jury room.Appeal dismissed.

[2003] EWCA Crim 815