The appeal against conviction for murder failed as the appellant was properly convicted according to the law in 1955 when she committed the offence. The trial judge correctly withdrew the issue of provocation from the jury.Appeal against a conviction for murder in 1955, on a referral from the Criminal Cases Review Commission. It was never in issue that the appellant ('E') had shot her boyfriend ('B'). There was evidence that B had previously been violent towards E. The last episode of violence had allegedly preceded E's miscarriage of their baby, which occurred two weeks prior to B's death. On the weekend in question E was angry that B had failed to return home and suspected him of having an affair. She observed the house where he was staying and then followed him to a pub where she shot him. E pleaded not guilty to murder and her defence team sought to argue that the proper verdict was one of guilty of manslaughter by reason of provocation as a result of B's earlier violence towards her. E gave evidence that she had intended to kill B. The Crown conducted the case on the basis that there could be no reliance on provocation where the killing was carried out intentionally. The trial judge made a ruling that there was insufficient evidence for the defence of provocation to be left to the jury and directed the jury accordingly. E was convicted of murder and sentenced to death. E's counsel submitted that: (i) the judge was wrong to withdraw the issue of provocation from the jury and that, applying the law as it was in 1955, there was evidence upon which a jury properly directed could have returned a verdict of manslaughter by provocation; and (ii) in the alternative, even if the judge's ruling was correct, the Court of Appeal should have regard to developments in the law of provocation since that date and applying such law, the issue of provocation should have been determined by the jury. The Crown contended that E's conviction was safe as it was properly decided on the basis of the law as it existed before fundamental changes were made by the Homicide Act 1957. In addition both E's counsel and the Crown sought to adduce fresh evidence before the Court of Appeal.HELD: (1) The substantive law of murder and provocation as applicable at the time of the trial had to be applied to the instant case, disregarding the changes brought about by the Act (R v Derek Bentley (2001) 1 Cr. App. R. 307). Where the common law had developed, the court could have regard to such developments in determining an appeal (Bentley). However the changes on which reliance was placed on E's behalf, as to the relevance of an accused's characteristics, were a consequence of the change in the substantive law and not merely the development of the pre-1957 common law. Thus the judge's ruling had to be examined by reference to the law as it was before the Act. (2) The basis of the judge's ruling was clear. It was expressly on the basis that there was no evidence upon which a jury could conclude that a reasonable person, provoked as E was, would have reacted as E had done. The judge was saying that the provocation could not pass the proportionate response test. He was in no sense ruling that, because E had admitted the killing was intentional, her guilt had to follow, as the Crown had submitted at trial. There would have been a clear issue of provocation if E had reacted immediately to a violent episode. There had to be a triggering event for "slow burn provocation". Everything alleged to have been done by B on the weekend in question was an omission rather than a positive act. It was wholly impossible to see any of the events of that weekend as a sufficient basis to conclude that E had been provoked in a way that justified the reduction of her sentence from murder to manslaughter. Something more was required than mere possessiveness and jealousy (Stingel v The Queen (1990) 171 CLR 312). An essential feature of provocation was a sudden and temporary loss of self-control, but B's last attack had taken place a fortnight before the killing. The judge was correct, on the law as it was at the relevant time, to withdraw the issue of provocation from the jury. (3) The Court of Appeal should not consider any fresh evidence. E was properly convicted of murder according to the law at the time she committed the offence. (4) (Obiter) It should be questioned whether an appeal brought so long after the event when E had chosen not to appeal at the time was a sensible use of the Court of Appeal's limited resources.Appeal dismissed.

[2003] EWCA Crim 3556

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