England and Wales Court of Appeal (Criminal Division) Decisions

IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
REFERENCE BY THE CRIMINAL CASES REVIEW COMMISSION

		Royal Courts of Justice Strand, London, WC2A 2LL
		8th December 2003

Lord Justice Kay:
1. On 21 June 1955 following a trial at the Central Criminal Court that lasted for 2 days, Ruth Ellis was convicted of the murder of David Blakely. She was sentenced to death. She did not appeal against her conviction. The death sentence was carried out on 13 July 1955 and she was, as a result, the last woman to be hanged in the United Kingdom. At the time the case attracted considerable publicity and the decision by the then Secretary of State not to reprieve her was one with which many people disagreed. In the debate that was then raging about the use of the death penalty, the carrying out of the death penalty upon her was almost certainly one factor that influenced thinking on the issue.
2. This case is not, however, in any way about the decision as to whether she should have been executed but raises the more fundamental question whether she should have been convicted of the offence of murder in the first place. Following her execution and for the many years thereafter, members of her family campaigned about the injustice that they perceived had befallen her. In due course the case was referred to the Criminal Cases Review Commission ("the CCRC"). By a decision dated 21 February 2002, the CCRC concluded that there was a real possibility that the conviction would not be upheld if a reference was made to the Court of Appeal and accordingly, despite the fact that there had been no appeal at the time or since, made such a reference. This is, therefore, the first opportunity that the Court of Appeal has had to consider the conviction.
3. It was never in issue that Mrs Ellis had shot Mr Blakely. Indeed her statement under caution made to the police soon after the shooting included within its first few words Mrs Ellis saying "I am guilty". It seems from other documents that we have seen that she probably considered herself to be guilty of murder and a letter written to the victim's mother at the time rather confirms that that was her thinking. However at trial she pleaded not guilty and her very experienced defence team sought to persuade the jury that the proper verdict was one of guilty of manslaughter by reason of provocation rather than guilty of murder. A ruling made by the trial judge, Mr Justice Havers, before closing speeches were made to the jury, effectively rendered that argument an impossible one to maintain. As a result, Mr Melford Stevenson QC, who was leading counsel for the defence, considered that he could no longer address the jury and invite them to acquit of murder. He, therefore, made no closing speech and the jury after hearing the judge's summing up, which confirmed his earlier ruling, convicted Mrs Ellis of murder in under a quarter of an hour.
4. The appeal with which the court is now concerned primarily focuses on the ruling of the judge about provocation and the consequent directions to the jury. A further point was taken in the grounds suggesting that, not withstanding that the statutory defence of diminished responsibility had not been created at the date of trial, the court can still conclude that factors that might today have permitted such a defence to succeed, render the conviction in 1955 unsafe.
5. At this stage we should perhaps set out in some detail the evidence at trial, very little of which was disputed.

Facts

6. Mrs Ellis was 28 years old. She was a married woman, who had separated from her husband and had 2 children. The deceased, Mr Blakeley, was aged 25. He had only worked intermittently and spent most of his time racing motorcars and building cars. The couple met in the middle of 1953 and a friendship developed between them. At that time the deceased was engaged to another woman.
7. Shortly after their meeting, Mrs Ellis became the manageress of a small club in Knightsbridge. She had a small flat above the club where she lived with her son, her daughter living with her ex-husband. The deceased moved into her flat almost immediately, living there from Monday to Friday. Mrs Ellis told the jury that he was very concerned about her and seemed very devoted to her. She was asked if she was "very much in love with him then" and she replied that she was not really.
8. In December 1953, Mrs Ellis realised that she was pregnant. The deceased offered to marry her but because she was not really in love with him and thought that it was unnecessary to marry him, she decided instead to terminate the pregnancy and an abortion was carried out in February 1954.
9. They carried on seeing each other until the following June. Mrs Ellis said that at this time she "did not take the affair seriously" and she explained that the deceased was still engaged to the other girl and it was not until he broke off his engagement that she thought their relationship was serious. She said that she "gave him an inkling" that she wanted to break off their relationship, telling him that it was not good for the business which she was running that she was living with him. She said that he did not like it all when she said this.
10. In the middle of 1954, she met another man called Desmond Cussen, who was a member of the club. In the June, the deceased went away for 2 weeks to Le Mans to race his motorcar and Mrs Ellis began an affair with Desmond Cussen. She believed that this would bring to an end her relationship with the deceased but on his return he came to see her and she did not tell him about her affair with Cussen. She said that he was getting "rather jealous" by this stage and wanted to know what she had been doing. She added "but, of course I did not tell him". Their relationship resumed.
11. Shortly after his return, he asked her to marry him. He told her that he had broken off his engagement to the other girl. Her husband had started divorce proceedings against her and she decided not to contest these so that she could marry the deceased.
12. After he had asked her to marry him, she said that he became very possessive and jealous but he seemed devoted to her. She did not altogether trust him because one night he stayed away and returned with love bites on his back. She asked him to leave and he did. The next day he came to the club and apologised, saying that he loved her.
13. They resumed their relationship but he started causing trouble in the club, objecting to her working there. She was having to give him money all the time and was paying for all his drinks in the club.
14. By October 1954, he had become violent towards her on occasions. She said that it was always because of jealousy in the bar. He would hit her with his fists and she was bruised on many occasions. She made numerous efforts to end the relationship. She described herself as having begun to "feel ill with it all".
15. Eventually, in the December, she moved out of her flat and into Mr Cussen's home. She said that she thought that this would be one way of breaking off her affair with the deceased. She had not resumed her sexual relationship with Mr Cussen. However she found it impossible to avoid the deceased because he would appear at her club. Sometimes she went with him to a hotel for the night, which she explained was "because I was in love with him". She said that they were still on close affectionate terms but they would quarrel and they still had fights, in which he would hit her.
16. In February 1955, there was an incident at Cussen's home, when the deceased visited her whilst Cussen was away. They had been out drinking together and had both had a lot to drink. He had driven her home but did not want to leave her. There was a fight and as she put it this time "I had really been hurt". She had sprained her ankle and was badly bruised. He sent her flowers and apologised. As a result they made up their quarrel.
17. The two again rented a room together, but Mrs Ellis suspected that the deceased was having an affair. She began to follow him. By this time she too had become jealous and anxious. After spending a night outside another woman's home, she saw him coming out in the morning. She told him that they were finished and he moved out. However, a week later he came back and they resumed living together.
18. In March, Mrs Ellis found that she was pregnant. The deceased was initially happy about it and wanted her to have the baby. However at the end of March he was again violent to her and on this occasion punched her in the stomach. A few days later she miscarried although she said that she was not sure if this had been caused by his violence.
19. In spite of her recent miscarriage, on 1 April, Mrs Ellis went to watch the deceased race at Alton Park. When his car blew up before the race, he blamed her.
20. The week before the killing was noteworthy in that Mrs Ellis had become ill following the miscarriage and was bedridden for much of the week. The deceased was kind and appeared devoted. The couple planned to spend the Easter weekend together. On the Good Friday, the deceased left the flat that they shared in the morning, promising to return at 8 pm to take her out for a drink with racing colleagues, the Findlaters. However he did not return.
21. Eventually she telephoned the Findlaters to enquire as to his whereabouts. Anthony Findlater told her that the deceased was not at his home. As the evening wore on Mrs Ellis began to suspect that the deceased was indeed at the Findlaters. She asked Mr Cussen to drive her to Hampstead. Outside the Findlaters house she saw the deceased's car. First she rang the doorbell and when no one answered she went to the nearest telephone box. Whoever answered the telephone put the receiver down on her. She said that she was "absolutely furious" with the deceased and that she wanted to see him and ask for his keys back. Mrs Ellis kept telephoning and could hear a female giggle in the background.
22. She responded to the situation by pushing in the windows of the deceased's car. The police were called and on their advice, she left.
23. She described to the jury how that night she did not sleep. She was "still in a temper" and she was very upset and not well. The next day she went back to the Findlaters' house. She said that by this time, she was "behaving just like a typical jealous woman". She stood in the doorway to a house opposite watching their front door. She was invited into the house, which was for sale, and whilst the occupier made her tea, she sat and watched the Findlaters' house and saw the deceased enter the building with the Findlaters.
24. She went home but remained obsessed by his absence and the unexplained change in his behaviour. She decided to go back again. She stood in the street listening to the noise inside the house, gaining the impression that there was a party going on. She waited outside until she saw the deceased leave the house, putting his arm around a young woman, whom she presumed was the Findlaters' nanny. She left the area for a short while, returning again just after midnight to find that they had all returned and the lights were off. By now she was persuaded that the deceased might be having an affair with somebody else. She finally returned home.
25. She told the jury that she was very upset. At 9 am on the Sunday morning, 10 April 1955, she telephoned the Findlaters again. She thought that if the deceased was sleeping alone in the lounge, he would be the one to answer the telephone so that the other occupants would not be disturbed. When Mr Findlater eventually answered the telephone, she said "I hope you are having an enjoyable holiday because you have ruined mine".
26. Again she anticipated that the deceased would ring but he did not do so. She said that she had completely forgotten what she did for the rest of that day. At about 7.30 pm she put her son to bed. She was very upset and had "a peculiar idea" that she wanted to kill the deceased. According to Mr Cussen she asked him to drive her to Hampstead. In her evidence, she said that she took with her a gun.
27. In her statement to the police, she said about the gun:

"I then took a gun which I had hidden and put in my handbag. This gun was given to me about three years ago in a Club by a man whose name I do not remember. It was security for money but I accepted it as a curiosity. I did not know it was loaded when it was given to me but I knew next morning when I looked at it. When I put the gun in my bag I intended to find David and shoot him.

I took a taxi to Tanza Road and as I arrived, David's car drove away from Findlater's address. I dismissed the taxi and walked back down the road to the nearest pub where I saw David's car outside. I waited outside until he came out with a friend I know as Clive, David went to his car to open it. I was a little way away from him. He turned and saw me and then turned way from me and I took the gun from my bag and I shot him. He turned round and ran a few steps round the car. I thought I had missed him so I fired again. He was still running and I fired a third shot. I don't remember firing any more but I must have done."

28. In evidence, Mrs Ellis did not go into this detail simply saying that it was correct that she had taken the revolver up to Hampstead and shot him. She was asked why she did it and she replied:

"I do not really know, quite seriously, I was very upset."

29. She said that she had not been able to control the peculiar idea that she had formed before leaving the home of Mr Cussen.
30. The evidence showed that she had fired all six of the rounds that were in the gun, four of which had struck the deceased. He died before reaching hospital.
31. By way of cross-examination, the Crown asked Mrs Ellis just one question. They asked what her intention was at the time of the shooting and she responded that it was obvious that she had intended to kill the deceased.
32. The defence called a psychologist, Mr Whitaker. His evidence was that the situation in which she found herself was one that she was likely to think was absolutely intolerable for her. She was convinced that he would return to her despite further unfaithfulness and that when he did so she would be unable to resist taking him back. He gave evidence that women were far more upset by unfaithfulness than men, finding it less easy to "separate their sexual experiences with men from their total personal relationships", and that they were as a result "more prone to hysterical reactions than men". His evidence was that the situation in which she found herself was one that she was likely to think was absolutely intolerable for her. She was convinced that he would return to her despite further unfaithfulness and that when he did so she would be unable to resist taking him back.

Ruling

33. At the conclusion of the evidence, the judge took the opportunity to discuss with counsel the law in the absence of the jury. At the request of Mr Melford Stevenson, Mr Christmas Humphries QC, leading counsel for the Crown, said:

"My learned friend has asked me to assist him by putting my case to your lordship as it stands at this moment and, of course, I am quite happy to do that. It is contained in the one question that I put to the accused woman, that if she, when she fired that revolver at close range into the body of David Blakely, intended to kill him, and did do, that is murder, save for one thing, and that is the law relating to insanity. But she is sane, and in those circumstances it is for my learned friend to suggest anyway, in which, those facts and if that law is right, she can be other than guilty of murder."

34. The judge then said to Mr Stevenson that he understood that he was intending to address the jury on the question of provocation. Mr Stephenson replied that he was. He continued:

"The submission I make at the moment to your lordship – and I hope thereafter I will make to the jury – is, first of all, the basic question, so far as provocation is concerned, whether on a particular set of facts the jury can take the view that the understanding of the accused person was unsettled so that the ordinary control of the act which in most people in a normal state inhibits violent conduct, inhibits any anti-social behaviour, is completely displaced, so that for the time being the ordinary controls are gone, and nothing but an impulsive desire to do something such as killing occupies the mind for that time. My Lord, that is a loose, but I hope an accurate, description of the ambit of provocation."

35. Counsel later made it clear that he was relying on "a long course of conduct on the part of the dead man who had been the centre of an emotional crisis by a woman like this one". He accepted that the judge had to decide whether there was any evidence that could possibly amount to provocation.
36. The judge, having heard argument, considered the matter over night and gave his ruling in the following terms:

"I feel constrained to rule that there is no sufficient material, even on a view of the evidence most favourable to the accused, for a reasonable jury to form the view that a reasonable person so provoked could be driven, through transport of passion and loss of self control, to the degree and method and continuance of violence which produces the death, and consequently it is my duty as a judge, as a matter of law, to direct the jury that the evidence in this case does not support a verdict of manslaughter on the ground of provocation."

37. As we have already indicated, following that ruling, Mr Stevenson did not consider that he could properly address the jury. The judge in his summing up to the jury dealt with the matter in the following terms:

"The House of Lords, which, as you know, is the highest appellate tribunal of this land, has decided that, when the question arises whether what would otherwise be murder may be reduced to manslaughter on the ground of provocation, if there is no sufficient material, even on a view of the evidence most favourable to accused, for a reasonable jury to form the view that a reasonable person so provoked could be driven, through the transport of passion and loss of self control, to the degree and method and continuance of violence which the produces the death, it is the duty of the judge as matter of law to direct the jury that the evidence does not support a verdict of manslaughter.

I have felt constrained, members of the jury, to rule in this case that there is no sufficient material, even on a view of the evidence most favourable to the prisoner, for a reasonable jury to form the view that a reasonable person so provoked could be driven, through a transport of passion and loss of self control, to the degree and method and continuance of violence which produces the death, in this case, and consequently it is my duty, as a matter of law, to direct you, and I do direct you, that the evidence in this case does not support a verdict of manslaughter on the ground of provocation. It is not, therefore, open to you to bring in a verdict of manslaughter on the ground of provocation."

The submissions in support of the appeal

38. The appellant's primary submission is that on the law as it was at the time of trial, the judge was wrong to withdraw the issue of provocation from the jury. It is contended 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.
39. Mr Mansfield contends that Counsel for the Crown conducted the trial on the basis that if the appellant accepted that she had an intention to kill she would automatically be guilty of murder. He relies upon the initial observation made by Mr Humphreys QC when the judge invited counsel's views on the law, which we have already set out. He submits that during the discussion that followed the judge adopted this view of the law. Referring to Holmes v DPP [1946] AC 588 he commented:

"Have you got this passage as part of your headnote: 'Consequently, where the provocation inspires an actual intention to kill…or to inflict grievous bodily harm, the doctrine that provocation may reduce murder to manslaughter seldom applies. Only one very special exception has been recognised, viz, the actual finding of a spouse in the act of adultery'?"

40. He then added:

"That seems to me to be one of the main difficulties in your case."

41. Mr Mansfield argues that this was a misunderstanding of the law as it then was and as it is now. He submits that any doubt about the matter had been resolved by the Privy Council in AG for Ceylon v Kumarasinhege [1953] AC 200 at p205, where Lord Goddard had made the matter clear:

"But as the Court of Criminal Appeal set out in their judgment what they conceived to be the English law relating to manslaughter their Lordships feel bound to observe that in one respect the court were in error. They said in reference to English law, "if it is established or clear from the evidence that through provocation of howsoever grievous a kind may have been offered, nevertheless, if it could be shown that the accused caused the death with an intention to kill, the offence is one of murder not manslaughter. This is one of the fundamental differences between our law and that of England." A little further down in the judgment they said "in the case of murder, there must be an intention to kill, in the case of manslaughter, no such intention can exist." With all respect to the court, that is not the law of England."

42. Mr Mansfield further points to observations in Lee Chun-Chuen v The Queen [1963] AC 220 at p227 where Lord Morris of Borth-y-Gest sought to explain the meaning of Viscount Simon's words in Holmes:

"It is plain that Viscount Simon must have meant the word "actual" to have a limiting effect and that he had in mind some particular category of intention. He cannot have meant that any sort of intention to kill or cause grievous bodily harm was generally incompatible with manslaughter because that would eliminate provocation as a line of defence…"

43. Mr Mansfield submits that the rationale behind the trial judge's decision to withdraw provocation from the jury was undermined by his misunderstanding of the law as it then stood. It is suggested that the ruling was not reasoned in detail and the judge did little more than quote from part of Viscount Simon's speech in Holmes. He further complains that in his ruling the judge made no reference to the evidence that he had considered nor did he identify the basis for his decision. The defence of provocation was not withdrawn because there was no evidence of provocation or loss of self-control. The burden of proving that the killing was unprovoked was on the Crown. The defence did not need to make out a prima-facie case of provocation but merely to point to material which could induce a reasonable doubt.
44. In these circumstances it is submitted that given the decisive effect of this ruling on the outcome of the trial, it was incumbent on the judge to provide a soundly reasoned explanation for the conclusion he had reached. In view of the manner in which the point was argued by the Crown, and the Judge's intervention during legal argument, it is suggested that the Judge proceeded or may have proceeded under a misapprehension of the law. Mr Mansfield, therefore, argues that it would be wrong now to infer from the limited reasoning in the judge's ruling that contrary to the way in which the argument proceeded, he had applied the right test in law.
45. Thus Mr Mansfield invites the court to say that since there was unchallenged evidence that at the time of the killing Mrs Ellis was unable to control the impulse to kill the deceased, the issue of provocation should have been left to the jury.
46. In the alternative, even if the judge was right to rule as he did in accordance with the law of provocation as it was understood at the time of trial, the court should have regard to developments in the law of provocation since that date and that if the law as it is understood today is applied, this is a case where the issue of provocation clearly should have been determined by the jury.
47. It is accepted that the court has to consider the fact that significant statutory changes were made to the law relating to provocation by section 3 of the Homicide Act 1957 which provided:

"Where on a charge of murder there is evidence on which the jury can find that the person charged was provoked (whether by things done or by things said or by both together) to lose his self-control, the question whether the provocation was enough to make a reasonable man do as he did shall be left to be determined by the jury; and 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 on a reasonable man."

48. It is further accepted that in R v Derek Bentley (2001) 1 Cr.App.R. 307, Lord Bingham C.J. set out the approach to developments in the law since trial (paras. 4 and 5 at p.310 ):

"(1) We must apply the substantive law of murder as applicable at the time, disregarding the abolition of constructive malice and the introduction of the defence of diminished responsibility by the Homicide Act 1957.

(2) The liability of a party to a joint enterprise must be determined according to the common law as now understood.

(3) The conduct of the trial and the direction of the jury must be judged according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.

(4) We must judge the safety of the conviction according to the standards which we would now apply in any other appeal under section 1 of the 1968 Act.

Where, between conviction and appeal, there have been significant changes in the common law (as opposed to changes effected by statute) or in standards of fairness, the approach indicated requires the Court to apply legal rules and procedural criteria which were not and could not reasonably have been applied at the time."

49. It is submitted that the Common Law as to provocation has evolved to reflect changes in the values of society and that the court is required to have regard to those changes that have taken place since. At the forefront of such changes is the recognition of the need to have regard to the personal characteristics of the defendant in considering the reaction of the reasonable man. Further it is suggested that the law has developed to reflect a much better psychological understanding of what has come to be known as "slow burn provocation" in relation to the concept of the reasonable person. "Slow burn provocation" in this context means provocation over a prolonged period that has a gradually mounting effect on the person, who is subjected to it, so that a point is reached where a relatively minor provocation pushes the person too far and he or she acts in a way that might be seen as a disproportionate response to the final part of the provocation but is to be understood, and thus viewed, as the response of a reasonable person, to all that has happened over the prolonged period.
50. In the case of Ruth Ellis, it is submitted that when these factors are taken into account, there would have been clear issues of provocation for the jury to resolve. In addition, we were invited to admit fresh evidence that would go these issues. We will return to the question of fresh evidence later in this judgment.
51. The third argument advanced, although Mr Mansfield did not orally address us upon it, is that the statutory defence of diminished responsibility introduced by the Homicide Act 1957 falls into a unique category. It is suggested that it had its origins in the common law defence of insanity and thus, by some reasoning that we do not fully understand, the court is entitled to set aside the conviction for murder, notwithstanding that there was no such defence provided by the law until some years after the trial.
52. It should be noted that the CCRC in referring this case to the court expressly concluded that there was "simply no basis to import the defence (which came into being in 1957) backwards in time – either as a matter of statute or of Common Law". However as the legislation presently stands, grounds of appeal may be drawn other than those resulting in the reference without any requirement to obtain the leave of the court to argue a ground even where the CCRC has decided that it is without any merit.

The Crown's Response

53. Mr Perry, on behalf of the Crown, argues that the conviction was safe. It was not in any sense an unfair trial, since it was properly decided on the basis of the law as it existed before fundamental changes were made to it by the Homicide Act 1957. The judge's ruling was, it is submitted, a perfectly proper one on the substantive law at the date of trial and in Bentley, this court has already decided that the law at that date is the law to be applied in an appeal such as this many years after the event. In so far as there have been developments in the approach of the courts since that date, they have to be seen in the light of the statutory changes that the 1957 Act introduced and that they are, as a result, consequential upon the changed law.
54. Mr Perry suggests that there were two essential issues in this case that the judge had to consider in giving his ruling:

i. Did provocation arise at all in this case where there was not suggested to have been any act in the two days before the shooting that could be seen as an act of provocation as recognised by the law at that time?

ii. Even if there were an act or a series of acts that might have raised the possibility of a defence of provocation, was there any evidence that could have led a jury to conclude that Mrs Ellis had suffered a "sudden and temporary loss of self-control"?

55. Mr Perry submits that the Common Law doctrine of provocation was formulated to introduce a balance between the respect that the Common Law has always afforded to the sanctity of life and a recognition that it would be unduly harsh to treat those driven by provocation to so lose their self-control that they took the life of another. To achieve this balance, a variety of different judicial mechanisms were employed so as to maintain the defence within limits seen to represent an acceptable balance between the competing considerations.
56. The first such mechanism was judicial control as to what conduct on the part of the deceased could amount to a sufficient provocation to justify a reduction of the offence from murder to manslaughter. Thus it was established that mere words would not at Common Law suffice (see for example Holmes). Mr Perry submits that the only provocative conduct recognised by the Common Law as sufficient for these purposes was some form of violent act by the deceased and the only exception that was recognised was the finding by a man of his wife in the act of committing adultery.
57. Another important mechanism by which judicial control was exercised was by the requirement that, even if the accused had responded to an act of the kind that satisfied the last requirement, the plea could be dismissed if the response was wholly disproportionate to the provocative act.
58. Each of these controls could be exercised by the judge in deciding whether there was material that could be considered by the jury in this regard. The Royal Commission on Capital Punishment that made recommendations that resulted in the passing of the Homicide Act 1957, concluded that the balance that had been struck had become too rigid in society as it had developed since the Common Law rules had been made and that there ought to be changes in the law so as to relax these controls. Parliament accepted that view and changed the law in two material respects. First it relaxed the restrictions on the actions of the deceased that could amount to provocation, permitting regard to "everything both done and said". Secondly, it provided that if there was evidence that the accused had lost his self-control as a result of things that were done or said or both, the issue should be left to the jury for them to decide whether it was sufficient to have caused a reasonable man to act as the accused had. Thus the judicial control over proportionality was removed and that issue was one left to the jury to determine free of such control.
59. Mr Perry submits that changes in the approach to provocation of necessity have resulted from those statutory changes. He argues that once words alone could be a basis for provocation the courts were bound to consider the importance of the characteristics of the accused since the provocative words might be directed to those characteristics. Hence such changes were a direct response to the statutory changes to the law. Attention was drawn in this regard by the CCRC to the observations of Lord Diplock in Camplin: (1978) 67 Cr. App R. 14 at p.20; [1978] A C 705 at p.717:

"But so long as words unaccompanied by violence could not in law amount to provocation the relevant proportionality between provocation and retaliation was primarily one of degrees of violence. Words spoken to the accused before the violence started were not normally to be included in the proportion sum. But now that the law has been changed so as to permit of words being treated as provocation even though unaccompanied by any other acts, the gravity of verbal provocation may well depend upon the particular characteristics or circumstances of the person to whom a taunt or insult is addressed."

60. Mr Perry submits that the judge was quite right to rule as he did in this case on the existing law. There was no act that could properly be seen as a provocative act in response to which Mrs Ellis had acted. She had responded in a pre-meditated way to the situation in which she found herself, which may have caused her distress, but it was that situation rather than any act or acts of the deceased which caused the distress. It may have been "a transport of passion" but it was a calm, deliberate, pre-meditated killing. The plea of provocation is inconsistent with planning and here there was evidence of such planning. She had formed the intention to kill at the very least two hours before she carried out the killing, she had armed herself with a firearm for that very purpose and she had gone in search of David Blakely intending to find him and kill him.
61. Further, her response to the situation was a wholly disproportionate one and the judge was entitled to conclude that no reasonable jury could have concluded, even on the version of the facts that were most favourable to Mrs Ellis, that her reaction was not one that a reasonable woman would have had.
62. As to the issues raised in respect of a defence of diminished responsibility, Mr Perry argues quite simply that there was no such defence at common law, and it is not possible to take the purely statutory defence of diminished responsibility created by section 2 of the Homicide Act 1957 and apply it as if it had been enacted at the date of the killing or the date of trial.
63. In any event, if the need had arisen, he would have argued that the evidence did not reveal any diminished responsibility.

Our Conclusions

64. We deal first with the submission that the court should view the conviction as unsafe because on the evidence then available, or on evidence that could now be put forward, Mrs Ellis would today have been able to invite a jury to consider a defence of diminished responsibility.
65. As Lord Bingham C.J. made clear in Bentley in the passage to which we have earlier referred, we must apply the substantive law of murder as applicable at the time, disregarding the changes brought about by the Homicide Act 1957. One of the changes to which he expressly referred was the provision of the defence of diminished responsibility. We are clearly bound by that decision, but in any event we do not have the slightest difficulty in concluding that the decision was right.
66. We have no doubt that the Commission was entirely right when it concluded that this was an argument that could not be sustained and it did not altogether surprise us that Mr Mansfield, whilst not altogether abandoning the point, did not think that it merited oral argument before us.
67. We turn, therefore, to the points that deserve rather more detailed consideration relating to provocation. We think it necessary first to consider what the law is that we have to apply to the issue of provocation. Clearly in this regard too, Bentley establishes that it is the substantive law at that date. However Lord Bingham made clear that where the Common Law has itself developed, the court will have regard to such developments in determining an appeal whenever the conviction occurred.
68. Thus it is necessary to ask whether the material changes with which this case is concerned are simply developments of the Common Law or whether they result directly or indirectly from the changes effected by the Homicide Act 1957. The 1957 Act was undoubtedly legislation to change the law relating to homicide as is made clear in its long title, and this is equally clear from examination of the relevant provisions and comparison with the existing law. Section 3 did not in any sense codify the existing law in relation to provocation but amended it. It was thus a statutory change to the substantive law and not a development of the Common Law.
69. Further we are satisfied that the changes upon which reliance is placed as to the relevance of the characteristics of the accused are a necessary consequence of the change in the substantive law and cannot be seen as merely the development of the pre-1957 Common Law. That was made clear by the House of Lords in Camplin and we have already made reference to the speech of Lord Diplock in this regard.
70. Thus we are satisfied that we have to examine the ruling of Havers J. by the law as it was before the 1957 Act came into force.
71. As we have made clear Mr Mansfield submits that the ruling was one that was based on a misunderstanding of the law, since the case had been conducted by the Crown on the basis that there could be no reliance on provocation where the killing was carried out intentionally. We accept that the Crown's approach was that this was the law. That seems apparent to us from the opening, from the cross-examination limited to one question and from the observations made by Mr Humphreys to the judge when he invited assistance on the law.
72. We are also prepared to accept for the purposes of this appeal that the prosecution's view did not represent a correct interpretation of the Common Law in that regard. In fairness to counsel, we should make clear that it was a view of the law which was widely accepted. By way of example, the editions of Archbold's Pleading, Evidence and Practice in Criminal Cases stated the law in these terms at the time and continued to do so until its 35^th edition published in 1962 (see R v Martindale [1966] 1 WLR 1564 at p 1567).
73. The question that we have to address is not whether the Crown's view may have been wrong but whether the judge's ruling was in any way based upon such an approach. Mr Mansfield submits that the basis of the ruling is not clear but we cannot accept that that is so. The judge's ruling both at the time when it was given and his direction to the jury in this regard were both expressly on the basis that there was no evidence upon which a jury could conclude that a reasonable person provoked as Mrs Ellis was would have reacted as Mrs Ellis had done "to the degree and method and continuance of violence which produces the death" (words clearly derived from Holmes). It is clear that he was saying that whatever view the jury took of the facts, the provocation such as it would be open to them to consider could not pass the proportionate response test.
74. Thus in no sense was he ruling that, because Mrs Ellis had admitted that the killing was intentional, her guilt must follow as the Crown had submitted. He may have taken that view at one stage during argument but if he did, having reflected on the matter over night, that was not the basis upon which he ruled that the issue of provocation was not to be considered by the jury. It follows that this mistaken view of the law had no impact upon the conviction of Mrs Ellis for murder and we have to consider the basis upon which the judge actually ruled.
75. There was clearly unchallenged evidence that over a significant period of time, the deceased had subjected Mrs Ellis to violent conduct within their relationship, culminating in the incident that preceded, and may have resulted in, her miscarriage. If Mrs Ellis had reacted immediately to one of these violent episodes then there can be little doubt, both on the law as it was at the time of trial and as it is now, that there would have been a clear issue of provocation that the judge would have been obliged to leave to the jury. In considering the proportionality of the response the jury would have been obliged to consider not only the final instance of violence which had resulted in the violent response leading to death but also the whole history of violence against which background the violent response had to be seen to be fully understood. Thus a violent response, which might, if it were a response to a single isolated incident, be judged to be disproportionate, might nonetheless be considered not to be unreasonable if the whole background was taken into account. This is the whole basis of the concept of "slow burn provocation". However, there would remain a necessity for there to be a triggering event and the response had to be considered as a response to that triggering event, albeit set against any earlier violent background.
76. It was, therefore, necessary for the trial judge in considering, as he was bound to do under the pre-1957 law, whether there was evidence upon which the jury could conclude that this was or may have been a case of provocation as recognised by the Common Law, to determine what, if any, conduct may have triggered the shooting of the deceased.
77. At this stage of the consideration the judge was bound to recognise that the Common Law imposed limitations upon the conduct that might be recognised as a basis for a finding of provocation. We have already made clear that prior to the statutory changes introduced in 1957, mere words could not amount to provocation for these purposes. What, therefore, was the conduct upon which reliance could be placed as resulting in the extremely violent reaction of Mrs Ellis? We posed this question to Mr Mansfield in argument and he listed a number of events over the relevant weekend. Essentially they were that, having assured Mrs Ellis that he would return to her on the Friday evening, the deceased did not do so and failed to communicate to her any explanation for his sudden abandoning of her in this way. Further he had deliberately concealed from her his whereabouts, refusing to speak to her on the telephone and causing his friend to give misleading information as to where he was.
78. The first question for the judge to resolve was, therefore, whether these were events of a kind that the law recognised as a sufficient trigger even when set against the earlier background so as to justify a conclusion that this was a case of provocation such as to justify a reduction in the crime committed from murder to manslaughter. We have no difficulty in concluding that they were not, on the law as it was at the relevant time. Everything alleged is in reality an omission rather than a positive act. Mr Mansfield argues that although omissions they nonetheless involved positive acts. For example the failure to go back to Mrs Ellis is an omission seen in that sense but it involved the positive act of going to the Findlaters home. Whilst we recognise the force of this argument what "provoked" Mrs Ellis was not the going to the Findlaters home but the failure to come back to her.
79. Having regard to the restricted view of the Common Law as to what could amount to provocation for these purposes, we find it wholly impossible to see that any of the events of the relevant weekend could under the Common Law be a sufficient basis for a conclusion that Mrs Ellis had been provoked in a way that would justify reducing murder to manslaughter.
80. The position is perhaps made clear by consideration of slightly different facts. If the deceased had chosen instead of avoiding speaking to Mrs Ellis to confront her on the telephone and tell her that he was finished with her and was not returning to her and had done so in highly abusive and unpleasant terms, there could be no question of such conduct being sufficient to amount to provocation for these purposes. The position would clearly be covered by the rule of Common Law that mere words would not suffice. It would, it seems to us, be quite remarkable if the actions of the deceased in this case involving no such abusive and unpleasant confrontation could be seen as a sufficient provocation when the other instance was not.
81. In Stingel v The Queen (1990) 171 CLR 312, the High Court of Australia considered and rejected an appeal by a 19 year old appellant who had had a long standing relationship with a girl which she had chosen to break off. He remained obsessed and infatuated with her and would not leave her alone. In due course he observed the girl with another young man in a car in the course of sexual activity and approached and shot dead the young man. At his trial for murder, the judge withdrew the issue of provocation from the jury and the High Court of Australia on appeal upheld this decision. The decision was referred to with approval by Lord Hoffman in R v Smith (Morgan) [2001] 1 AC 146 at page 169. He said:

"Male possessiveness and jealousy should not today be an acceptable reason for loss of self control leading to homicide, whether inflicted upon the woman herself or her new lover. In Australia the judge was able to give effect this policy by withdrawing (the) issue from the jury. But Section 3 prevents an English judge from doing so. So, it is suggested a direction that characteristics such as jealousy and obsession should be ignored in relation to the objective element is the best way to ensure that people like Stingel cannot rely upon the defence."

82. We can see no proper basis for distinguishing between male and female behaviour in this regard. In England in 1955, the position was that which was applicable in Australia at the date of Stingel's trial and thus the judge was able "to give effect to the policy by withdrawing the case from the jury". Whilst we think that the situation of Mrs Ellis was more likely to excite sympathy than that of Stingel, Stingel's case nonetheless underlines that even the modern approach is to require something more than mere possessiveness and jealousy. We have no doubt that under the law as it was before the Homicide Act 1957, this was even more clearly the case.
83. Whether it is right that the only circumstances in which the Common Law recognised conduct other than violent conduct as a sufficient basis for a finding of provocation was the finding of a spouse in an act of adultery or whether other exceptional circumstances might have sufficed, it is clear to us that the events of the Easter weekend leading to the killing in this case could not justify any such conclusion that there was provocation of the kind recognised by the law in this regard.
84. Thus there was no event of the requisite kind that could have triggered this killing after the physical violence preceding the miscarriage. This attack had taken place approximately a fortnight before the killing. It was never suggested by Mrs Ellis that she had acted as a result of this earlier violence and it would, in reality, on the evidence have been quite impossible for her so to do. It is an essential feature of such provocation that there is "sudden and temporary loss of self control" as was made clear in the direction of Devlin J in R v Duffy (Note) [1949] 1 All ER 932, which was subsequently treated as a classic direction to the jury:

"Provocation is some act, or series of acts, done by the dead man to the accused, which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind."

85. Whilst the Common Law has never sought to impose any time limit between the provocative act and the killing, it could not possibly be said in this case that a loss of self control, even if it did in part relate to the violent act a fortnight before, was a sudden or temporary response to that violence. Any conclusion to the contrary would clearly be wrong. Thus there was no event recognised by the law as a provocative act of the relevant kind to which a proportionate response might have been to take a gun and kill the deceased in the manner that Mrs Ellis did. The judge was, therefore, entirely right on the law as it was prior to the statutory changes brought about in 1957 to withdraw the issue of provocation from the jury.
86. That conclusion effectively disposes of this appeal but we should perhaps mention a number of other matters. Mr Mansfield sought to place before the court fresh evidence which he suggested would impact upon the decision of the court. The principle part of that evidence was psychiatric evidence relating to the condition of Mrs Ellis at the time. We declined to admit that evidence because we could not see that it could have any bearing upon our decision. It would have had most relevance to the issue of diminished responsibility. However, bearing in mind our conclusions that, even if it were possible to put forward evidence that today would give rise to a real issue of diminished responsibility, it was not possible to raise such an issue in respect of a pre-1957 case, this could not possibly have led to our allowing the appeal and as such the evidence could have had no relevance to our consideration of the appeal. Further it was suggested that the evidence had some relevance to the issue relating to provocation. However, since we concluded that the characteristics of the accused person only became relevant to the issue of provocation because of the statutory changes to the law, again this evidence could not affect our conclusion in relation to a case before those statutory changes, even if the evidence were accepted to be right. For these reasons we declined to hear this evidence.
87. The respondent also sought to place fresh evidence before us. That evidence, if accepted to be right and admissible, might have led to a conclusion that this killing was even more premeditated than it must have seemed at the time of trial. In her evidence, Mrs Ellis had been unable to explain how she spent the day before the killing. This was perhaps remarkable because she seemed to remember so well all other matters in considerable detail. The evidence the Crown would have wished to raise, the source of which was the solicitor who acted for her at trial and who is himself now deceased, would have explained this gap in her recollection. It would have shown that she had gone out with Desmond Cussen during that day and amongst other things had engaged in target practice at a tree in preparation for the killing that night. Clearly if this evidence was right, it would suggest that this was a case very, very far removed from the sort of case in which the law recognises a sudden and temporary loss of self control justifying a conclusion of provocation reducing murder to manslaughter.
88. We considered that there were significant problems that would have to be overcome before the Crown could rely upon this evidence and, even if it was in law admissible, it would have been very difficult to know what weight could safely be attached to the evidence when there was no opportunity to see the evidence tested by cross-examination before us. In the circumstances, we considered that the interests of justice did not require us to embark upon this difficult exercise and we declined to hear this evidence as well.
89. For the reasons that we have given we heard no new evidence and it follows from our earlier conclusions that we are satisfied that this appeal is without merit. Mrs Ellis was properly convicted of murder according to the law at the time when she committed her offence. If her crime were committed today, we think it likely that there would have been an issue of diminished responsibility for the jury to determine but we are in no position to judge what the jury's response to such an issue might be. As we have made clear, it is no part of our function to enter into the debate as to whether Mrs Ellis should have been spared execution.
90. We would wish to make one further observation. We have to question whether this exercise of considering an appeal so long after the event when Mrs Ellis herself had consciously and deliberately chosen not to appeal at the time is a sensible use of the limited resources of the Court of Appeal. On any view, Mrs Ellis had committed a serious criminal offence. This case is, therefore, quite different from a case like Hanratty [2002] 2 Cr App R 30 where the issue was whether a wholly innocent person had been convicted of murder. A wrong on that scale, if it had occurred, might even today be a matter for general public concern, but in this case there was no question that Mrs Ellis was other than the killer and the only issue was the precise crime of which she was guilty. If we had not been obliged to consider her case we would perhaps in the time available have dealt with 8 to 12 other cases, the majority of which would have involved people who were said to be wrongly in custody. The Court of Appeal's workload is an ever-increasing one and recent legislation will add substantially to that load. Parliament may wish to consider whether going back many years into history to re-examine a case of this kind is a use that ought to be made of the limited resources that are available. The exercise of the CCRC's discretion in deciding whether to refer cases is one that is a frequent source of challenge by way of Judicial Review and it may be that an express power to consider factors of this kind would enable the CCRC to take into account more readily the public interest in making its decision.