United Kingdom House of Lords Decisions

Acott, R v. [1997] UKHL 5; [1997] 1 All ER 706; 161 JP 368; [1997] 2 Cr App Rep 94; [1997] Crim LR 514 (20th February, 1997)

LORD MUSTILL

My Lords,

            I have had the advantage of reading in draft the speech prepared by my noble and learned friend Lord Steyn, for the reasons which he gives, I also would dismiss this appeal.

LORD NOLAN

My Lords,

            For the reasons given in the speech to be delivered by my noble and learned friend, Lord Steyn, which I have read in draft and with which I agree, I too would dismiss the appeal.

LORD NICHOLLS OF BIRKENHEAD

My Lords,

            For the reasons given by my noble and learned friend Lord Steyn, with which I agree, I also would dismiss this appeal.

LORD STEYN

My Lords,

            On 19 June 1995 at the Central Criminal Court, the appellant was convicted of the murder of his mother. He appealed to the Court of Appeal (Criminal Division) on a number of grounds. In a reserved judgment the Court of Appeal dismissed his appeal: Reg. v. Acott [1996] 4 All.E.R. 443. The appeal to your Lordships House is directed to one issue only, namely the ruling of the Court of Appeal on provocation.

            In his summing up to the jury the Recorder of London had not left the issue of provocation to the jury. On appeal to the Court of Appeal (Criminal Division) counsel for the appellant submitted that the recorder should have left the issue of provocation to the jury and should have directed the jury upon it. In giving the judgment of the court Rougier J. stated that the vital question was "what sort of evidence must exist before the judge's duty to leave the issue of provocation to the jury is triggered?" Rougier J. considered this question in some detail. In a careful judgment he concluded that "there was no evidence to enable the jury to come to any determination as to what provocation, if any, was offered to the appellant." He held that the recorder came to the correct conclusion in not leaving the issue of provocation to the jury. In these circumstances the court dismissed the appeal. The Court of Appeal (Criminal Division) certified that there was a point of law of public importance involved in the decision to dismiss the appeal namely:

"In a prosecution for murder, before the Judge is obliged to leave the issue of provocation to the jury, must there be some evidence, either direct or inferential as to what was either done or said to provoke the alleged loss of self-control?"

The Court of Appeal granted leave to appeal.

            Given the narrow focus of the appeal it is possible to summarise the background to the case briefly.

The trial

            The trial took place in June 1995 before the Recorder of London. The the prosecution case was as follows. In 1993 the appellant lived with his mother. He was 48 years old and his mother was 78 years of age. At 9.15 p.m. on 17 February 1993 the appellant, in a state of agitation, telephoned for an ambulance. He said that his mother had been injured as the result of a fall. The ambulance men met the appellant in his mother's bungalow and found the deceased dead on the floor of the hallway. An examination showed that the deceased had sustained multiple injuries, particularly in the area of the head, face and neck.

            The appellant was of good character. He was a mild man. He worked until 1991 when he gave up his job and moved to Rainham to live with his mother. The appellant tried to obtain another job but he was unsuccessful. After exhausting his savings he became financially dependent on his mother. He found his dependence on his mother somewhat irksome. But in his interviews and at the trial he repeatedly said he was very fond of his mother. There was other evidence to the same effect. In accordance with a recent will of his mother he was her sole beneficiary.

            When questioned by the police and at the trial the appellant consistently denied that he was responsible for his mother's death. He said his mother had come to his bedroom to say "goodnight" and almost immediately afterwards he heard her fall. He said he tried to help her but she fell again. He tried to pick her up and she again fell heavily. He tried to resuscitate her, he thumped her chest and slapped her face in an effort to bring her round. He said her injuries had been caused by her falls and his unskilled efforts to resuscitate her.

            Three pathologist's testified: two pathologists, with varying degrees of emphasis, said that the deceased died as a result of a sustained attack; and a third pathologist testifying on behalf of the defence said the injuries were explicable on the basis of the defendant's account.

            The appellant's case at the trial was therefore that he had not attacked his mother and that he was entitled to a complete acquittal. Counsel in their speeches and the recorder in his summing up treated it as a case involving a single issue. The recorder directed the jury that "This is murder or nothing." The jury rejected the appellant's explanation and, having been given the directions required by law in regard to burden and standard of proof, the jury convicted the appellant of murder by a majority verdict.

The evidence said to justify a direction on provocation

            It is now possible to summarise the materials relied on by the appellant in support of the argument before the Court of Appeal, which was repeated before your Lordships' House, that the judge ought to have left provocation as an issue to the jury. First, counsel for the appellant pointed out correctly that leading counsel for the Crown had repeatedly put to the appellant in cross examination that he had lost his self control and attacked his mother. Counsel for the Crown cross examined on the basis that the appellant had been angered by his mother treating him like a little boy and berating him. Counsel for the appellant submitted that the Crown had made provocation an issue and that accordingly the judge should have summed up on provocation. Instead, counsel for the appellant said, the judge reminded the jury of these passages in the evidence but failed to leave the issue of provocation to the jury.

            Counsel for the appellant further argued that the extent of the injuries to the deceased was testimony to a frenzied attack which was prima facie indicative of a loss of self control. Moreover, counsel argued that this inference was reinforced by the cumulative effect of the following factors: the appellant was unemployed; he was in the humiliating position of having to ask his mother for money; the evidence was that she sometimes treated him like a little boy; she was given to black moods; and apparently sometimes she drank excessively.

The decision of the Court of Appeal

            Rougier J. said that the issue of provocation caused the court some anxiety. He was willing to accept that there was evidence tending to suggest that the appellant lost his self control. After analysing the statute and the authorities, he concluded [1996] 4 All E.R. 443, 453A-F:

            "In our judgment, having considered the authorities, before a judge is required by the statute to leave the issue of provocation to the jury, there must be some evidence of provocation in its active sense, in other words some evidence of what was done or what was said to provoke the homicidal reaction. Such evidence will, in the vast majority of cases, be direct. It is possible that it could arise by inference-for instance if, shortly before his death, the deceased was heard to say that he proposed to go and taunt the defendant upon a matter whereon the latter was known to be particularly sensitive. But it is not enough that the evidence should merely indicate that the defendant had lost his temper, possibly as a result of some unidentified words or actions, for people occasionally work themselves into a fury and erupt with no external provocation at all. If it were otherwise, the jury would have no material upon which they could make the objective judgment demanded by the statute. To direct them to determine whether the provocation in question was enough to make a reasonable man do as the defendant did, without the slightest inkling of what the provocation was, would be to ask the impossible. . . .

            "From the foregoing it follows that since there was no evidence to enable the jury to come to any determination of fact as to what provocation, if any, was offered to the appellant, we do not consider that it was incumbent on the recorder to put the issue before them, and he was right not to do so."

These are the conclusions of the Court of Appeal which were challenged on appeal to your Lordships House.

 

The general principles

            Before I turn directly to an analysis of the issues on this appeal it is necessary to summarise the principles of law so far as they may affect this appeal. Section 3 of the Homicide Act 1957 reads as follows:

            "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."

Section 3 moderated the strict requirements of the common law defence of provocation. Section 3 can be divided into three parts: (1) the provoking conduct; (2) causatively relevant loss of self control; and (3) the objective criterion whether the provocation was enough to make a reasonable man do as the defendant did. For the purposes of examining the constituent elements of provocation it is only necessary to consider the classic case of provocation of an accused person by the deceased. First, in respect of the provoking conduct section 3 abolished the common law rule that words alone could not amount to provocation. It did so by using the general words "whether by things done or by things said or by both together." The meaning of these words is plain and by using the shorthand expression "provoking conduct" I do not intend to put a gloss on the words of the statute. Secondly, the question is whether the provoking conduct of the deceased caused the defendant to lose his self control. This is usually called the subjective condition. In the absence of any evidence, emerging from whatever source, suggestive of the reasonable possibility that the defendant might have lost his self control due to the provoking conduct of the deceased, the question of provocation does not arise. Thirdly, the section provides that 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. This part of the section provides for an external or objective standard. This provision is explained by the concluding provision that in determining the objective question the jury shall take into account everything done and said according to the effect which, in their opinion, it would have on a reasonable man. The purpose of this part of the section is well settled. After the adoption of the reasonable man test in the second half of the last century, judges withdrew cases where the defendant wished to rely on provocation on the basis of rules or supposed rules which were judicially developed. By converting common sense criteria into fixed rules of law judges empowered themselves to invoke those rules to withdraw cases from the jury. Thus the rule was laid down that disproportionate retaliation may bar the defence, or, as it was later put, that the retaliation must bear a reasonable relationship to the provocation received: Mancini v. Director of Public Prosecutions [1942] A.C. 1; Rex v. Duffy (Note) [1949] 1 All E.R. 932; see also generally Logan v. The Queen [1996] AC 871, 887P. Plainly proportionality was a highly relevant matter to a defence of provocation. But the perceived mischief was that judges withdrew cases from the jury of on the ground of fixed rules of law. In Reg. v. Camplin [1978] AC 705 the House of Lords held that section 3 abolished all previous rules linked with the objective requirement as to what can or cannot amount of provocation: see p. 716C, per Lord Diplock. At the same time section 3 abolished the power of the judge to withdraw provocation as an issue on the ground that there was no evidence on which the jury could find that a reasonable man would have been provoked as the defendant was: Reg. v. Camplin supra. Henceforth the objective requirement was to be regarded as an issue of fact, or, more realistically as a matter of opinion, within the sole province of the jury. But importantly, in the context of the present appeal, it remained the duty of the judge to decide whether there was evidence of provoking conduct, which resulted in the defendant losing his self control. If in the opinion of the judge, even on a view most favourable to the accused, there is insufficient material for a jury to find that it is a reasonable possibility that there was specific provoking conduct resulting in a loss of self control, there is simply no issue of provocation to be considered by the jury: Lee Chun-Chuen v. The Queen [1963] A.C. 220, 229, per Lord Devlin.

            Standing back from the minutiae of section 3 A.J. Ashworth (now Professor Ashworth) described the core features of the modern law of provocation in terms which are helpful in the context of the present appeal: The Doctrine of Provocation [1976] C.L.J. 292. He said, at pp. 317--318:

"Provocation mitigates moral culpability to the extent that a person acted in a less-than-fully-controlled manner in circumstances in which there was reasonable justification for him to feel aggrieved at the conduct of another. The law's subjective condition operates to ensure that it was not a revenge killing, but rather a sudden and uncontrolled reaction to perceived injustice. The objective condition looks to the element of partial justification and, inevitably, to the conduct of the provoking party. It requires of the jury an assessment of the seriousness of the provocation, and a judgment as to whether the provocation was grave enough to warrant a reduction of the crime from murder to manslaughter. This question of sufficiency is one of degree, and the legal rules, although they can take the court so far, cannot determine this ultimate question. Of course there will be clear cases-as, for example, where a teenage son loses control and attacks his bullying father-and there will be doubtful cases-as, for example, where a husband kills his wife during a quarrel over infidelity, which the parties had more or less accepted for a considerable time. Each case is for the decision of the jury, properly directed as to the law."

This passage emphasises that it is an integral part of the idea of provocation that the deceased aroused the anger of the defendant and made him lose his self-control. It explains how the jury cannot determine either the subjective or the objective condition without some evidence of the nature of the provocation.

The proposition that the Crown made provocation an issue

            Counsel for the appellant argued that the Crown made provocation an issue by putting to him in cross-examination that he attacked his mother as a result of a loss of self control caused by momentary anger at the way in which his mother treated him. The appellant throughout denied these suggestions, and he insisted that his relationship with his mother was good and that she had done nothing to anger him. The cross-examination produced no evidence of provoking conduct or of a loss of self control. In deciding what issues must be left to the jury a judge must be guided by the state of the evidence. Suggestions in cross-examination cannot by themselves raise an issue of provocation where the evidence, on the most favourable view for the defendant, reveals no issue. It follows that I would reject this way of putting the appellant's case.

The relevant evidence

            The disposal of the appeal therefore depends on the state of the evidence. Like Rougier J. I am willing to infer from the injuries of the deceased that there was reasonable possibility that the appellant lost his self control and attacked his mother in anger. But by itself that is not enough. The question is whether there is any evidence of specific provoking conduct. As the issues became refined during the helpful oral submissions of both counsel, it became clear that counsel for the appellant was submitting in this part of his argument that from the fact of loss of self control and the evidence that the appellant was sometimes treated by his mother as a little boy it is a rational inference that the appellant's loss of self control might have followed upon a specific provoking element albeit perhaps of a trivial and "last straw" variety. Subject to his earlier argument already discussed, counsel for the appellant accepted that if such an inference is not justified, the appeal must fail. In my judgment that concession was rightly made. It is a short point not of law but of logic and common sense. The recorder plainly took the view that the evidence did not justify an inference of a specific provoking event. In my view the evidence was insufficient to support the suggested inference. It was not a reasonable possibility arising on the evidence: it was mere speculation. In these circumstances the appeal must fail on the facts.

The certified question

            Strictly, the certified question need not be answered in order to dispose of the appeal. But it seems possible to summarise the legal position in terms which might be helpful. Section 3 is only applicable "if there is evidence . . . that the person charged was provoked (whether by things done or things said or by both together) to lose his self control." A loss of self control caused by fear, panic, sheer bad temper or circumstances (e.g. a slow down of traffic due to snow) would not be enough. There must be some evidence tending to show that the killing might have been an uncontrolled reaction to provoking conduct rather than an act of revenge. Moreover, although there is no longer a rule of proportionality as between provocation and retaliation, the concept of proportionality is nevertheless still an important factual element in the objective enquiry. It necessarily requires of the jury an assessment of the seriousness of the provocation. It follows that there can only be an issue of provocation to be considered by the jury if the judge considers that there is some evidence of a specific act or words of provocation resulting in a loss of self control. It does not matter from what source that evidence emerges or whether it is relied on at trial by the defendant or not. If there is such evidence, the judge must leave the issue to the jury. If there is no such evidence, but merely the speculative possibility that there had been an act of provocation, it is wrong for the judge to direct the jury to consider provocation. In such a case there is simply no triable issue of provocation. I would hold that in such circumstances our law of provocation knows no principle that "the jury must not be deprived of their opportunity to return a perverse verdict": see the commentary by Sir John Smith on Reg. v. Stewart [1995] Crim.L.R. 67 but compare his later commentary on Reg. v. Acott [1996] Crim.L.R. 665.

            Counsel for the appellant invited your Lordships to go further and state what would be sufficient evidence of provocation to justify a trial judge in leaving the issue of provocation for the jury to consider. The invitation was attractively put. But it must be rejected. What is sufficient evidence in this particular context is not a question of law. Where the line is to be drawn depends on a judgment involving logic and common sense, the assessment of matters of degree and an intense focus on the circumstances of a particular case. It is unwise to generalise on such matters: it is a subject best left to the good sense of trial judges. For the same reason it is not useful to compare the facts of decided cases on provocation with one another.

            For my part the certified question can be answered in the general way in which I have indicated. But the reasoning in this judgment is subject to the overriding principle that the legal burden rests on the Crown to disprove provocation on a charge of murder to the required standard of proof. In Lee Chun-Chuen v. The Queen, [1963] A.C. 220, 229, Lord Devlin summed up the legal position as follows:

". . . . It is not, of course, for the defence to make out a prima facie case of provocation. It is for the prosecution to prove that the killing was unprovoked. All that the defence need do is to point to material which could induce a reasonable doubt."

That remains the position.

            I would dismiss the appeal.

LORD HOFFMANN

My Lords,

            For the reasons given in the speech delivered by my noble and learned friend, Lord Steyn, which I have read in draft and with which I agree, I too would dismiss the appeal.