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
ON APPEAL FROM NEWCASTLE-UPON-TYNE CROWN COURT
(HIS HONOUR JUDGE HODSON

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

Lord Justice Potter :

1. On 14 February 1997 in the Crown Court at Newcastle-upon-Tyne, after a trial before His Honour Judge Hodson and a jury, the appellant who is now aged 45, was convicted of murder and sentenced to imprisonment for life. He had pleaded guilty to manslaughter by reason of provocation, but this plea was not acceptable to the prosecution who proceeded with the charge of murder.
2. On 30 June 1997 the single judge dismissed his application for leave to appeal against conviction. The grounds of appeal (drafted by junior counsel) were that the verdict of the jury was perverse, that there was a misdirection in respect of provocation, and that the appellant's legal team wrongly failed to call psychiatric evidence from Dr H.A McClelland who had provided a report dated 20 May 1996.
3. On 19 February 1998 the appellant abandoned a renewed application to the Full Court.
4. On 16 September 1998 the appellant applied to the Criminal Cases Review Commission, which issued a final decision not to refer the case on 9 August 2000. However, the appellant reapplied to the Commission by new solicitors on 7 June 2001.
5. He now appeals against conviction following a reference to this court by the Commission dated 10 May 2002. The Commission has referred the case on the basis of a change in substance of the law on provocation, following the decision of the House of Lords in R v Smith (Morgan) [2001] 1 Cr. App. R. 31.
6. On 7 November 2003 we admitted fresh evidence from two psychiatrists and allowed the appeal. We set aside the verdict of murder and quashed the sentence of life imprisonment, substituting a verdict of guilty of manslaughter and a sentence of 7 years imprisonment. We now give our reasons.

Summary of the prosecution and defence cases at trial.

7. The appellant admitted that he killed his wife Linda by stabbing her repeatedly during an argument at their home on 25 October 1995. They had been in a relationship for four years before marrying in August 1994. The couple lived with Mrs Rowland's daughter, Claire, and her son Ian. Evidence about their marriage was given by Mrs Rowland's friends, colleagues and family. The relationship had deteriorated in early 1995, leading to a temporary separation in February 1995. Mrs Rowland had been unfaithful to her husband more than once and had told friends that she was planning to leave the marriage. The appellant was unaware of this. It was agreed that the appellant was much quieter than his very sociable wife and drank less than she did. The appellant was previously of good character; evidence was given as to his integrity, good nature and placid disposition. Contradictory evidence was given as to whether Mr Rowland had been possessive or violent towards his wife.
8. Mrs Rowland's parents described having on occasion seen bruising and injuries which the appellant was alleged to have inflicted on their daughter and they said that he had become unreasonable and possessive. Claire gave evidence that the appellant always started the arguments, usually about her mother's job. He had behaved hysterically when Mrs Rowland would not see him during the time that they separated. She described seeing the appellant pour a cup of tea over her mother and punch her - the police were called and took him away. (The police account contradicted this). She stated that in another incident, her mother had threatened the appellant with a knife and said that, were it not for her children, she would stab him.
9. The prosecution said that, at some time during the fatal argument, the appellant must have gone into the kitchen to get the knife before stabbing his wife. They also pointed to a letter that he wrote after he had killed her as indicative of someone who had been in control of himself.
10. The defence case was that Mrs Rowland had for some time withdrawn from what had been an initially loving relationship. The couple's sex life had deteriorated. The appellant became anxious about his wife's drinking and was concerned about the welfare of the children. He disliked her working in Jackson's, a social club with a bad reputation. He denied being obsessive or jealous and felt that Mrs Rowland was hypocritical for criticising him when she stayed out drinking so often. The appellant had developed Peyronie's Disease (scar tissue causing a bend in the penis, which is apparent on erection but which does not affect sexual performance). Mrs Rowland had taunted him about this condition and laughed with her daughter about it. The appellant said that the only time he had previously caused injury to his wife was in March 1995 when she was very drunk and tried to get out of the car whilst he was driving. He had pulled her hair and neck in an attempt to restrain her; she had punched him.
11. The appellant said that, despite numerous attempts by the appellant, Mrs Rowland refused to discuss their relationship. In desperation, he wrote a lengthy letter to her describing his feelings about their marriage, but she refused to read it. On the night in question, the appellant thought, as the children were away, that this would be a good opportunity for them to resolve their problems. They had arranged to meet after they had finished their evening shifts but, when the appellant returned home, he found a note from his wife saying that she had gone to the club. He joined her there, where he drank one-and-a-half pints of lager and they began to argue. He tried to talk about their relationship when they returned home but Mrs Rowland, when asked, again refused to read the letter. She left the flat to take the dog for a walk. The argument continued when she returned and she taunted him again about his medical condition. The argument became heated and Mrs Rowland attacked him, sticking her fingernails into his face. The appellant said that the next thing he could remember was anger. He claimed that he lost control and did not know what he was doing. A struggle ensued, during which he stabbed her with a kitchen knife. At the time he said he did not know how the knife came to be in the living room. The appellant then visited his brother, obtained a quantity of Lithium tablets, returned home and tried to kill himself both by taking the tablets and by cutting his arms, having first written a letter explaining why he had done this. He recovered, however, telephoned the police and told them what he had done.

The second application to the CCRC

12. The appellant's new solicitors submitted a letter dated 4 May 2001 from an eminent psychiatrist, Dr McClelland, to the CCRC. Dr McClelland had examined the appellant before his trial with a view to advancing a defence of diminished responsibility and had not been asked for his views in relation to a defence of provocation. He was asked by the new solicitors to clarify his opinion as to the effects of Mr Rowland's personality on his actions. Dr McClelland stated that at the time of the offence, personality traits of Mr Rowland lowered his threshold for impulsive behaviour. He was suffering from depression. In a normally passive and over-controlled individual, an incident which causes a loss of control, may lead to an extreme reaction. Aggression may be a feature of depression.
13. It was submitted that Dr McClelland's evidence and its application to the law as stated in Smith (Morgan) supra, afforded a real possibility that the Court of Appeal might conclude that "the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offences from murder to manslaughter" (per Lord Hoffmann at p21).

The CCRC's investigation

14. In the course of the Commission's re-investigation, it sought opinions from the four psychiatrists who had examined the appellant before his trial: Drs Gibb, O'Grady, Kothari and McClelland. The Commission also obtained an opinion from a forensic psychologist, Dr James McGuire, as to whether the appellant was subject to 'over-controlled personality' traits and the possible relevance of this to a defence of provocation.
15. Dr McClelland made a further report dated 27 October 2001. In it he noted that, prior to trial, Dr Kothari and Dr Gibb had not evaluated personality in their initial reports and had not considered critical aspects of Mr Rowland's life history. Dr McClelland agreed with their views that the arguments between the appellant and his wife showed that "there was not a complete control of irritability" (paragraph 2.1.C). However, he made clear his view that the appellant had been suffering from a reactive anxiety-depression (an adjustment disorder). This was of insufficient severity to justify a plea of diminished responsibility. However, the appellant had:

"An anxious personality, over-anxious to please and impress with a resultant tight control of irritability and anger. In my view, the relationship with Linda was so difficult and so peculiarly distressing upon him, that it heightened those personality weaknesses. He would become more anxious, more frustrated and he seems to have been unable to vent his anger except on occasion… His masculinity was greatly threatened by her refusing physical relationships, her taunting of him having Peyronie's Disease and her suspicious lifestyle… This man was still desperately trying to hold his marriage together and having to exert a great deal of self-control so as to continue with work, try to manage household administration (including chores) and to do all this was excessively acceptant of an abnormal situation which had gone on for a protracted period."

16. Dr McClelland considered that somebody without the lifelong anxiety and insecurity characteristics of the appellant, would have addressed the marital problems sooner: "He was too weak to stand up to her and too weak to leave her." These characteristics were exacerbated by the prolonged stresses of a dysfunctional marriage, and had resulted in clinical depression. The final provocative conduct of Mrs Rowland resulted in "this weak and over-controlled man losing his control…" (paragraph 2.7). We quote further from Dr McClelland's conclusions at paragraph 55 below.
17. Dr McGuire interviewed Mr Rowland in January 2002 at the request of the Commission. He administered a number of psychometric assessments.
18. Dr McGuire concluded that:

"1) Philip Rowland showed a long-term pattern of anxiety and insecurity probably reaching back to his childhood and exacerbated by acutely distressing events in his adolescent years. One focus of these was a fear of family disintegration and abandonment.

2) His long-term personality pattern shows features of compulsiveness and marked investment in self-regulation. He keeps negative feelings including anger at bay and in most circumstances manages them tightly to avoid conflict. He is prone to be dependent, under-assertive and shows clear signs of an over-controlled personality.

3) The specific circumstances within his marriage placed him under gradually increasing stress. As this situation worsened he became depressed and emotionally exhausted. His attempts to redress these problems, using the approaches available to him given his personality pattern, repeatedly failed. This placed him in a position in which his defences and controls were unable to contain his feelings.

4) The combination of these long-term, stable personality features, and the temporary conditions in which he found himself, almost certainly wholly undermined his ability to control his anger resulting in an outburst of extreme aggression."

The Commission's reference to this court

19. The Commission set out its reasons for the reference to this Court as follows.
20. The fact that medical evidence going to the question of provocation was not pursued at trial reflected the understanding of the appellant's trial team of the law as it stood, prior to Smith (Morgan). The opinion sought of the defence psychiatrists, Drs Kothari and McClelland, was directed to the question of diminished responsibility rather than provocation. These reports had not been favourable to such a defence. Although, in his initial report, Dr McClelland had volunteered certain observations on provocation without having been so requested, leading counsel considered that Dr McClelland's expert opinion simply in relation to provocation was not admissible and that, in any event, to call Dr McClelland as a witness might expose him to damaging cross-examination. There were authorities, prior to Smith (Morgan), which might have been cited to support the argument that Dr McClelland's expert opinion was admissible on the issue of provocation but, in the light of the then weight of authority, the decision of counsel was understandable. Had the legal position at the time of trial been that determined by Smith (Morgan), it is likely that the defence would have sought expert opinion on the issue of provocation, the jury being provided with evidence of the appellant's personal characteristics in support of such a defence.
21. The absence of such expert evidence meant that the jury considered only an essentially placid man with a specific physical condition (Peyronie's Disease), who lost his temper in the heat of the moment, and committed an inexcusable act. They had no evidence as to the level of self-control which would be likely or could reasonably be expected in a man with the appellant's additional characteristics spoken to in the psychiatric reports obtained by the Commission. These provided substantial evidence of the appellant's personal characteristics which might well have influenced the jury's view of the level of self-control which he could have been expected to exercise in face of the provocation he encountered by way of his wife's conduct and her taunting of him. In the view of the Commission there was a real possibility that this Court would now find this conviction to be unsafe.

The appellant's submissions

22. Mr Topolski Q.C. for the appellant has adopted and advanced the reasoning of the Commission and, in this connection, has sought leave to adduce fresh evidence from Dr McClelland and Dr McGuire.
23. He submits, following Smith (Morgan), that in deciding the degree of control that could have been reasonably expected from the appellant on the facts of this case it would be unjust not to take into account the effect of his personality characteristics and pre-offence depression as set out in the fresh evidence. He submits that, on the basis of the law as now clarified, the evidence of, in particular, Dr McClelland as to the nature of the appellant's personality and his state of depression at the time of the killing, could and should have been before the jury in relation to the defence of provocation. Not only is it not possible to assess "the degree of control which society could reasonably have expected" of the appellant (per Lord Hoffmann at p.92) without reference to such characteristics but there is, on the facts of this case, a clear link between the subjective provocation asserted by the appellant at trial and the opinion asserted by both Dr McClelland and Dr McGuire that the combination of his personal characteristics and his depressed state "wholly undermined his ability to control his anger."
24. It is not inevitable that the jury would have convicted of murder had they heard the fresh evidence in this case and accordingly the verdict of murder is unsafe.
25. Mr Topolski relied on a recent memorandum from leading counsel who appeared for the appellant at trial which included the following: -

"As the law stood it seemed to me that much of the helpful comments which Dr McClelland had provided in his report and was prepared to stand by was, in fact, inadmissible. Obviously the situation would have been different had the decision been taken in the light of the current law … Much of the helpful opinions which I would have been pleased for Dr McClelland to give to the Jury was, in fact, unlikely to be permitted (quite rightly) by the Learned Judge …

Although Dr McClelland was willing to give as much evidence as the law permitted him to do I took the view, balancing many considerations, that it would not be appropriate to call him on behalf of the Defence. Perhaps I was over confident in the strength of the Defence which appeared to me to amount to an almost classic case of provocation."

The respondent's submissions

26. Mr Brian Forster Q.C. on behalf of the Crown has taken a very proper and realistic attitude when opposing the appeal. He accepts that the defence of provocation has to be seen in a new light since the decision in Smith (Morgan). He has also rightly drawn our attention to the recent decision in R -v- Weller [2003] EWCA Crim 815 (see further below). He does not question the statement of leading counsel to which we have referred at paragraph 25 above. However, he makes the point that, if the evidence of Dr McClelland and Dr McGuire had been before the jury, its weight would and should have been subject to judicial comment from the judge that every citizen must be expected to exercise self-control. While recognising that the issue of provocation and the weight of the evidence both for and against the defendant were considerations for the Jury, he submits that we should regard the conviction as safe.
27. Finally, Mr Forster urges us in any event to give guidance as to the ambit of the recent decision of this Court in Weller and, in particular, the extent to which a judge, in the light of Smith (Morgan) and Weller, may properly comment upon the question of the characteristics to be expected of the "reasonable man" referred to in s.3 of the 1957 Act.

The Law

28. Section 3 of the 1957 Act provides: -

"Provocation

3. 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."

29. In R v Smith (Morgan) supra the respondent and the deceased M, both alcoholics, were friends. During an argument about the alleged theft of the respondent's carpentry tools by M, the latter was fatally stabbed by the respondent who was charged with his murder. At his trial he relied, inter alia, on the defence of provocation and upon medical evidence to the effect that at the time of the killing he was suffering from a depressive illness, the consequence of which was to impair his capacity for self-control. The trial judge directed the jury that the respondent's depressive state was relevant only to the gravity of the provocation, and not to the question whether an ordinary person might have lost his self-control. The respondent was convicted of murder.
30. Upon appeal, this Court allowed the appeal and substituted a verdict of manslaughter. It held that, where a physical condition or other personal characteristics of the accused were relevant to the question whether, in the circumstances, he was in fact provoked (the gravity of the provocation), they were also relevant to the question whether, in the circumstances, the reasonable man would have been provoked (the standard of self-control) which was a question for the jury and not for the judge. The Crown appealed to the House of Lords, the Court of Appeal having certified the following question: "Are characteristics other than age or sex attributable to a reasonable man, for the purposes of section 3 of the Homicide Act 1957 relevant not only to the gravity of the provocation to him but also to the standard of control to be expected?"
31. The House of Lords (Lord Millett and Lord Hobhouse dissenting) dismissed the appeal.
32. The difference of opinion between the majority (Lord Slynn, Lord Hoffmann and Lord Clyde) and the minority centred upon the effect of the speech of Lord Diplock in D.P.P. v Camplin [1978] AC 708 (H.L.) and, in particular, the effect of his statement at 718 E-F that, a proper direction to be given to the jury was as follows:

"The judge should state what the question is using the very terms of the section. He should then explain to them that the reasonable man referred to in the question is a person having the power of self-control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they think would affect the gravity of the provocation to him; and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but also whether he would react to the provocation as the accused did."

33. The minority took the view that subsequent decisions of the House of Lords in R v Morhall [1995] 2 CR App R 502, [1996] AC 90 and of the Privy Council in Luc Thiet Thuan v R [1996] 2 Crim App R 178, [1997] AC 131 make clear the preservation of the historic distinction between matters going to the gravity of the provocation (the subjective test), in relation to which all the personal characteristics of the defendant are relevant, and matters going to the required standard of self-control, (the objective test), in relation to which the jury should decide the matter simply by reference to the standards of "a person having ordinary powers of self-control". The majority, however, held that, while there remained an objective element to the defence, and not all the personal characteristics of the defendant were potentially relevant to the issue of self-control, the appropriate standards of behaviour to be applied were entirely a matter for the jury and not for direction by the judge as a matter of law.
34. Lord Slynn said at paragraph 24 and following: -

"In my view the section requires that the jury should ask what could reasonably be expected of a person with the accused's characteristics. This does not mean that the objective standard of what "everyone is entitled to expect that his fellow citizens will exercise in society as it is today" is eliminated. It does enable the jury to decide whether in all the circumstances people with his characteristics would reasonably be expected to exercise more self-control than he did or put another way that he did exercise the standard of self control which such persons would have exercised. It is thus not enough for the accused to say, "I am a depressive, therefore I cannot be expected to exercise control." The jury must ask whether he has exercised the degree of self-control to be expected of someone in his situation.

It thus seems to me that the particular characteristics of the accused may be taken into account at both stages of the inquiry. I do not accept that the section intends the rigid distinction between the two parts of the inquiry for which the prosecution contends …

I accept that there may be difficult borderline cases as to which particular characteristics can be taken into account but the same is also true in applying the first part of the test. The second part of the test applied in the way I accept it should be applied has not caused insoluble difficulties in the Court of Appeal cases to which I have referred. Moreover the distinction being the "objective" and the "subjective" tests contended for by the prosecution is very difficult for a jury and I doubt whether it is really workable.

In my opinion justice requires that personal characteristics should be taken into account in the way I have indicated unless the section precludes it. In my view it does not. "

35. Lord Hoffmann's conclusion (at paragraph 105) was that the judge should not have directed the jury as a matter of law that the effect of Smith's depression on his powers of self-control was "neither here nor there". The jury should have been told that whether they took it into account in relation to the standard of self-control which ought reasonably to have been expected of him, was a matter for them to decide.
36. At paragraph 91 and following, Lord Hoffmann stated: -

"91. … judges should not be required to describe the objective element in the provocation defence by reference to a reasonable man, with or without attribution of personal characteristics. They may instead find it more helpful to explain in simple language the principles of the doctrine of provocation. First, it requires that the accused should have killed while he had lost self-control and that something should have caused him to lose self-control. For better of for worse, section 3 left this part of the law untouched. Secondly, the fact that something caused him to lose self-control is not enough. The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question for the jury. In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowance for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition. In applying these standards of behaviour, the jury represent the community and decide, as Lord Diplock said in Camplin (1978) 67 Cr. App.R.20 [1978] A.C. 717, what degree of self-control "everyone is entitled to expect that his fellow citizens will exercise in society as it is today". The maintenance of such standards is important. As Viscount Simon L.C. said more than 50 years ago in Holmes v. D.P.P. (1946) 31 Cr. App.R. 123, 142, [1946] A.C. 588, 601, "as society advances, it ought to call for a higher measure of self-control."

92. The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up. In most cases, nothing more will need to be said. But the jury should in an appropriate case be told, in whatever language will best convey the distinction, that this is a principle and not a rigid rule. It may sometimes have to yield to a more important principle, which is to do justice in the particular case. So the jury may think that there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account. If the jury take this view, they are at liberty to give effect to it.

93. My Lords, I do not wish to lay down any prescriptive formula for the way in which the matter is explained to the jury. I am sure that if the judges are freed from the necessity of invoking the formula of the reasonable man equipped with an array of unreasonable "eligible characteristics", they will be able to explain the principles in simple terms. Provided that the judge makes it clear that the question is in the end one for the jury and that he is not seeking to "impose a fetter on the right and duty of the jury which the Act accords to them", the guidance which he gives must be a matter for his judgment on the facts of the case."

37. Lord Clyde, who expressed agreement with Lord Slynn and Lord Hoffmann, said at paragraph 104: -

" … While I fully recognise the importance of not allowing the effects of a quarrelsome or choleric temperament to serve as a factor which may reduce the crime of murder to one of manslaughter, nevertheless I consider that justice cannot be done without regard to the particular frailties of particular individuals where their capacity to restrain themselves in the face of provocation is lessened by some affliction which falls short of a mental abnormality. It does not seem to me that it would be just if in assessing their guilt in a matter of homicide a standard of behaviour had to be applied to people which they are incapable of attaining. I would not regard it as just for a plea of provocation made by a battered wife whose condition falls short of a mental abnormality to be rejected on the grounds that a reasonable person would not have reacted to the provocation as she did. The reasonable person in such a case should be one who is exercising a reasonable level of self-control for someone with her history, her experience and her state of mind. On such an approach a jury should be perfectly capable of returning a realistic answer and thus achieve a verdict which would fairly meet any peculiarities of the particular case consistently with the recognition of the importance of curbing temper and passion in the interest of civil order."

38. At paragraph 108, Lord Clyde observed:

"Even those who are sympathetic with what may be described as an objective approach have to recognise that at its extreme it is unacceptable. So a concession is made for considerations of the age and sex of the accused. But then the problem arises why a consideration should not be given to other characteristics. Some groups of people may be seen to be by nature more susceptible to provocation than others. Some races may be more hot-blooded than others. Nor do age or gender necessarily carry with them unusual levels of self-control or the lack of it. The problem is to identify where in the middle ground between these two extremes the line is to be drawn. It seems to me that the standard of reasonableness in this context should refer to a person exercising the ordinary power of self-control over his passions which someone in his position is able to exercise and is expected by society to exercise. By position I mean to include all the characteristics which the particular individual possesses and which may in the circumstances bear on his power of control other than those influences which have been self-induced. Society should require that he exercise a reasonable control over himself, but the limits within which control is reasonably to be demanded must take account of characteristics peculiar to him which reduce the extent to which he is capable of controlling himself. Such characteristics as an exceptional pugnacity or excitability will not suffice. Such tendencies require to be controlled. Section 3 requires that the accused should have made reasonable efforts to control himself within the limits of what he is reasonably able to do. This is not to destroy the idea of the reasonable man nor to reincarnate him; it is simply to clothe him with a reasonable degree of reality. But as the statute prescribes, the matter comes to be one of the circumstances of the case and the good sense of the jury. Although the statute expressly refers to a reasonable man it does not follow that in directing a jury on provocation a judge must in every case use that particular expression. The substance of the section may well be conveyed without necessarily importing the concept of a reasonable man."

39. It is noteworthy that, despite the express reference to the reasonable man in section 3 of the 1957 Act, reference to him by the judge in the course of summing-up is discouraged by the speeches to which I have referred. As well as the last quoted sentence from the speech of Lord Clyde, he also expressed agreement with the views of Lord Slynn and Lord Hoffmann. At paragraphs 87-93, Lord Hoffmann explained why in his view "the value of the image [of the reasonable man] has been hopelessly compromised" by the Act of 1957 and how, since Camplin, it had been "impossible to avoid giving the jury a misleading, not to say unintelligible, account of the law when particular characteristics, sometimes highly unusual and even repulsive, are wedded onto the concept of the reasonable man". Whilst disagreeing with Lord Hoffmann's analysis of the law, Lord Hobhouse, in his analysis of the constituents of provocation at paragraph 244, himself opined that

"The phrase 'a reasonable man' although used in the section is better avoided as not assisting the understanding of the criterion 'ordinary powers of self-control'."

40. Similarly, Lord Millett observed that

"It is likely to confuse the jury if they are asked to conjure up the picture of the hypothetical reasonable man with some (but not all) of the characteristics of the accused."

41. Thus it seems clear that, in the context of the law of provocation, the reasonable man is now to be regarded as an archetype best left lurking in the statutory undergrowth, lest his emergence should lead the jury down a false trail of reasoning en route to their verdict. That is not to say that reference to the reasonable man is proscribed; that could scarcely be so in the light of the wording of the statute. However, since the invocation of the reasonable man was traditionally employed by judges in summing-up in connection with characteristics with which he would not normally be expected to be endowed, his utility is diminished once it is clear that the application of the objective test is to be regarded exclusively as a matter for the jury.
42. Thus, whereas in R v Jenkins, Case No. 2000/06760/Z4, unreported 14 February 2002, it was made clear that the decision in Smith (Morgan) does not prevent use of the expression 'the reasonable man' in the judge's summing-up, in Weller, when considering how a jury should be directed on provocation, the court plainly regarded the relevant question as being "whether the defendant should reasonably have controlled himself".
43. In Weller the issue was whether or not, in the course of his summing-up, the trial judge should have left, and if so whether he had left, to the jury the appellant's "unduly possessive and jealous nature" as a relevant characteristic for their consideration in relation to the objective element of the appellant's defence of provocation. The court decided, on the basis of its analysis of the judgments in Smith (Morgan), that the characteristics identified should have been left to the jury and that they had been.
44. In relation to that necessity, Mantell LJ stated at paragraphs 16 and 17: -

"16. In our view it is to be concluded from the majority speeches in Smith that the question whether the defendant should reasonably have controlled himself is to be answered by the jury taking all matters into account. That includes matters relating to the defendant, the kind of man he is 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 may give them some guidance as to the weight to be given to some aspects, provided he makes it clear that the question is one which, as the law provides, they are to answer, and not him.

17. This approach has the considerable advantage that it is unnecessary to determine whether what has been called a "characteristic" of the accused is an eligible characteristic for the purposes of the second element in provocation, the objective element, or is one of which no account should be taken. It avoids categorising human defects into one category or the other, which would otherwise be necessary and is surely artificial. We refer in particular to the difficulties which arose in R v Dryden [1995] 4 All E.R. 987 and to R v Humphreys [1995] 4 All E.R. 1008. It is all a matter for the jury."

45. Later in the judgment it was stated:

"26. It is plain from the majority speeches in Smith (Morgan) that characteristics such as jealousy remain with the jury as matters which fall for consideration in connection with the second, objective element of provocation and section 3. Plainly the jury must not be directed that they should take no account of them and it is essential that it is made clear that such matters may form part of their deliberations. In this case we have concluded that the direction given was sufficient. In many cases, however, it might well prove the better course to identify the particular characteristics relied upon, whether or not accompanied by further guidance.

27. In Lowe, unreported 21 February 2003, a decision of this Court, the practice was commended by which the judge places the proposed direction on provocation in writing before counsel for their consideration … It seems to us that there may also be considerable advantages in giving the direction to the jury in writing at the appropriate moment in the summing-up or taking them through it. It is asking a lot of a jury to absorb the direction as they listen to it and to carry it in their minds with them into the jury room."

46. It is noteworthy that the court stated at paragraph 26 that the jury must not be directed that they should take no account of characteristics such as jealousy in connection with the objective element of provocation despite the observations of Lord Hoffmann (at paragraph 78), when considering the Australian case of Stingel v R (1990) 171 CLR 312 that

"Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide …"

47. and that:

"a tendency to violent rages or childish tantrums is a defect in character rather than an excuse."

48. Similarly, Lord Clyde recognised the importance of not allowing the effects of "a quarrelsome or choleric temperament" (paragraph 104) and "such characteristics as an exceptional pugnacity or excitability" to be regarded as sufficient to establish the defence of provocation.
49. We do not consider that in Weller, this court intended to modify or ignore those passages. The observations of Lord Hoffmann had been referred to earlier in the judgment in Weller at paragraphs 12-15. However, the court concluded that such qualities or characteristics should properly be dealt with by way of comment and guidance on the part of the judge rather than by way of direction as to the standard or standards required by law, the question ultimately being one within the province of the jury alone, c.f. the commentary on Weller by Professor Ashworth Q.C. in the Criminal Law Review [2003] at 725-727. The concerns expressed in that article at the "evaluative free for all" resulting from the speeches of the majority in Smith (Morgan) as applied in Weller, appear fully set out in the review by the Law Commission contained in Partial Defences to Murder Consultation Paper No 173 at paragraphs 1.34 to 1.53 and 4.162 to 4.173. Whatever those concerns, however, until the outcome of the Law Commission's Review is embodied in a change in the law, the practical problem remains of providing a good working guide for judges faced with summing-up in cases where the defence of provocation is raised in circumstances where no fixed standard of self-control can be provided by the judge against which to measure the defendant's conduct.

The Judicial Studies' Board Direction

50. That problem is broached in the current Judicial Studies Board (April 2003) specimen direction which is as follows (we adopt numbered paragraphs for convenience of exposition):

i) If you are sure that D killed X intending to kill X or to cause X really serious injury, D is guilty of murder unless you conclude that this was or may have been a case of provocation. Provocation is not a complete defence, leading to a verdict of Not Guilty. It reduces what would otherwise be murder to the lesser offence of manslaughter. Because the prosecution must prove D's guilt, it is for the prosecution to make sure that this was not a case of provocation, and not for D to establish that it was.

ii) When considering the question of provocation, you must first ask yourselves whether D was provoked at all. A person is provoked if he is caused suddenly and temporarily to lose his self-control by things that have been [said and/or done] by [X and/or others] (add, if appropriate) rather than just his own bad temper. [Here, identify the things allegedly said and/or done to constitute the provocation and, unless it is obvious, the evidence pointing to a loss of self-control.]

iii) If you are sure that D was not provoked in this sense, the question of provocation does not arise, and D is guilty of murder. But what if you think that he was or might have been provoked in the sense I have explained?

iv) It is then for you to decide whether or not D's loss of self-control was sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. When deciding this, bear in mind that the law expects people to exercise control over their emotions. If a person has an unusually volatile, excitable or violent nature [or is drunk] he cannot rely on that as an excuse. Otherwise, however, it is entirely for you, as representatives of the community, to decide what are appropriate standards of behaviour, what degree of control society could reasonably have expected of D, and what is the just outcome of this case. You should make allowances for human nature and the power of emotions. You should also take into account [here deal with any characteristics of D which may have a bearing on the issue.]

v) If you are sure that D's loss of self-control was not sufficiently excusable to reduce the offence from murder to manslaughter, you will find D guilty of murder. Otherwise, your verdict will be "Not Guilty of murder but Guilty of manslaughter (by reason of provocation)".

51. It is to be noted that, rightly in our view, in the light of the observations of Lord Hoffmann and Lord Clyde in Smith (Morgan) to which we have referred, paragraph (iv) has been drafted to reflect those observations. In the final sentence, paragraph (iv) makes clear that the judge should give specific directions in relation to the characteristics of the defendant relevant to the issue of provocation. In that respect, we make certain observations below (at paragraphs 59-62) as to the appropriate procedure to be followed in identifying those characteristics. However, at this point we return to the instant case.

The judge's direction in this case.

52. In the present case the judge directed the jury as follows: -

"How then, members of the Jury, do you determine whether the Defendant was or may have been provoked to do as he did? Reference has already been made to the two questions which you have to consider before you are entitled to conclude that the Defendant was or may have been provoked on this occasion."

"The first question, members of the Jury. May the deceased's conduct, that is things she did or things she said or both, have provoked – and in this context that means caused – the Defendant suddenly and temporarily to lose his self-control – and in the words of the judge from previous generations … rendering the Defendant, "So subject to passion as to make him for the moment not master of his mind"? Not master of his mind.

If you are sure that the answer to that question is no, then the Prosecution will have disproved provocation, and because it is agreed that all the other ingredients of the offence are there, your verdict will be guilty of murder.

If, however, your answer to the question is yes, and I remind you again what the question is, may the deceased's conduct, that the things she did or things she said or both, have caused the Defendant suddenly and temporarily to lose his self-control so that he is not master of his mind, then if your answer to that question is yes, you must go on to consider the second question.

The second question is this. May the deceased's conduct, either things done or things said, words said, or both, have been such as to cause a reasonable and sober person of the Defendant's age and sex to do as he did?

What then is a reasonable person? Well, it is simply a person who has that degree of self-control which is to be expected of the ordinary citizen who is sober and is of the Defendant's age and sex; in other words, a 37 year old man.

But there is another element here, members of the Jury. If you think that the deceased's conduct would have been more provoking to a person who, like this Defendant, had this medical condition which affected his penis when it was erect, then you must ask yourself whether a 37 year old man with that particular physical complaint might have been provoked to do as this Defendant did.

When considering this question, members of the Jury, you must take into account everything which was done and/or said, according to the effect which, in your opinion, it would have upon that ordinary reasonable sober person. What is more, members of the Jury, you are entitled to look at the deceased's conduct, not just in the immediate period leading up to the killing, but over a longer period of time.

The provocative conduct can, in law, relate to just instants, a few minutes before the killing. For example, the case that Mr. Milford spoke to you about, of the spouse suddenly coming across the other spouse in bed with somebody else and then just at that moment losing, suddenly and temporarily, his self-control.

Or there are other examples where the provocative conduct can extend over a number of years, for example, and you will be familiar with the comparatively recent, fairly recent anyway, well publicised case of the woman subjected to repeated and serious violence by her husband over a long period of time; the so called slow burn – Mr. Robson's words – cumulative provocation. It is the loss of control which has to be sudden.

So, members of the Jury, if you are sure that what the Defendant's wife did and/or said would not have caused an ordinary sober man aged 37, with the Defendant's physical characteristics, to do as he did, then the Prosecution will have disproved provocation and, as all the other ingredients of murder are present, your verdict will be guilty of murder.

If on the other hand your answer is what was done and/or said by the Defendant's wife would or might have caused an ordinary sober man of 37 years, with the physical complaint that the Defendant has, to do as he did, then your verdict will be not guilty of murder but guilty of manslaughter by reason of provocation."

53. We consider that, upon the state of the evidence before him and the law as understood at the time, there can be no possible criticism of the judge's summing-up. His directions to the jury properly reflected the law as it then stood and the material before the jury. The judge did not have before him any evidence of the appellant's long-term personality characteristics (see the opinions of Dr McClelland and Dr McGuire quoted at paragraphs 15 and 18 above) and, in particular, the appellant's state of clinical depression at the time of the killing (see the opinion of Dr McClelland quoted at paragraph 45 below). Had he done so, not simply on the basis of the law as developed in Smith (Morgan), but on the basis of the law as it stood in 1997, the defence would have been entitled to call evidence in that respect and the judge would have been bound to bring the conditions described to the attention of the jury at least as characteristics of the accused which might have affected the gravity of the provocation: see D.P.P. v Camplin [1978] AC 705 and R v Morhall [1996] 1 AC 90 per Lord Goff at 97-8.

The further evidence on this appeal

54. This being so, we granted leave to call additional evidence pursuant to section 23 of the Criminal Appeal Act 1968 in relation to the reports of Dr McClelland and Dr McGuire, the Crown having indicated that it did not require the witnesses to give evidence. As to Dr McClelland, Mr Forster very fairly said that he was well respected by the judges at Newcastle-upon-Tyne Crown Court and that the Crown did not seek to undermine his opinion.
55. In our judgment the critical passages in Dr McClelland's report dated 7 October 2001 are those set out at paragraphs 2.3 – 2.5 and paragraph 2.7 as follows: -

"2.3 For some months Mr Rowland had moved into a depressive phase sufficient for me to term it a "clinical depression" (page 14). The severity of his distress justifies this diagnosis (it equates with DSM III criteria for Adjustment Disorder). In making this diagnosis I have paid attention to the weight loss described in witness statements. Weight loss is an important indication of illness, but that the illness was not so severe is indicated by his work not apparently being affected.

2.4 It is accepted in psychiatry that in depression, irritability can surface the more readily. Emotions are strong in many (but not all) forms of depression but can be strongly inhibited. These inhibitory mechanisms are weakened by physical and mental fatigue and the mechanisms can be overwhelmed by severe stress, including provocation. Any repressed hostility is then released in heightened form.

2.5 His life-long intrinsic anxiety and insecurity would have been greatly heightened by the stressful marriage and what had hitherto been minor characteristics now had become much more marked. My view has been that a person without such intrinsic characteristics would have brought the marital problems to a head much sooner. The very length of the marital problems would have caused increasing frustration and humiliation with increasing anger which was over-contained because of his personality characteristics and which was finally released in out of control behaviour. This out of control behaviour was made the more likely by his depressive state. He was too weak to stand up to her and to weak to leave her.

…

2.7 The essential thrust of my opinion is that minor lifelong personality characteristics became accentuated over a sustained period due to the particular stresses of a dysfunctional marriage. He was humiliated and would seem to have been unable to establish an equal partnership. Eventually he developed a clinical depression. The final evening was one in which there would appear to have been provocative behaviour by his wife resulting in this weak and over-controlled man losing his control. To give a balance I would point out that the lifelong personality characteristics that I have described were not major. I would also accept that he was not completely passive in that there were protestations and rows, but overall the picture is that of a weak and humiliated man."

56. We can understand why leading counsel for the appellant at trial did not seek to introduce the evidence of Dr McClelland and make no criticism of him in this respect, given the material then available to him and the then understanding of the law relating to the defence of provocation. However, we have no doubt that, had the case been tried today, counsel for the defence would have called Dr McClelland. Mr Forster very fairly accepted as much. It is true that, in certain respects, Dr McClelland's report goes little further than what was already before the jury at the trial, in the sense that the personality of the appellant was widely canvassed and made plain by the lay evidence. However, the evidence of clinical depression (and its potential impact on his behaviour and loss of control) was never before the jury. Had it been so, the judge would, in relation to the second limb of the defence of provocation, have directed the jury to take into account the fact that the appellant (on Dr McCelland's evidence) had developed clinical depression and that Dr McCelland had in terms stated "This out of control behaviour was made the more likely by his depressive state". These considerations might plainly have affected the decision of the jury to convict of murder.

Conclusion

57. In the unusual circumstances of the present case, for the reasons set out above we do not consider that the conviction of murder is safe and we set it aside.
58. In the event of our so holding, Mr Forster did not suggest that a retrial would be appropriate. Accordingly, we quash the verdict of murder and substitute a verdict of manslaughter by reason of provocation.

Addendum

59. We have already indicated our view that the Judicial Studies Board specimen direction is an appropriate one on which judges may safely proceed in the light of the decision in Smith (Morgan). Paragraph (iv) also makes clear, rightly in our view, that self-induced intoxication is no excuse. In that respect we are satisfied that there was no intention on the part of any of their lordships in Smith (Morgan) to alter the position as expressed in McCarthy [1954] 2 QB 105 and Morhall [1996] AC 90.
60. Bearing in mind the variety of situations in which a defence of provocation may arise, we feel unable to give further general guidance upon the appropriate content of the summing-up save as follows.
61. Before speeches, the trial judge should discuss with counsel the terms of the appropriate direction. The Judicial Studies Board specimen direction should be taken as the appropriate starting point and be suitably tailored to the circumstances of the case. In particular the judge should discuss with counsel (1) the things allegedly said and/or done to constitute the provocation and, unless it is obvious, the evidence pointing to the loss of self-control under the first question (see paragraph (ii) of the direction) and (2) any factors which may have a bearing on the second question (see paragraph (iv) of the direction), with a view to determining what should be put before the jury in the summing-up.
62. In this connection, the judge should bear in mind, as pointed out by Lord Slynn, (see paragraph 34 above) that, in addition to cases where particular factors clearly have a bearing on the issue, there may be difficult borderline cases, particularly as between mere bad temper or excitability on the one hand and identifiable mental conditions and personality traits on the other. In such cases, after prior discussion with counsel, the trial judge should be careful to include all potentially relevant factors at the appropriate point in his summing-up to the jury.