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Cite as: [2001] 1 AC 146, [2000] UKHL 49, [2001] 1 Cr App Rep 5, [2001] AC 146, [2000] 4 All ER 289, [2000] 3 WLR 654, [2000] Crim LR 1004, [2001] 1 Cr App R 5

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Smith, R v. [2000] UKHL 49; [2001] 1 AC 146; [2000] 4 All ER 289; [2000] 3 WLR 654 (27th July, 2000)

HOUSE OF LORDS

Lord Slynn of Hadley Lord Hoffmann Lord Clyde Lord Millett Lord Hobhouse of Wood-borough

OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT

IN THE CAUSE

REGINA

v.

SMITH

(RESPONDENT)

(ON APPEAL FROM THE COURT OF APPEAL (CRIMINAL DIVISION))

ON 27 JULY 2000

LORD SLYNN OF HADLEY

My Lords,

The respondent was charged with murdering James McCullagh on the 16 November 1996. He put forward three defences: (a) lack of intention to cause death or really serious harm; (b) provocation; (c) diminished responsibility. The jury by a majority of ten to two convicted him of murder.

The issue raised on this appeal is whether the trial judge properly directed the jury on the defence of provocation in accordance with section 3 of the Homicide Act 1957 which provides

In summary, the defendant's case was that he was suffering from serious clinical depression and that as a result of three incidents involving the deceased (particularly the respondent's belief that the deceased had stolen his tools) he had been so provoked as to lose his self control and to kill him.

The trial judge ruled that severe depressive illness was not a matter for the jury to take into account in deciding whether an ordinary man sharing the respondent's characteristics would have lost his self control. In his summing up he told the jury that a depressive state was a characteristic to be taken into account when dealing with the gravity of the provocation but that the fact that the depressive illness might have disinhibited the respondent from behaving violently was irrelevant.

The Court of Appeal (Rose L.J., Vice-President, and Potts and Douglas Brown JJ.) allowed the appeal on the direction as to provocation but rejected the other grounds of appeal.

Having referred to the many previous decisions on this issue, the Court of Appeal said

The court gave leave to appeal and certified the following question.

The exegisis of the defence of provocation together with the reasons for it and its development over three centuries in particular, though its origin is earlier, have been dealt with in detail by counsel for the Crown and for the respondent. That history has been further set out in decisions in your Lordships' House in Reg. v. Camplin [1978] AC 705, in Luc Thiet Thuan v. The Queen. [1997] AC 131 and in the present case by my noble and learned friend Lord Hoffmann whose opinion I have had the advantage of reading in draft. I do not repeat that history. I agree with the conclusion of both my noble and learned friends Lord Hoffmann and Lord Clyde that the appeal should be dismissed and because of their detailed analysis of the issues involved and their citation of authority I state my own reasons more briefly.

The origin of the defence lay in the belief that if a man was so provoked as suddenly to lose all reason and self-control justice or "compassion" required that there should be a verdict of manslaughter rather than of murder which attracted the death penalty. Certain categories of act, such as an insulting assault or seeing one's friend being grievously attacked, came to be recognised as constituting provocation. From the end of the 19th century and during the 20th century, however, the question became not only whether the provocation caused the loss of control which itself led to the fatal blow but also whether the jury considered that the provocation would have caused a reasonable man to lose his self control Reg. v. Welsh (1869) 11 Cox 336.

The objective test of the reasonable man reached its high water-mark in your Lordships House in Bedder v. D.P.P. [1954] 1 W.L.R. 1119. The House refused to accept that physical or mental infirmity could be regarded as material in considering whether a man had been provoked and whether a reasonable man could have lost his self control in the circumstances.

It is agreed that section 3 of the Homicide Act 1957 was intended to and did change the position at common law; it also defined the defence of diminished responsibility. So in this case it is common ground that in considering whether the accused has been provoked to lose his self control—sometimes described as the gravity of the provocation and said to be a subjective test—it is for the jury to take into account the personal characteristics of the accused. But the Crown contends that when the question is whether a reasonable man would have lost his self control, personal characteristics, subject to very limited exceptions, must be excluded. Only in that way it is said can the test of a reasonable man objectively regarded be applied; only in that way can a uniform assessment be made. Departures from that approach destroy the concept of a reasonable man by whose standard of control the behaviour of the particular individual is to be judged.

The respondent says that this approach is unfair and unreal and not required by section 3. A person's response to provocation must be judged by comparison with a reasonable man having the same relevant characteristics as he has.

There are judicial decisions both ways. For example in Luc Thiet Thuan v. The Queen [1997] AC 131 the majority in the Privy Council and in Reg. v. Morhall [1996] A.C. 90 the House of Lords underlined the need for an objective test in looking at the reasonable man. He must not be transformed into a replica of the individual defendant. In these two cases, it was however, accepted that personal characteristics could be taken into account when assessing the gravity of the provocation. On the other hand in Reg. v. McGregor [1962] N.Z.L.R. 1069 and in a number of judgments of the Court of Appeal here it has been recognised, as it was by Lord Steyn dissenting in Luc Thiet Thuan, that in considering whether a reasonable man would have reacted as the accused did, some personal characteristics can be taken into account: (See in the Court of Appeal Reg. v. Newell (1980) 71 C.A.R 331 (Lord Lane C.J.) Reg. v. Raven [1982] C.L.R. 51, Reg. v. Ahluwalia [1992] 4 All ER 889, (Lord Taylor of Gosforth C.J.) Reg. v. Dryden [1995] 4 All E.R. 987, Reg. v. Humphreys [1995] 4 All E.R. 1008, Reg. v. Thornton (No. 2) [1996] 2 All ER 1023. (See also Reg. v. Campbell [1997] 1 CrAppR 199, the comments of Lord Bingham C.J.).

I cite by way of example only Reg. v.Dryden [1995] 4 All E.R. 987, 997, where Lord Taylor of Gosforth C.J. said that the decision in Reg. v. Camplin [1978] AC 705 was

In Reg. v. Ahluwalia [1992] 4 All ER 889, 898, Lord Taylor said:

However, the endorsement of the New Zealand authority in Reg. v. Newell (1980) 71 Cr.App.R. 331, shows that characteristics relating to the mental state or personality of an individual can also be taken into account by the jury, providing that they have the necessary degree of permanence.

In Reg. v. Campbell [1997] 1 CrAppR 199, 207, Lord Bingham of Cornhill C.J. said that the court was conscious

Much of the debate before your Lordships has centred on the precise effect of the decision of the House in Camplin [1978] AC 705. Lord Diplock made it clear, at p. 716B, that the section was intended to mitigate in some degree "the harshness of the common law of provocation as it had been developed in recent decisions in this House." He said, at p. 717 that a reasonable man

Bedder v. Director of Public Prosecutions

Taking these passages into account it does not seem to me that Lord Diplock is saying that the question as to the reaction to provocation is wholly objective: on the contrary, he appears to me to be indicating that personal characteristics may be something the jury could take into account. He is certainly not limiting the characteristic which can be taken into account to age (or sex)—"That he was only 15 years of age at the time of the killing is the relevant characteristic of the accused in the instant case." (emphasis added)

Lord Fraser of Tullybelton and Lord Scarman agreed with Lord Diplock. Lord Morris of Borth-y-Gest at p. 721C said:

Lord Simon of Glaisdale said at p. 725D:

Obviously if the only possible interpretation of section 3 were that the "reactions of the reasonable man" test was wholly objective one would be bound to accept it whatever the consequences in particular cases. I am, however, satisfied that it is not the only possible construction of section 3, itself "intended to mitigate in some degree the harshness of the common law of provocation as it had been developed by recent decisions in this House" Camplin [1978] AC 705, p. 716B per Lord Diplock.

It important to bear in mind that the Section left the decision to the jury and took away the judge's power to direct the jury as to what characteristics of the accused could as a matter of law be taken into account and to withdraw the question from the jury on the basis of the judge's personal view. Judges must avoid imposing "a fetter on the right and duty of the jury which the Act accords to them to act upon their own opinion on the matter" Camplin p. 718G per Lord Diplock.

Section 3 in terms requires the jury to decide whether the provocation "was enough to make a reasonable man do as he did" and in determining that question the jury should take into account everything both done and said according to the effect which in their opinion, it would have on a "reasonable man." As all members of the House agreed in Camplin the jury are to be told that the reasonable man

but in other respects sharing such of the accused's

characteristics

that the question is not merely whether such a person

whether he would react to the provocation as the accused did."

.

In Camplin it was asked in effect what could reasonably be expected of a 15 year old boy. 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. As Lord Diplock said in Camplin at p. 718A in respect even of the characteristic of age

In this way the jury can legitimately "give weight to factors personal to the prisoner in considering a plea of provocation," a course they took in any event even when the stricter test was considered to apply. (Royal Commission on Capital Punishment Report (1953) (Cmd. 8932) para. 145).

I do not consider that the existence of section 2 defining the partial defence of diminished responsibility prevents this conclusion. The two defences are in any event different in important respects, not least that whereas provocation depends on a consideration of facts external to the accused, such as the acts of the deceased, the defence of diminished responsibility does not.

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. Accordingly I agree with the opinion of Lord Steyn in Luc Thiet Thuan v. The Queen [1997[ A.C. 131. In my opinion the Court of Appeal in the various cases to which I have referred were right to take the view that personal characteristics other than age and sex could be taken into account when considering whether the reaction to the provocation was that of a reasonable man. It follows that I also agree with the judgment of Potts J. on this point in the present case. I would accordingly dismiss the appeal.

LORD HOFFMANN

My Lords,

1. The facts.

On a November evening in 1996 Morgan Smith received a visit from his old friend James McCullagh. They were both alcoholics and spent the evening in drinking and recrimination. Smith had grievances against McCullagh, some of which went back many years. The most recent was his belief that McCullagh had stolen the tools of his trade as a carpenter and sold them to buy drink. McCullagh's repeated denials only inflamed Smith further. A friend arrived to find the row in full swing. While the friend was using the lavatory, Smith took up a kitchen knife and stabbed McCullagh several times. One of the blows was fatal.

Smith was indicted on a charge of murder before Judge Coombe and a jury. His defences were, first, that he did not intend to kill or cause grievous bodily harm; secondly, that he was suffering from diminished responsibility and thirdly that he was acting under provocation. The jury rejected all three defences and convicted Smith of murder. It is accepted that no criticism can be made of the judge's summing-up on the first two defences. The question is whether he gave the jury the correct directions on the law of provocation.

2. The defence of provocation.

As a result of the decision of the House of Lords in Mancini v. Director of Public Prosecutions [1942] A.C.1 the common law of provocation was tolerably well settled. First, the provocation had to be such as to temporarily deprive the person provoked of the power of self-control, as a result of which he committed the unlawful act which caused death. Secondly, the provocation had to be such as would have made a reasonable man act in the same way. These two requirements are commonly called the subjective and objective elements of the defence respectively. In Reg. v. Duffy [1949] 1 All E.R. 932 the gist of the defence was encapsulated by Devlin J. in a single sentence in his summing-up, which was afterwards treated as a classic direction to the jury:

Two decisions of the House of Lords subsequent to Mancini added glosses to these principles. First, in Holmes v. Director of Public Prosecutions [1946] A.C. 588 it was decided that mere words could not constitute provocation, whatever their effect upon the reasonable man might have been. Secondly, in Bedder v. Director of Public Prosecutions [1954] 1 W.L.R. 1119 it was decided that the "reasonable man" is a wholly impersonal fiction to which no special characteristic of the accused should be attributed. The alleged provocation was that the victim, a prostitute, had taunted the accused for his impotence. The accused was in fact impotent but the House held that the jury had properly been directed to consider whether a reasonable man who was not impotent would have reacted in the same way.

On the recommendation of the Royal Commission on Capital Punishment (1949-1953) (Cmd. 8932), paras. 151-152, the common law was amended by section 3 of the Homicide Act 1957:

This section plainly changed the law in two ways. First, it provided that if there was evidence that the accused was provoked to lose his self-control (the subjective element) then the question of whether the objective element was satisfied had to be left to the jury. The judge was not entitled, as he could at common law, to withdraw the issue from the jury if he thought there was no evidence upon which a jury could reasonably consider that the objective element might have been satisfied. Secondly, the jury could for this purpose take into account "everything both said and done." This removed any legal restriction on the kind of acts that could amount to provocation, such as the rule in Holmes [1946] A.C. 588 that words alone were insufficient.

The question which came before the House in Reg. v. Camplin [1978] AC 705 was whether by implication the section had also changed a third common law doctrine. This was the rule in Bedder [1954] 1 W.L.R. 1119 which required the "reasonable person" to be devoid of any particular characteristics. The accused was a youth of 15 who claimed that he had been provoked to kill an older man by sexual abuse and taunting. The judge had directed the jury that they should consider what effect the provocation would have had upon a reasonable person of full age. The House decided that since provocation by words was frequently directed at some characteristic of the accused, such as his past behaviour, disabilities or race, the change in the law which allowed such taunts or insults to constitute provocation would be ineffectual if the accused had to be assumed to lack such a characteristic. It was therefore decided that, at least for the purpose of considering the gravity of the provocation, the reasonable man should normally be assumed to share the relevant characteristics of the accused. Whether the decision went further and allowed the jury to take into account characteristics of the accused which affected his powers of self-control is the chief question in this appeal and, in order to answer it, I shall have to analyse the case later in more detail. It can however be said that Camplin [1978] AC 705 allowed at least one such characteristic to be taken into account, namely, the youth of the accused. The actual decision was that the jury should have been told to consider what the effect of the provocation would have been upon a person with the powers of self-control of a reasonable boy of 15 and not those of a grown-up.

The extent to which matters affecting the power of self-control should be taken into account divided the Judicial Committee of the Privy Council in Luc Thiet Thuan v. The Queen [1997] AC 131. The majority, in an opinion given by Lord Goff of Chieveley, decided that in principle the actual characteristics of the accused were relevant only to the gravity of the provocation. The only characteristics of the accused which could be attributed to the reasonable person for the purpose of expressing a standard of self-control were his or her age and sex. There had been evidence that the accused suffered from brain damage which made it difficult for him to control his impulses in response to minor provocation. But this was held irrelevant to the question of whether the objective element in the defence had been satisfied. The majority said that the English cases after Camplin (to some of which I shall later refer) which had held that the jury should be directed that they could take such matters into account, had been wrongly decided. Lord Steyn, in a minority opinion, said that the later cases were not inconsistent with Camplin, constituted a logical extension of its reasoning and were in accordance with justice and common sense.

3. The trial, summing-up and appeal.

In the present case there was psychiatric evidence on both sides. It dealt mainly with the question of whether Smith was suffering from diminished responsibility but the expert witnesses also considered his susceptibility to react to provocation. A psychiatrist called by the defence, who had seen Smith in prison less than a fortnight after the offence, said that he was suffering from an abnormality of the mind, namely depression, which could reduce his "threshold for erupting with violence." Another said that he was suffering from clinical depression which made him "more disinhibited", i.e. less able to control his reactions.

The judge gave a direction which, as it happens, was in accordance with the majority opinion in Luc Thiet Thuan, [1997] AC 131 although the case does not appear to have cited to him. He told the jury that if they considered that the accused might have been suffering from a depressive illness, they should decide whether a man suffering from such illness, but with a reasonable man's powers of self-control, might have responded to McCullagh's behaviour by stabbing him to death. The fact that the depressive illness may have reduced Smith's own powers of self-control was "neither here nor there" and should not be taken into account.

In Reg. v. Campbell [1997] 1 Cr App R 199 the Court of Appeal considered the majority opinion in Luc Thiet Thuan v. The Queen [1997] AC 131 and held that, unless your Lordships' House decided otherwise, it would continue to follow its earlier decisions and the minority opinion of Lord Steyn. In the Court of Appeal in the present case Potts J. gave a careful judgment explaining why he considered that those decisions were correct. The court therefore allowed the appeal and substituted a verdict of manslaughter. But in view of the state of the authorities it gave leave to appeal and certified the following point of law of general public importance:

4. The historical background.

My Lords, it is impossible to read even a selection of the extensive modern literature on provocation without coming to the conclusion that the concept has serious logical and moral flaws. But your Lordships must take the law as it stands. Whatever your decision in this case, the result is not likely to be wholly satisfactory. The doctrine of provocation has always been described as a concession to human frailty and the law illustrates Kant's dictum that, from the crooked timber of humanity, nothing completely straight can be made. Nevertheless, I shall suggest to your Lordships that this appeal offers an opportunity, within the constraints imposed by history and by Parliament, to make some serviceable improvements.

The researches of Dr. Horder (Provocation and Responsibility, (1992)) show that although the doctrine has much earlier roots, it emerged in recognisably modern form in the late 17th and early 18th centuries. It comes from a world of Restoration gallantry in which gentlemen habitually carried lethal weapons, acted in accordance with a code of honour which required insult to be personally avenged by instant angry retaliation and in which the mandatory penalty for premeditated murder was death. To show anger "in hot blood" for a proper reason by an appropriate response was not merely permissible but the badge of a man of honour. The human frailty to which the defence of provocation made allowance was the possibility that the man of honour might overreact and kill when a lesser retaliation would have been appropriate. Provided that he did not grossly overreact in the extent or manner of his retaliation, the offence would be manslaughter and execution avoided.

The situations which were considered to be proper occasions for anger reflected the code of honour of the time. The first full judicial discussion dates from the reign of Queen Anne. In Reg. v. Mawgridge (1707) Keil. 119, a guest of the Lieutenant of the Tower of London quarrelled with his host over a woman, threw a bottle of wine at his head and then ran him through with a sword. The case was described by Holt C.J. as being "of great expectation" and was argued before all the judges. The court listed four categories of case which were "by general consent" allowed to be sufficient provocations. The first was the quarrel which escalated from words to physical assault ("by pulling him by the nose, or filliping upon the forehead":) If the assaulted party drew his sword and immediately slew the other, it would be "but manslaughter." The second was a quarrel in which a friend of the person assaulted joined in and gave the deadly blow. The third was where someone took the part of a fellow-citizen who was being "injuriously treated" And the fourth was killing a man in the act of adultery with one's wife ("for jealousy is the rage of man and adultery is the highest invasion of property.")

The 19th century judges had to adapt this law to a society of Victorian middle-class propriety. They changed it in two ways. First, they generalised the specific situations which the old law had regarded as sufficient provocation into a rule that whatever the alleged provocation, the response had to be "reasonable." In Reg. v. Kirkham (1837) 8 C. & P. 115, 119 Coleridge J. told the jury that "though the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being, and requires that he should exercise a reasonable controul over his passions." The "reasonable man", as a test of the appropriate response, first appeared in Reg. v. Welsh (1869) 11 Cox C.C. 336, 339 in which Keating J. said that provocation would be sufficient if it was "something which might naturally cause an ordinary and reasonably minded man to lose his self-control and commit such an act."

The second change was to shift the emphasis of the law from the question of whether the angry retaliation by the accused, though excessive, was in principle justified, to a consideration of whether the accused had lost his self-control. The Restoration view was that anger was right and proper. A killing "in hot blood" was rational behaviour which, on account of emotional incontinence, had gone too far. But the nineteenth century judges preferred to look upon provocation as something which temporarily deprived the accused of his reason. As they knew virtually nothing about how the mind works or the relationship between emotion and rationality, they described the process in an equestrian metaphor drawn from Descartes. The emotions were depicted as an unruly horse and the reason as its rider who might, upon provocation, lose control. So in Reg. v. Hayward (1833) 6 C. & P. 157, 159 Tindal C.J. said that the question was whether the provocation was so recent and strong that the prisoner was for the moment not "master of his own understanding" or whether "there had been time for the blood to cool and for reason to resume its seat." Modern neurology has cast considerable doubt upon the accuracy of the metaphor (see Antonio Damasio, Descartes' Error (1996)) but the general concept of loss of self-control probably presents little difficulty to juries.

My Lords, both of these changes are reflected in the common law as it was settled in Mancini [1942] A.C.1 and summarised by Devlin J. in Duffy [1949] 1 All E.R. 932. They have caused problems in the modern law and I shall return to them when I have discussed the way the law was reformed by the Homicide Act 1957.

5. Proposals for reform.

The Royal Commission on Capital Punishment, (1953) (Cmd. 8932) which reported in September 1953, before Bedder v. Director of Public Prosecutions [1954] 1 W.L.R. 1119 was decided, considered the law of provocation. It noted (at para. 134) that the scope for alleviating the act of killing on the ground of provocation had been steadily limited by appellate courts, particularly by the concept of the impersonal reasonable man, but that "the greater severity of the law has been tempered by leniency in its application."

This state of affairs was, in the view of the Commission (at para. 144), attributable to the single mandatory sentence for murder, which at that time was death.

My Lords, the force of this criticism of the rigid impersonality of the "reasonable man" test is only slightly reduced by the fact that the mandatory sentence for murder is now life imprisonment. It does not follow, however, that the abolition of the mandatory sentence would make the defence superfluous. It might still be thought desirable to allow the jury to decide whether provocation was a reason why the killing did not deserve the degree of moral condemnation and severity of sentence associated with the crime of murder: see paras. 80-83 of the Report of the House of Lords Select Committee on Murder and Life Imprisonment (H.L. Paper 78-I Session 1988-89). Why provocation should be the only ground upon which the jury should be allowed to express a moral judgment of this kind is a difficult question which would take me too far from my present purpose.

The Royal Commission on Capital Punishment concluded (at para. 145) that it had no doubt that if the criterion of the reasonable man was strictly applied "it would be too harsh in its application." But in practice -"the courts not infrequently give weight to factors personal to the prisoner in considering a plea of provocation."

The Home Secretary also took such matters into account in commuting death sentences. So the Commission made no recommendation for change. But it did recommend (at paras. 151-152) that the rule that words could never constititute provocation should be abolished: "the nature (as distinct from the degree) of provocation should be immaterial." The issue should be left to the jury, which:

6. The construction of section 3.

As I have already said, the issue in Camplin [1978] AC 705 was whether, in addition to the two express changes in the law made by the statute concerning the provinces of judge and jury and the status of words as provocation, there was by necessary implication a change in the concept of the reasonable man as formulated in Bedder [1954] 1 W.L.R. 1119. I shall in due course analyse the answer which the House gave to that question. But before doing so, I shall consider what seems to me, apart from authority, to have been the effect of the Act.

My Lords, if one reads the debates touching upon this subject in your Lordships House during the passage of the bill, there can be no doubt that Lord Kilmuir, the Lord Chancellor, was of opinion that the clause made no change in the concept of the reasonable man. That merely shows how unhelpful such debates often are as a guide to construction. Lord Kilmuir had not thought through the consequences of the changes made by the section in the way in which the House had to do in Camplin. If one approaches the question of construction in the orthodox way, namely by considering the language of the section against the background of the common law of provocation, one has to conclude that the concept of the reasonable man as a touchstone of the objective element could not have been intended to stay the same.

The reasons are to be found in both the other changes expressly made by the section. The first, namely the admission of words as a legitimate source of provocation, I have already mentioned. It was this reason which received the main emphasis in Camplin. But the other change, in the respective roles of judge and jury, was equally important. The Royal Commission, it will be remembered, said (at para. 134) that a change in the law was unnecessary because juries, sometimes in the face of the judge's directions on the law, returned verdicts of manslaughter in cases in which justice appeared to require a concession to human frailty. That is to say, juries arrived at verdicts in favour of the accused which were contrary to law. The traditional way in which judges attempt to deflect the jury from a perverse verdict of this kind is to withdraw the issue. But section 3 was intended to deprive the judge of even this method of control. The jury was to be sovereign and have the power in theory as well as in practice to decide whether the objective element was satisfied.

I do not think it possible to attribute to Parliament, in making this change, any intention other than to legitimate the relaxation of the old law in those cases in which justice appeared to require it and to allow the jury in good conscience to arrive at a verdict which previously would have been perverse. In other words, the jury was given a normative as well as a fact-finding function. They were to determine not merely whether the behaviour of the accused complied with some legal standard but could determine for themselves what the standard in the particular case should be. In this way they could, as the Royal Commission said, "give weight to factors personal to the prisoner" in cases in which it appeared unjust not to do so.

It follows, in my opinion, that it would not be consistent with section 3 for the judge to tell the jury as a matter of law that they should ignore any factor or characteristic of the accused in deciding whether the objective element of provocation had been satisfied. That would be to trespass upon their province. In a case in which the jury might consider that only by virtue of that characteristic was the act in question sufficiently provocative, the effect of such a direction would be to withdraw the issue of provocation altogether and this would be contrary to the terms of section 3.

If, therefore, the purpose of section 3 was to legitimate the normative role of the jury and free their consciences from the burden of having to give a perverse verdict in order to do justice, it must have had a corresponding effect upon the nature of the directions they were to be given by the judge. It is inconceivable that he was intended to instruct them according to the letter of the old law, in the expectation or even the hope that in an appropriate case his directions would be ignored. It meant, as I have said, that he could no longer tell them that they were obliged as a matter of law to exclude "factors personal to the prisoner" from their consideration. But that did not mean that he was required to leave the jury at large and without any assistance in the exercise of their normative role. He could tell the jury that the doctrine of provocation included the principle of objectivity and that they should have regard to that principle in deciding whether the act in question was sufficiently provocative to be acceptable as a partial excuse.

The radical change which the Act made in the role of judge and jury was not something which had been recommended by the Royal Commission. Their view was that, apart from removing any restrictions on the acts which could amount to provocation, the law should stay the same. It is interesting however to notice that something very similar to section 3 had been recommended a century earlier by the Criminal Law Commissioners in their Second Report of 1846. The Commissioners said (at p. 26):

ordinary

(For the subsequent fate of this proposal, see Professor K.J.M. Smith's book, Lawyers, Legislators and Theorists (1998) at p. 236-238).

7. D.P.P. v. Camplin [1978] AC 705.

The Court of Appeal in Camplin held that section 3 had made no change in the concept of the reasonable man and that it was still bound by Bedder [1954] 1 W.L.R. 1119. But it distinguished that case on the ground that impotence was an abnormal characteristic, whereas nothing could be more normal than to be a boy of 15. As Bridge L.J. said, ([1978] 1 Q.B., 261).

The jury ought therefore to have been directed to consider whether the provocation was enough to make a reasonable person of the same age as the defendant behave as he did.

In the House of Lords Lord Diplock, with whom Lords Fraser of Tullybelton and Lord Scarman agreed, gave the leading judgment. Lord Diplock drew attention to the express changes which section 3 made to the nature of a provocative act and to the role of judge and jury. He noted (at [1978] AC 705, 716) that the "reasonable man" had been preserved by the Act but said that it "falls to be applied now in the context of a law of provocation that is significantly different from what it was before the Act was passed." He pointed out, at p. 717, that:

It would stultify this change in the law if the jury could not take into account "all those factors which in their opinion would affect the gravity of taunts or insults when applied to the person to whom they are addressed."

So far, the reasoning is concerned solely with the relevance of the characteristics or circumstances of the accused to the gravity of the provocation. But the actual facts in Camplin were not primarily concerned with a characteristic with affected the gravity of the provocation. It is true that the gravity of the alleged taunts and sexual abuse may have been affected by the accused's consciousness of his physical and intellectual inferiority in relation to the deceased. But the main case for the defence was that a 15-year-old boy could not be expected to have the same powers of self-control as an adult. Lord Diplock acknowledged at pp. 717-718, that:

This is a most important passage and I invite your Lordships' attention to the following points:

(1) Lord Diplock says that youth may be taken into account because the principle of compassion to human infirmity, as a jury drawing on their experience may apply it, requires one to do so. He does not say that the same principle of compassion is incapable of applying to any other characteristics which a jury might on similar grounds think should be taken into account. It would have been easy for him to have said that youth was for this purpose unique.

(2) Lord Diplock expressly rejects the distinction between the effect of age on the gravity of the provocation and on the power of self-control on the grounds that it is "of too great nicety" for application by a jury. Again, there is nothing to suggest that this comment is not equally true of other characteristics. Since Camplin, there is a great deal of material which demonstrates that Lord Diplock's scepticism about whether the distinction could be made to work in practice was well founded.

(3) If age were to be the only case in which a particular characteristic could be taken into account as relevant to the expected power of self-control, it would be necessary to explain why it should be so singled out. The High Court of Australia, in Stingel v. The Queen (1990) 171 C.L.R. 312, 330, said that it was because age is a normal characteristic: "the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness:" This explanation was embraced by Lord Goff of Chieveley in Luc Thiet Thuan v. The Queen [1997] AC 131, 140. It had, as I have said, been relied upon in Camplin by the Court of Appeal to distinguish Bedder. But the distinction between normal and abnormal characteristics was expressly rejected by Lord Diplock. He said (at p. 718) that:

Bedder

My Lords, the important passage which I have cited from Lord Diplock's speech provides in my view no support for the theory, widely advanced in the literature, that he was making a clear distinction between characteristics relevant to the gravity of the provocation and characteristics relevant to the power of self-control, with age (and possibly sex) as arbitrary exceptions which could be taken into account for the latter purpose. This interpretation depends principally upon what Lord Diplock described as "a proper direction to the jury" which he gave at the end of his speech at p. 718:

The references to age and sex have been taken to mean that in all cases these are the only matters which should be mentioned as relevant to the question of self-control. It seems to me clear, however, that Lord Diplock was framing a suitable direction for a case like Camplin [1978] AC 705 and not a one-size-fits-all direction for every case of provocation. A jury would be puzzled about why they were being asked to pay particular attention to the age and sex of the defendant if he was an ordinary adult. A number of writers and judges have thought that Lord Diplock was wrong to include the sex of the accused (see for example, Stingel v. The Queen (1990) 171 C.L.R. 312, 331) and if the direction had been intended to be of general application, I would agree. But in my view Lord Diplock was only drawing attention to the fact that the hormonal development of male adolescents is different from that of females.

Finally, my Lords, I draw attention to the concluding sentence of Lord Diplock's speech, in which he summed up why he thought it would be wrong to direct the jury that they were not entitled to take into account the youth of the accused. It was because:

This, in my view, goes to the heart of the matter and is in accordance with the analysis of the effect of section 3 which I have made earlier in my speech. The jury is entitled to act upon its own opinion of whether the objective element of provocation has been satisfied and the judge is not entitled to tell them that for this purpose the law requires them to exclude from consideration any of the circumstances or characteristics of the accused.

8. The gravity of provocation/self-control distinction.

Although D.P.P. v. Camplin [1978] AC 705 does not in my opinion provide authoritative support for the distinction between gravity of provocation and powers of self-control, it has been adopted in Australia (Stingel v. The Queen (1990) 171 C.L.R. 312) New Zealand (Reg. v. Campbell [1997] 1 N.Z.L.R. 16 and Reg. v. Rongonui (Court of Appeal, 13 April 2000, unreported); Canada (Reg. v. Hill [1986] 1 S.C.R. 313) and by the Privy Council for Hong Kong (Luc Thiet Thuan v. The Queen [1997] AC 131). It also has a good deal of academic support: see in particular Professor Ashworth's influential article "The Doctrine of Provocation" [1976] C.L.J. 292-320, Jeremy Horder, "Between Provocation and Diminished Responsibility" (1999) 2 K.C.L.J. 143-166 and Professor M.J. Allen, "Provocation's Reasonable Man: A Plea for Self-Control" [2000] Journal of Criminal Law 216-244. It must therefore be considered on its own merits.

The theoretical basis for the distinction is that provocation is a defence for people who are, as Professor Ashworth put it, "in a broad sense mentally normal:" see [1976] C.L.J. at p. 312. If they claim that they had abnormal characteristics which reduced their powers of self-control, they should plead diminished responsibility. There is a clear philosophical distinction between a claim that an act was at least partially excused as normal behaviour in response to external circumstances and a claim that the actor had mental characteristics which prevented him from behaving normally: see Sir Peter Strawson, Freedom and Resentment, in Free Will (Watson, ed. 1982) at pp. 64-67.

The difficulty about the practical application of this distinction in the law of provocation is that in many cases the two forms of claim are inextricably muddled up with each other. A good example is the recent New Zealand case of Reg. v. Rongonui (Court of Appeal, 13 April 2000, unreported). The accused was a woman with a history of violence against her, suffering from post-traumatic stress disorder. The alleged provocation was that a neighbour she was visiting to ask for help in babysitting her children had produced a knife - not in a threatening way, but sufficient to make her lose control of herself, seize the knife and stab the neighbour to death. The Court of Appeal agreed that it was very difficult in such a case to distinguish between the gravity of the provocation (the accused's previous experience of violence making the mere production of a knife a graver provocation than it would be to someone who had led a more sheltered life) and the accused's capacity for self-control which had been affected by the psychological stress of the violence she had suffered. Tipping J., giving one of the majority judgments which held that the New Zealand statute on provocation (section 169 of the Crimes Act 1961) mandated the application of the distinction, said that it required "mental gymnastics." Thomas J., who thought that the statute did not have to be construed so rigidly, said that most trial judges had seen:

Professor Stanley Yeo, in his recent book Unrestrained Killings and the Law (1998) at p. 61 points out that the reason why jurors find the distinction so difficult is that it:

Besides these practical difficulties in explaining the distinction to the jury, I think it is wrong to assume that there is a neat dichotomy between the "ordinary person" contemplated by the law of provocation and the "abnormal person" contemplated by the law of diminished responsibility. The Act of 1957 made a miscellany of changes of the law of homicide which can hardly be described as amounting to a coherent and interlocking scheme. Diminished responsibility as defined in section 2 ("such abnormality of mind . . . as substantially impaired his mental responsibility for his acts and omissions . . .") is a general defence which can apply whatever the circumstances of the killing and was introduced because of what was regarded as the undue strictness of the defence of insanity. Provocation is a defence which depends upon the circumstances of the killing and section 3 was introduced, as I have suggested, to legitimate the consideration by juries of "factors personal to the prisoner." If one asks whether Parliament contemplated that there might be an overlap between these two defences, I think that the realistic answer is that no one gave the matter a thought. But the possibility of overlap seems to me to follow inevitably from consigning the whole of the objective element in provocation to the jury. If the jury cannot be told that the law requires characteristics which could found a defence of diminished responsibility to be ignored in relation to the defence of provocation, there is no point in claiming that the defences are mutually exclusive.

There are in practice bound to be cases in which the accused will not be suffering from "abnormality of mind" within the meaning of section 2 ("a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal": Reg. v. Byrne [1960] 2 Q.B. 396, 403) but will nevertheless have mental characteristics (temporary or permanent) which the jury might think should be taken into account for the purposes of the provocation defence. The boundary between the normal and abnormal is very often a matter of opinion. Some people are entirely normal in most respects and behave unusually in others. There are people (such as battered wives) who would reject any suggestion that they were "different from ordinary human beings" but have undergone experiences which, without any fault or defect of character on their part, have affected their powers of self-control. In such cases the law now recognises that the emotions which may cause loss of self-control are not confined to anger but may include fear and despair. Professor Ashworth, who argued in 1976 that diminished responsibility and provocation were logically mutually exclusive, was cautious enough to say ("The Doctrine of Provocation"[1976] C.L.J. 292, 314) that it was "difficult to shed all one's misgivings about whether the law actually operates in this way." I think not only that this scepticism was justified but also that section 3 prevents the judges from trying to force cases into logical dichotomies.

There is however one really serious argument in favour of the distinction between characteristics affecting the gravity of the provocation and characteristics affecting the power of self-control. This is the claim that, despite all its difficulties of application, it is the only way to hold the line against complete erosion of the objective element in provocation. The purpose of the objective element in provocation is to mark the distinction between (partially) excusable and inexcusable loss of self-control. As Lord Diplock said in D.P.P. v. Camplin [1978] AC 705, 717, the conduct of the accused should be measured against "such powers of self-control as everyone is entitled to expect that his fellow citizens will exercise in society as it is today." If there is no limit to the characteristics which can be taken into account, the fact that the accused lost self-control will show that he is a person liable in such circumstances to lose his self-control. The objective element will have disappeared completely.

My Lords, I share the concern that this should not happen. For the protection of the public, the law should continue to insist that people must exercise self-control. A person who flies into a murderous rage when he is crossed, thwarted or disappointed in the vicissitudes of life should not be able to rely upon his anti-social propensity as even a partial excuse for killing. In Stingel v. The Queen (1990) 171 C.L.R. 312, for example, the accused was obsessively infatuated with a woman who had terminated their relationship. He became a stalker, following her about. She obtained a court order restraining him from approaching her. One evening after a party he found the woman in a car with another man. According to his own account, they were having sex. He went back to his own car, fetched a butcher's knife and came back and killed the man. His evidence conformed to the standard narrative which the legal requirement of "loss of control" imposes on such defences:

The High Court of Australia held that the judge was right to withdraw the issue of provocation from the jury on the ground that such conduct could not raise even a reasonable doubt as to whether the objective element in the defence had been satisfied. I respectfully agree. 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 to this policy by withdrawing 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.

9. The English cases.

The first important English case after D.P.P. v. Camplin [1978] AC 705 was the judgment of Lord Lane C.J. in Reg. v. Newell (1980) 71 Cr.App.R.331. He interpreted section 3 as meaning that the jury can be directed to take into account personal characteristics of the accused in relation to both the gravity of the provocation and the degree of self-control which could reasonably have been expected. It is true, as Lord Goff of Chieveley pointed out in Luc Thiet Thuan v. The Queen [1997] AC 131, 141-144, the Lord Chief Justice adopted the construction which had been given to a somewhat different statute in New Zealand. He approved a passage in Reg. v. McGregor [1962] N.Z.L.R. 1069 in which North J. had said:

Reg. v. Rongonui

The construction adopted in Newell 71 Cr.App.R. 331 was followed by Lord Taylor of Gosforth C.J. in Reg. v. Ahluwalia [1992] 4 All ER 889 , a case of a battered wife. He said that characteristics relating to the "mental state or personality of an individual" such as the fact that a battered wife was suffering from post-traumatic stress disorder, could be taken into account. It is true that he recorded counsel for the appellant as having described this as a characteristic which the jury "might think might affect the gravity of the provocation". The same comment may be made about Lord Taylor's later judgment in Reg. v. Dryden [1995] 4 All E.R. 987. In that case the accused was convicted of murder after he had shot and killed a planning officer who was engaged in demolishing his bungalow pursuant to an enforcement notice. There was psychiatric evidence that the accused had developed an obsession about his planning problems. The Court of Appeal said that the obsessiveness and eccentricity of the defendant should have been left to the jury as "mental characteristics" which they should take into account. In neither case, however, did Lord Taylor suggest that the jury should have been directed to have regard to these characteristics only insofar as they might have affected the gravity of the provocation and not insofar as they may have affected the accused's power of self-control. No doubt this omission was for the very good reason that, on the facts of both cases, no jury would have understood what such a distinction meant.

Finally, in Reg. v. Campbell [1997] 1 C.App.R. 199 Lord Bingham of Cornhill C.J. affirmed the principle of the earlier decisions, which he said represented "a judicial response, born of everyday experience in criminal trials up and down the country, as to what fairness seems to require."

My Lords, in the face of these views of three successive Lord Chief Justices, I would be most reluctant to advise your Lordships to turn back such a strong current of authority unless it was clearly inconsistent with the statute. But I do not think it is. On the contrary, it seems to me to reflect a realistic appreciation of what the statute has done.

10. Guiding the jury.

My Lords, I think that some of the concern about the recent trend of authority in the English Court of Appeal has been due to the assumption that unless the judge can direct the jury that certain characteristics of the accused are legally irrelevant to the objective element in the defence, the jury may receive the impression that the law actually requires them to take such matters into account. The effect would be to encourage juries to find provocation on inappropriate grounds. Obviously, my Lords, there is always the risk that a jury may do so. That is the risk which Parliament took when it gave the jury an unfettered right to give effect to its own opinion on the objective element. But it considered that risk less likely to cause injustice than to confine the jury within the rules of law which had been developed about the notional characteristics of the reasonable man. In any case, I think that much can be done to reduce that risk if judges guide juries on this issue in a way which fully takes into account the difference which section 3 has made to their respective roles.

Before 1957 the judge had to direct the jury as to whether, if they found that some act had caused the accused to lose his self-control, that act was "capable" of amounting to provocation. It would be so capable if the judge considered that a rational jury could find that it satisfied the objective element. If he did not, he would withdraw the issue by telling the jury that there was no evidence upon which they could properly find that the accused had acted under provocation. If, therefore, the judge left the issue to the jury, he would do so in terms which conveyed to them that they could rationally find that the objective element was satisfied.

The effect of section 3 is that once the judge has ruled that there is evidence upon which the jury can find that something caused the accused to lose self-control (compare Reg. v. Acott [1997] 1 WLR 306), he cannot tell the jury that the act in question was incapable of amounting to provocation. But that no longer involves any decision by the judge that it would be rational so to decide. For example, in Reg. v. Doughty [1986] Cr.App.R. 319 the Court of Appeal held that the judge had been wrong to direct the jury that the crying of 17 day old baby, which had caused its father to kill it by covering its head with cushions and kneeling on them, could not constitute a provocative act. Section 3 said that the jury were entitled to take into account "everything both done and said." I respectfully think that this construction of the Act was correct. But that does not mean that the judge should tell the jury that the crying of the baby was, in the traditional language, capable of amounting to provocation. This would give the jury the impression that the judge thought it would be rational and in accordance with principle to hold that the crying of the baby constituted an acceptable partial excuse for killing it. The point about section 3 is that it no longer matters whether the judge thinks so or not. He should therefore be able simply to tell the jury that the question of whether such behaviour fell below the standard which should reasonably have been expected of the accused was entirely a matter for them. He should not be obliged to let the jury imagine that the law now regards anything whatever which caused loss of self-control (whether an external event or a personal characteristic of the accused) as necessarily being an acceptable reason for loss of self-control.

11. The reasonable man.

The main obstacle to directing the jury in a way which does not give such a false impression is the highly artificial way in which courts and writers have attempted to marry two discordant ideas: first, the old formula that the provocation must have been such as to cause a "reasonable man" to act in the same way as the accused and, secondly, the rule in section 3 that no circumstances or characteristics should be excluded from the consideration of the jury. They have done so by telling the jury that certain characteristics are to be "attributed" to the reasonable man. By such a combination, they have produced monsters like the reasonable obsessive, the reasonable depressive alcoholic and even (with all respect to the explanations of Lord Goff of Chieveley in Reg. v. Morhall [1996] 1 A.C. 90, 98) the reasonable glue sniffer. Nor does it elucidate matters to substitute "ordinary" for "reasonable." Quite apart from the question of whether the jury can understand what such concepts mean, it is bound to suggest to them that obsession, alcoholism and so forth are not merely matters which they are entitled in law to take into account but that, being "attributed" to the reasonable man, they are qualities for which allowances must be made.

So, for example, in Reg. v. Humphreys [1995] 4 All E.R. 1008 there was a good deal of discussion as to whether "attention seeking" and "immaturity" were "eligible characteristics" in the sense that they were to be attributed to (in that case) the reasonable woman. The Court of Appeal decided that they were. Similarly in Reg. v. Dryden [1995] 4 All E.R. 987, which I have already mentioned, the question was framed as being whether the obsessiveness and eccentricity of the defendant were "mental characteristics" which the jury should attribute to the reasonable man. Professor M. J. Allen, in the article to which I have referred in [2000] Journal of Criminal Law 216, 239, says with some force that this decision, "endorsing obsession as a characteristic to attribute to the reasonable man should sound an alarm bell for all sexual partners." If Dryden's obsession could be attributed to "the reasonable man," why not Stingel's?

My Lords, the concept of the "reasonable man" has never been more than a way of explaining the law to a jury; an anthropomorphic image to convey to them, with a suitable degree of vividness, the legal principle that even under provocation, people must conform to an objective standard of behaviour which society is entitled to expect: see Lord Diplock in Camplin [1978] AC 705, 714. In referring to "the reasonable man" section 3 invokes that standard. But I do not think that it was intended to require judges always to use that particular image, even in cases in which its use is more likely to confuse than illuminate. When Keating J. in Reg. v. Welsh (1869) 11 Cox C.C. 336, 339 borrowed the mot juste which Baron Alderson had used in Blyth v. Birmingham Waterworks (1856) 11 Exch 781, 784 to define negligence, he did not imagine that he was changing the law. He merely thought he had hit upon a felicitous way of explaining it. Whether he was right is perhaps questionable. Even before the Act of 1957, there had been expressions of doubt about the extent to which it really was a helpful way to explain the notion of objectivity in the particular context of provocation. The jury may have some difficulty with the notion that the "reasonable man" will, even under severe provocation, kill someone else. But, my Lords, whatever the force of the earlier criticisms, the value of the image has been hopelessly compromised by the Act of 1957. This may not have been foreseen, just as many did not foresee the effect which the Act would have upon the concept of the reasonable man and the abandonment in Camplin [1978] AC 705 of the law laid down in Mancini [1941] A.C.1 and Bedder [1954] 1 W.L.R. 1119. But it seems to me now, since Camplin, 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 welded onto the concept of the reasonable man. I do not find it surprising that nine judges who gave written evidence to the House of Lords Select Committee on Murder and Life Imprisonment (HL Paper 78-III Session 1988-89) said that the reasonable man test was "logically unworkable, or [rendered] the defence almost ineffective if it were strictly applied by juries."

My Lords, I do emphasise that what has been rendered unworkable is not the principle of objectivity which (subject to the changes noted in Camplin) section 3 was plainly intended to preserve, but a particular way of explaining it. I am not suggesting that your Lordships should in any way depart from the legal principle embodied in section 3 but only that the principle should be expounded in clear language rather than by the use of an opaque formula.

In my opinion, therefore, 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 or 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] 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] A.C. 588, 601, "as society advances, it ought to call for a higher measure of self-control."

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.

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 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.

12. The burden of proof.

The burden is upon the prosecution to disprove provocation. This means that the prosecution must satisfy the jury that a version of the facts in which the accused was provoked could not reasonably be true. But the decision as to whether, having regard to the objective principle, those facts should count as sufficient provocation to reduce the offence to manslaughter has nothing to do with the burden of proof. The jury either think it does or they do not. It is irrelevant that they may think that a different jury could have taken a different view.

13. Conclusion.

In my opinion 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." They should have been told that whether they took it into account in relation to the question of whether the behaviour of the accused had measured up to the standard of self-control which ought reasonably to have been expected of him was a matter for them to decide. For the above reasons and those given by my noble and learned friends Lord Slynn of Hadley and Lord Clyde, I would dismiss the appeal.

LORD CLYDE

My Lords,

On 16 November 1996 the respondent killed James McCullagh in the course of a heated argument. There was evidence that the respondent was suffering from a depressive illness and that that illness rendered him more disinhibited than would otherwise have been the case. His defence included submissions on provocation and diminished responsibility but it is only the matter of provocation which is raised in this appeal. More particularly the question in this appeal concerns the application of section 3 of the Homicide Act 1957 to the factual circumstances of the case.

Section 3 provides:

For present purposes it is to be noted that the section did not re-state the law of provocation, but subject to what it contained left the matter to rest upon the common law. One important change was the express recognition that provocation could be constituted by words alone, or by words along with acts. In addition to that it regulated the respective functions of the judge and the jury. The earlier part of the section describes the responsibility of the judge. It is for the judge to determine if there is any evidence upon which the jury can find that the accused was provoked to lose his self-control. The evidence may be slender but if it is sufficient for the jury to make the finding then the latter part of the section comes into play. The latter part of the section requires that it is for the jury, not the judge, to decide whether the provocation was enough to make a reasonable man do as the accused did. The judge is not entitled to withdraw the matter of provocation from the jury on account of any view which the judge may take on the reasonableness of the accused's behaviour. If there is evidence of the fact that the accused was provoked to lose his self control the reasonableness of the accused's action is matter for the jury.

It is proper to notice that section 2 of the Act introduced a defence of diminished responsibility into English law whereby a conviction for manslaughter could be returned instead of a conviction for murder. The scope of that provision is not for consideration in the present case, but it is not to be supposed that there no room for some degree of overlap between the availability of both section 2 and section 3 in particular circumstances. Both are mitigating factors in cases of homicide. The one requires an abnormality of mind such as substantially impairs the accused's mental responsibility. The other requires the existence of provocative acts or words and a consequent temporary loss of self control in the heat of the moment. But circumstances could possibly occur where all these factors could be identified. But the scope of the common law defence of provocation, as qualified by the provisions of section 3, should not be determined by the arrival of the distinct statutory defence of diminished responsibility. Section 3 did not re-define the defence of provocation and the fact that by section 2 the distinct defence of diminished responsibility due to a mental abnormality was introduced should not be allowed to alter the scope or substance of the defence of provocation or colour one's approach to an understanding of it. The defence of diminished responsibility had its origins in Scottish criminal law but the present case is not concerned with that defence. So far as provocation is concerned some care may be required in the invocation of older Scottish precedent in the interpretation of the English statute. Certainly in the older law there were distinct differences in the approach to provocation from those recognised in England. Hume (Commentaries on the Law of Scotland respecting Crimes, 3rd ed. (1844), pp. 247 and 250) points out expressly that while a pull by the nose or a fillip on the forehead may be sufficient provocation in England, such a rule was quite unsuitable to Scottish practice which required the infliction of a much more severe injury. It has not been suggested that the law of Scotland can provide any direct assistance upon the critical point at issue in this case (see Professor Gordon, Criminal Law, 2nd ed. 25-37 and the Stair Encyclopaedia, vol 7 para 275).

It is the reference in section 3 to a "reasonable man" which has given rise to the problem in the present appeal. The particular problem can be expressed by asking whether the depressive illness from which the respondent was said to be suffering is to be attributed to the reasonable man. The Court of Appeal has held that it is something which in the present case should be taken into account. The appellant argues for a more objective approach which would exclude such a characteristic.

Since section 3 has not provided a complete statement of the law of provocation but has simply added some qualifications to the existing position it is necessary to return initially to the common law. Provocation was recognised as a factor which could operate to reduce murder to manslaughter for a very considerable period before the Act of 1957. Its purpose was to enable the jury to take account of the plight of an individual accused where his particular situation called for relief from the rigour of the law. It was prompted by, to use the language of Tindal C.J. in Reg. v. Hayward (1833) 6 C. & P. 154, 159, "compassion to human infirmity." Such a quality is capable of varying in its intensity according to the changing views of society and a greater understanding of human behaviour and of the pressures and stresses under which people may be driven to act. The law recognises that, as Parke B. put it in Reg. v. Thomas (1837) 7 C. & P. 817, 819 "anger is a passion to which good and bad men are both subject," and so the law makes allowance for a case where passion has temporarily deprived a person of his or her reasoning facilities. To quote from the summing up by Coleridge J. in Reg. v. William Kirkham (1837) 8 C. & P. 115, 117:

In principle it is not easy to see how the plight of the individual accused can appropriately be taken into account if the standard of his conduct is to be tested by reference to an artificial concept remote from his own situation. The idea of provocation was no doubt born and bred in the context of a system which admitted capital punishment. That certainly added an edge to anxiety to secure that a fair and just treatment was afforded in cases of homicide. But the need for compassion may still hold where a distinction is preserved between the disposal for cases of murder and cases of manslaughter, and may indeed remain even if a formal distinction was removed.

One essential element for the availability of a plea of provocation has always been that the act be done in the heat of passion fired by the provocation before reason has returned. If, as by the passage of time, an initial passion has cooled and self control has been regained, then the necessary connection between the provocation and the homicide which is alleged to have been prompted by it will be available to support the defence. It is of interest in the context of the present case to note that in considering whether the time was sufficient for reason to have returned account has been taken of the diminished intelligence of a particular accused. In Reg. v. Lynch (1832) 5 C. & P. 324, 325 Lord Tenterden in summing up said:

But for present purposes a more important consideration is that there should be a proportionality between the provocation and the response measured by what is acceptable to society. This element was recognised in Reg. v. Kirkham (1837 ) 8 C. & P. 115, 119 where the Coleridge J. observed that

The same concern was expressed in Reg. v. Oneby (1727) 2 Ld. Raym. 1485, 1496, where it was said of anger and passion "which a man ought to keep under and govern." But while society rightly expects that people should keep a rein over their passions, that expectation has to be seen against the realistic context of the variety of natures which mankind comprise. Some may be stoical or insensitive in the face of provocation and for them the problems to which this case gives rise may never occur. Others may require to make a solid conscious effort to restrain themselves in accordance with the requirements of society's expectations, and if they give way where they could and should have exercised a due restraint they may fail to qualify under the extenuation provided by the doctrine of provocation. Others may through no failure or shortcoming of their own be unable to achieve the level of control which could be met by others not similarly circumstanced. Examples of those with a post-natal depression or a personality disorder readily come to mind. It would seem to me unrealistic not to recognise the plight of such cases and refuse the compassion of the law to them.

But if the appellant is correct, it seems to me that there would be a serious risk of injustice being done in some cases where the homicide is due to provocation but the condition of the accused falls short of a mental abnormality. 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 ground 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.

It is in the context of this relationship between the provocation and the homicide that the language of reasonableness has come to be adopted. An appeal to what is reasonable can be used as a test of the credibility of an assertion. The accused who asserts that he killed under provocation may be disbelieved on the ground that no one in his position would reasonably be provoked in the particular circumstances. Here the concept is of evidential significance. But in the context of the present statute the concept of reasonableness is adopted as a point of substance. It is to be used as a standard against which the conduct of the accused is to be measured. Two observations then fall to be made. One is that the use of the language of reasonableness appears to open the way to an analysis of the provocation on the one hand and the response to it on the other. One may talk of the reasonableness of the provocation which triggers the loss of self control and the reasonableness of the response. But the exercise is essentially one of assessing the reasonableness of the relationship between them. There are no variables to be independently assessed in relation to either of the two elements in any given case. The response is always a constant; it is the homicide. The provocation may vary from case to case but the particular substance of it in any given case will be identifiable. It seems to me that the critical question is that of the proportionality between the provocation and the response. The gravity of the provocation, which prompts the loss of self-control, and the reasonableness of the response may both be aspects of the same question. It is useful to recall the language used by Devlin J. in the directions which he gave in Reg. v. Duffy [1949] 1 All E.R. 932, which Lord Goddard quoted in the appeal in that case as providing as good a definition as he had read. In the course of the passage Devlin J. noted two important things. The first was whether there had been time for passion to cool and to regain dominion over the mind. Then he continued:

The second observation is that the reference to reasonableness invites into the discussion the concept of the reasonable man. The idea of reasonableness was developed in Reg. v. Welsh (1869) 11 Cox 336 by Keating J. who applied the concept to provocation, raising the question (at p. 337) "not merely whether there was passion, but whether there was reasonable provocation." The introduction of the reasonable man appears in his summing up where he refers (p. 538) to the possibility of attributing the accused's act to the violence of passion naturally arising from the provocation "and likely to be aroused thereby in the breast of the reasonable man." He later said:

But once the reasonable man was let loose on the law of provocation it became easy to advance to an increasingly objective approach to the matter. That advance can be traced from Welsh through such cases as Rex. v. Alexander [1913] 9 Cr.App.Rep. 139, Rex. v. Lesbini [1914] 3 KB 1116, Rex. v. Mancini [1942] A.C.1, and Holmes v. Director of Public Prosecutions [1946] A.C. 588 to Bedder v. Director of Public Prosecutions [1954] 1 W.L.R. 1119, 1121 where it was affirmed that:

The effect of the accused's impotence upon his mind was not the test; the jury required to consider the effect of the provocation upon a man without the particular physical qualities of the accused. It may be thought that the introduction of the reasonable man to this area of the law has added unnecessary obscurity to what ought to be a matter of relative simplicity; but he has been perpetuated in the formulation of the statutory provision. All the greater care is needed to secure that he does not lead the law into wonderland.

There is then a potential tension between the requirement of society that people should restrain their natural passions and the law's compassion for those who under the stress of provocation temporarily lose their self control. This is not solved by recourse to the concept of the reasonable man. That concept may indeed make the solution the more elusive. At the one extreme a totally subjective approach effectively removes reference to any standard and flies in the face of the statute. At the other extreme the accused may be convicted of murder even although the jury believe that he was so provoked as to have lost his self control, because they think that a reasonable man, who may be someone quite unlike the accused, would not have lose control in such circumstances. When what is at issue is the scale of punishment which should be awarded for his conduct it seems to me unjust that the determination should be governed not by the actual facts relating to the particular accused but by the blind application of an objective standard of good conduct.

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 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.

Much of the debate in the appeal concerned the speeches in the important case of Reg. v. Camplin [1978] AC 705. There are five particular points which I take from that case. First, it was held that since provocation could now consist of words as well as actings any unusual characteristic of the accused which was the object of the provocative taunt had now to be recognised as relevant. So at least to that extent what had been said in Bedder [1954] 1 W.L.R. 1119 required revision. I take this from the passage in the speech of Lord Diplock at p. 717C-F.

Secondly, and more importantly, it is not only in relation to the gravity of the provocation that account may be taken of a relevant characteristic of the accused. Account may also be taken of a relevant characteristic in relation to the accused's power of self control, whether or not the characteristic is the object of the provocation. In Camplin the relevant characteristic was the accused's age. But the provocation was not directed at his youthfulness. Lord Diplock recognised a lack of logic in extending the relevance of the characteristic from the gravity of the provocation to the power of self control, but justified it on two grounds: first, the law's compassion to human infirmity, and second, the excessive difficulty for a jury to make the nice distinction between the relevance of the characteristic for the one purpose and not for the other. This is what I understand is intended by the important passage in Lord Diplock's speech at pp. 717F -718B . It is echoed in the speech of Lord Simon of Glaisdale where he says at p. 727F:

Thirdly, and associated with the point just made, while evidence may be admitted to show the existence of a particular characteristic, evidence is not admissible to show what effect such a characteristic might have on a person's self control or whether the characteristic did in fact have an effect on the self control of the accused in the circumstances of the case. That is left to the good sense of the jury.

Fourthly, the whole authority of the former cases, Mancini [1942] A.C. 1 Holmes [1946] A.C. 588 and Bedder [1954] 1 W.L.R. 1119, should no longer be recognised. As Lord Diplock observed of Bedder [1978] AC 705, 718D:

Fifthly, so far as the "reasonable man" is concerned that is to be understood as referring to the standard of reasonable behaviour expected of a person in the situation of and with the characteristics of the accused. It is here particularly that the context of the facts in Camplin have to be borne in mind. The House in that case was concerned with the problem of the young age of the accused. The precise words used in the suggested direction have to be read in the factual context of the particular case. The intention was not to limit the scope of provocation to the characteristics which featured in that case. The precise problem raised in the present case was not in issue. The policy which historically underlay the introduction of the reference to the "reasonable man" was, as Lord Diplock explained at p. 716, to prevent a person relying upon his own exceptional pugnacity or excitability as an excuse for loss of self control. Lord Simon of Glaisdale echoed that view (at p. 726) adding drunkenness to the list. All these matters may be seen as lying within the limits of a reasonable self control and on that basis they should not be allowed to qualify as mitigating factors. But beyond that it seems to me that the person whom Lord Diplock had in mind when setting out his proposed direction to the jury at p. 718 was a person who was not only of the same sex and age as the accused but also shared such of his or her characteristics as in the view of the jury would affect the gravity of the provocation to that particular person. He went on to explain that the question was not merely whether such a person would in like circumstances be provoked to lose his or her self control but also whether he or she would react to the provocation as the accused did. I do not understand that a distinction is here being suggested between matters affecting the gravity of the provocation and matters affecting self control. If the relevance of the characteristic in question had been limited to the gravity of the provocation the case would not have been decided in the way it was. Consistently with what he had said earlier I consider that the direction is intended to indicate the relevance of the accused's characteristics to his power of self control. As Lord Simon of Glaisdale observed (at p. 727):

From the arguments presented before us it seemed that some assistance might be found in the jurisprudence which has developed in New Zealand. In Camplin Lord Simon of Glaisdale stated (p. 727):

Reg. v. McGregor

Section 169(2) provided:

a

b

In McGregor North J. presented a series of observations on the construction of the section. He noted that it required a fusion of the objective and subjective approaches and sought to resolve that by reference to the limitations to be placed upon the word "characteristics." In discussing that he excluded temporary or transitory factors, excitability or irascibility, and drunkenness. The characteristic must be such "that it can fairly be said that the offender is thereby marked off or distinguished from the ordinary man of the community." He then proceeded to a further point, that there must be "a real connection between the nature of the provocation and the particular characteristic of the offender."

That requirement, which was expressed in what I have referred to as the further point in the judgment, takes no account of the second of the points which I have already noted as arising from Camplion namely the desirability of avoiding the drawing of a distinction between the gravity of the provocation and the power of self control in relation to the relevance of the particular characteristics of the accused and it was that aspect of the observations of North J. which came to be further considered in Reg. v. McCarthy [1992] 2 N.Z.L.R. 550. The passage in North J's judgment in McGregor which was quoted by Cooke J. in McCarthy only begins with what I have referred to as the further point. His criticism is of the necessity to find that the provocation must be "directed at" a particular characteristic. This element only adds an unjustifiable aggravation of the difficulty of applying the section. In that respect it seems to me that Cooke J. was in effect following the guidance given in Camplin. Moreover he expressly stated that (p. 558) that:

a

Later he observed that the question to be answered under section 169(2)(a) is "whether a person with the accused's characteristics other than any lack of the ordinary power of self-control could have reacted in the same way."

However during the course of the preparation of this speech my attention has been drawn to the recent decision of the Court of Appeal in New Zealand in The Queen v. Janine Waiwera Rongonui [13 April 2000] from which I understand that my reading of McCarthy may be incorrect. The majority of the judges in Rongonui adopted a more literal construction of section 162 whereby the special characteristics of the accused are relevant to the gravity of the provocation but not to the accused's self-control. If I have correctly understood the majority view, it appears that Lord Simon of Glaisdale's observation in Camplin on the substantial similarity between the law of England and the statutory provision in New Zealand is no longer apt. This may be an illustration of the danger of seeking assistance in the construction of one statutory provision by reference to another which is in different terms. It is also proper to bear in mind that the New Zealand statute did not include a provision for a defence of diminished responsibility and that may lead to differences in the application of the respective provisions. Examples of what might more readily be seen as falling under section 2 of the Act of 1957 may only be brought in New Zealand as examples of provocation.

The idea expressed in McGregor that the provocation required to be directed at the particular characteristics was taken up in Reg. v. Newell [1980] 71 Cr. App. Rep. 331, but, as Lord Goff of Chieveley warned in Reg. v. Morhall [1996] 1 A.C. 90, 100, regard should now be had to the reservations about that case expressed in McCarthy. Certainly it should now be affirmed that while the fact that a taunt is directed at a particular characteristic is a relevant matter for consideration, provocation is by no means restricted in its scope to such situations. But, looking at the matter more broadly, it seems to me that over the last few years the English courts have followed the guidance of Camplin and the earlier part of the observations in McGregor in the cases where, like the present case, the provocation was not some taunt directed at some particular characteristic of the accused. In Reg. v. Raven [1962] Crim. L. R. 51 the retarded development and low mental age of the accused were held to be relevant considerations in a case of provocation in the form of sexual assaults. In Reg. v. Ahluwalia [1992] 4 All ER 889 the court found no evidence of a post-traumatic stress disorder or battered woman syndrome which might have qualified as a characteristic as defined in McGregor; If there had been "different considerations may have applied." On the evidence there was nothing to support the proposition that the accused was marked off from the ordinary women of the community as having some altered personality or mental state. In Reg. v. Dryden [1995] 4 All E.R. 987 Lord Taylor of Gosforth C.J. followed Camplin and the earlier part of the observations by North J. in McGregor in holding that in the context of loss of self-control the obsessiveness and eccentricity of the accused were characteristics which should have been taken into account. In Reg. v. Thornton (No.2) [1996] 2 All ER 1023 the accused's personality disorder and the effect on her mental make-up of a period of abuse by the deceased were held relevant to the question (p. 1031): "whether the hypothetical reasonable woman possessing the accused's characteristics would have reacted to the provocative conduct so as to do what the appellant did." If we were to allow the present appeal I do not think that we could avoid overturning a well-settled development of the criminal law to say nothing of the decision in Camplin from which the developments have proceeded. I am not persuaded that such a revolution in the law would be justified.

The appellant founds upon the decision of the majority in Luc Thiet Thuan v. The Queen [1997] AC 131. To criticise so recent a decision calls for hesitation as well as courage, but I have come to feel anxiety over the majority view in that case, at least so far as it may be thought to apply in England, in regard especially to three points. First, I am not persuaded that it sufficiently recognises that the decision in Camplin [1978] AC 705 extends beyond the matter of the gravity of the provocation to the matter of self-control. I have already referred to the passage in Lord Diplock's speech at pp. 717-718 and I have already quoted the passage in the speech of Lord Simon of Glaisdale at p 727D . Secondly, while it is right to be cautious of finding assistance in the different terms of a different statute in a different jurisdiction, section 169 of the New Zealand statute was regarded by Lord Simon of Glaisdale as representing the law of England, and it has to be remembered that section 3 of the Act of 1957 is not seeking to define the whole law of provocation for England and Wales so that the case is not one of construing one statute by reference to another, but rather seeking guidance on the developing common law by reference to the attempt in New Zealand to enshrine it in statutory language. Furthermore, as I have already sought to explain, it is only the further part of the observations of North J. which may call for qualification. The earlier passage remains as a useful source of guidance. Thirdly, considerable weight appears to have been placed upon a view expressed by Professor A.J. Ashworth which is quoted at p. 104H-141A of the advice of the majority and which it is suggested may have influenced the decision in Camplin. But the idea that, as distinct from individual peculiarities which bear on the gravity of the provocation, individual peculiarities bearing on the accused's level of self-control should not be taken into account, commendable as that view may have been at the time when Professor Ashworth was writing, seems to me to be contrary to the decision which was taken in Camplin and which I have endeavoured to analyse already. Although the Court of Appeal are bound by their own line of authority and not required to make any choice between it and the decision in Luc, I am reassured by what appears to be a refusal of the Court of Appeal in Reg. v. Campbell [1997] 1 CrAppR 199 and Reg. v. Parker (unreported) 25 February 1997 to be moved to desert the position already established in English law.

I have had the opportunity of reading drafts of the speeches of my noble and learned friends Lord Slynn of Hadley and Lord Hoffmann. I agree with the views which they have expressed.

For the foregoing reasons I would dismiss the appeal.

LORD MILLETT

My Lords,

Diminished responsibility and provocation are both partial defences to a charge of murder. They have the effect of reducing the offence to manslaughter. But there the similarity ends. Diminished responsibility is a statutory defence introduced into English law by section 2 of the Homicide Act 1957. It is available where at the time of the offence the defendant suffered from an abnormality of mind which substantially impaired his mental responsibility for his actions. The burden of establishing the defence rests upon the defendant. This is in accordance with the general principle that the prosecution does not have to prove that the defendant is mentally normal and legally responsible for his actions. By contrast provocation is a common law defence which was developed by the judges and has never been defined by statute, though it was modified by section 3 of the Homicide Act 1957. The defence is available where the defendant's intention to kill or cause grievous bodily harm "arises from sudden passion involving loss of self-control by reason of provocation" per Lord Goddard C.J. in Attorney-General for Ceylon v. Perera [1953] AC 200, 206. It is available to persons of normal mental capacity, and accordingly there is no burden of proof on the defendant; the prosecution must establish the absence of provocation.

Although the defences are distinct, they may of course overlap, for a person with diminished responsibility may be provoked to lose his self-control and react in the same way as any one else. Accordingly, a jury may have to consider both defences, as they did in this case. But they are distinct defences nevertheless, for each has a necessary element which is absent from the other. The defence of diminished responsibility requires proof of diminished responsibility resulting from mental abnormality but not of provocation or loss of self-control. The defence of provocation requires disproof of loss of self-control induced by provocation but not of diminished responsibility or mental abnormality. Their underlying rationales are also very different. In the one case the jury are invited to say: "You can't really call it murder: the poor man wasn't fully responsible for his actions." The defence is the response of a civilised society to inadequacy. In the other, they are typically invited to say: "You can't really call it murder. It was at least partly the victim's fault. Any one of us might have reacted in the same way if we had been in the defendant's shoes." The defence is often described as a concession to human frailty.

But this is a reference to that human frailty to which we are all subject and of which the jury may be expected to take cognisance. It is not a reference to an infirmity peculiar to the accused, but to "that human infirmity which is so general and almost universal as to render it proper to make allowances for it" and "that loss of self-control which is natural to humanity": see the passage cited by my noble and learned friend Lord Hoffmann from the Second Report of the Criminal Law Commissioners of 1846.

My noble and learned friends Lord Hoffmann and Lord Hobhouse of Woodborough have analysed the history of the law of provocation and the authorities in detail, and I do not propose to traverse the ground again. But I would begin by recalling that while it is a necessary condition of the defence of provocation that the accused should have lost his self-control, this has never been sufficient. He must have been provoked to lose his self-control. In other words, it is not enough that he was temporarily not responsible for his actions; his loss of self-control must be attributable to something which is external to himself.

These requirements make up what has been described as the subjective element of the defence. But there is an additional requirement: the provocation must have been sufficient to cause a reasonable man to react in the same way. This is usually described as the objective element. In his monograph Provocation and Responsibility (1992) Dr. Horder explains why it is of central importance in the defence of provocation, but Professor Ashworth (in his influential article in (1976) 35 C.L.J. 292) was the first academic writer to emphasise the link between the objective element and the moral basis of the defence. It goes to the sufficiency of the provocation. Only killings in response to grave provocation merit extenuation.

The need to satisfy the objective element was insisted on long before the Act of 1957, but it had been restrictively interpreted in a way which sometimes unjustly, and even absurdly, deprived an accused of the defence. Section 3 of the Act was enacted to remedy this. It provides that "the question whether the provocation was enough to make a reasonable man do as he did shall be left to the jury" and that "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 had upon a reasonable man."

As Lord Hoffmann observes, section 3 modified the law in two respects. First, if there was evidence on which the jury could properly find that the subjective element was satisfied, the question whether the objective element was satisfied must be left to the jury. Secondly, in determining that question, the jury must take into account "everything both said and done". Any rule of law, such the rule that words alone could not amount to provocation, was abolished. But some objective test of the sufficiency of the provocation was necessary if the requirement that the accused must have been provoked to lose his self-control was to be preserved. Otherwise, loss of self-control alone would be sufficient, for the accused could always say that he was provoked by something. Accordingly the objective element was retained and henceforth provided the sole test of the sufficiency of the provocation. There must be something said or done which the jury considers might provoke a reasonable man to react in the same way as the accused.

The expression "the reasonable man" has a long and respectable ancestry in the law, but its use in section 3 is an unhappy one: (see Reg. v. Camplin [1978] AC 705, 716 where Lord Diplock referred to "this apparently inapt expression"). It is not intended to invoke the concept of reasonable conduct: it can never be reasonable to react to provocation by killing the person responsible. Nor by pleading provocation does the accused claim to have acted reasonably. His case is that he acted unreasonably but only because he was provoked. But while this may not be reasonable it may be understandable, for even normally reasonable people may lose their self-control and react unreasonably if sufficiently provoked. It is this very human characteristic which the defence acknowledges. In this context, therefore, "the reasonable man" simply means a person with ordinary powers of self-control. As Lord Goff of Chieveley explained in Reg. v. Morhall [1996] A.C. 90, 98:

In Camplin [1978] AC 705, 726 Lord Simon of Glaisdale stated that "the reasonable man" in section 3 means "a man of ordinary self-control," and Lord Diplock, at p. 717, said that it means:

In the present case Judge Coombe directed the jury in these terms. The Court of Appeal held that he was wrong to do so. There was evidence that the accused suffered from a depressive illness which reduced his powers of self-control. In these circumstances, the Court of Appeal ruled, he should have directed the jury that in his case "the reasonable man" meant a man with the powers of self-control of a person suffering from such an illness; ie. a person with less than normal powers of self-control.

My Lords, this approach requires the accused to be judged by his own reduced powers of self-control, eliminates the objective element altogether and removes the only standard external to the accused by which the jury may judge the sufficiency of the provocation relied on. By introducing a variable standard of self-control it subverts the moral basis of the defence, and is ultimately incompatible with a requirement that the accused must not only have lost his self-control but have been provoked to lose it; for if anything will do this requirement is illusory. It is also manifestly inconsistent with the terms of section 3. It makes it unnecessary for the jury to answer the question which section 3 requires to be left to them, viz. whether the provocation was enough to make a reasonable man do as the accused did. It becomes sufficient that it made the accused react as he did. It substitutes for the requirement that 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 a different requirement by reference to the effect which it actually had on the accused. These tests are in truth no tests at all.

It is also inconsistent with Lord Diplock's description of the reasonable man in Camplin [1978] AC 705, for the reference to "his fellow citizens" (in the plural) is deliberately intended to generalise the test and is plainly not a reference to persons possessing the abnormally reduced powers of self-control of the accused. I respectfully disagree with Lord Hoffmann's reformulation of the objective test: whether the defendant's behaviour fell below the standard which should reasonably have been expected of him, at least if this is taken to mean a person having only his own reduced powers of self-control. This would be inconsistent with Lord Diplock's reference, at p. 717G, to "the degree of self-control to be expected of the ordinary person with whom the accused's conduct is to be compared." Moreover it is bound to confuse the jury, for the question is meaningless. How is the trial judge to answer the jury when they ask: "what powers of self-control is everyone entitled to expect from a person who, according to the medical evidence, has no powers of self-control?" Or more bafflingly still, "who has some undefined but less than normal powers of self-control"?

Lord Hobhouse has traced the development of the law since Camplin [1978] AC 705 and convincingly demonstrated that the approach adopted by the Court of Appeal in the present case cannot be supported by authority. I agree with his analysis that the present position is the result of a combination of errors, among which must be numbered the New Zealand jurisprudence, a mistaken desire to use the defence of provocation to cater for those who are mentally inadequate when this is properly the province of the defence of diminished responsibility, an inaccurate citation of the concluding words of section 3 which omits the words "anything done or said", and an unjustified extrapolation from Lord Diplock's speech in Camplin.

The New Zealand legislation might have been understood as confirming the retention of the objective element. Unlike section 3 of the Act of 1957, section 169 of the Crimes Act 1961 of New Zealand did not merely modify certain aspects of the common law, but was a self-contained codification of the defence of provocation. It was obviously intended to, and probably did, reflect the law of England following the passage of the Act of 1957. It provided (inter alia) that:

This was clearly modelled on section 3 of the Act of 1957, but was a distinct improvement on its language, for by referring to "a person having the power of self-control of an ordinary person" the New Zealand legislature avoided the "apparently inapt" reference to the reasonable man. It was not, however, anticipating Lord Diplock's criticism of this expression in Camplin or Lord Goff's exposition of its meaning in this context in Morhall [1996] AC 1. It was merely reproducing the language of the Criminal Code Act 1893 and the Crimes Act 1908 of New Zealand.

Both the Act of 1957 and the New Zealand statute require the sufficiency of the provocation to be determined by reference to the same external test, viz. the degree of self-control of an ordinary person. But this is the only objective element which is present. In all other respects the jury must take the accused as they find him, warts and all. When considering whether a person of ordinary self-control would have been provoked to react as the accused did, the jury must have regard to what Lord Simon in Camplin called "the entire factual situation." The question for the jury is whether a person of ordinary self-control would have reacted as the accused reacted if he were similarly placed, that is to say, having the history, experiences, background, features and attributes of the accused. This is a question of opinion on which the jury may bring their collective experience and good sense to bear without further evidence: see Camplin at pp. 716D, 720F-G, and 727G-H. Accordingly, I respectfully agree with Lord Hoffmann that the question is whether the defendant's behaviour fell below the standard which could reasonably be expected of him, but only if that is taken to mean of him exercising normal self-control.

Unhappily, the New Zealand statute used the word "characteristics", and proceeded to invest the hypothetical ordinary man with all "the characteristics of the offender" save for his power of self-control. In Camplin [1978] AC 705 Lord Diplock used much the same language. In suggesting how the judge should direct the jury, he said, at p. 718:

using the very terms of the section.

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 . . ."

My noble and learned friends Lord Hoffmann and Lord Clyde consider that Lord Diplock's reference to the age and sex of the accused was not meant to be exhaustive. I respectfully disagree. I think he included "sex" because he wished to emphasis that "the reasonable man" was not gender-specific; he was certainly not suggesting that women per se have less self-control than men. He included the word "age" because that was what the case was about. In relation to age, he acknowledged the "logical transition" involved, but proceeded to justify it: the law should not "require old heads upon young shoulders." As the High Court of Australia observed in Reg. v. Stingel (1990) 171 C.l.R. 312 this "may be justified on grounds other than compassion, since the process of development from childhood to maturity is something which, being common to us all, is an aspect of ordinariness." The jury can judge, from their own experience and good sense and without the assistance of expert evidence, whether the accused displayed the ordinary self-control of a person of his age. This approach is also justified by the rationale of the defence. The victim has only himself to blame if he expects a 15-year old to react to provocative words or conduct in the same way as an adult, and the law should not expect him to do so. But as Lord Goff said in Luc Thiet Thuan v. The Queen [1997] AC 131, 140:

Unfortunately the use of the word "characteristics" (which does not appear at all in section 3 and was probably not intended to have any particular significance in the New Zealand statute) has diverted attention from the true nature of the inquiry. Judges have seized on it to distinguish between those attributes of the accused which can properly be said to be "characteristics" of his (with which the reasonable man must be invested) and his other attributes. They have distinguished between transient and permanent characteristics, between characteristics which are self-induced and those which are not, and between temperament and character on the one hand and mental illness on the other. It has finally led them to pose the certified question which asks in effect whether the jury should be directed that evidence which they must bear in mind when considering the gravity of the provocation should be disregarded when considering the requisite standard of self-control.

I think that the law has taken a wrong turning. It is time to restore a coherent and morally defensible role to the defence, and one which juries can understand. This can be achieved if it is recognised that the function of the "reasonable man" is merely to provide an external standard by which the sufficiency of the provocation to bring about the defendant's response to it can be judged. That depends on a combination of two things: the gravity of the provocation and the requisite standard of self-control. A direction that the jury should have regard to evidence when considering the one and disregard it when considering the other is simply baffling. Such a direction is obviously undesirable if it can be avoided; I do not believe that it can ever be necessary.

The first question the jury must consider is whether the accused was provoked by something, whether done or said, into losing his self control and reacting as he did. If he was, the next question is whether that something would or might have been sufficient to produce the like reaction in a person similarly placed but possessing the powers of self-control of an ordinary person. This does not require the jury to conjure up a picture of a hypothetical ordinary person or the judge to direct them which characteristics of the accused should be attributed to him and which should be disregarded. The question might perhaps be more easily answered if it were reformulated: would or might the provocation have produced the like reaction from the accused if he had exercised normal powers of self-control.

In my view it is confusing and unnecessary to direct the jury to have regard to evidence when considering the gravity of the offence and to disregard it when considering the requisite standard of self-control. It is confusing because they are two sides of the same coin. As Dr. Horder observes, the function of the objective element is to identify provocation which is sufficiently grave to provide a moral warrant for the defendant's conduct. I think that it is also unnecessary. If the accused was taunted with (say) impotence, evidence of his impotence is relevant and admissible. It goes to the gravity of the provocation. But impotence does not affect a person's powers of self-control. The jury do not need to be told to disregard it when considering whether the objective element of the defence is satisfied. They can simply be reminded of the question and invited to consider whether a person in the situation in which the accused found himself, being impotent and being taunted with his impotence, but being possessed of normal powers of self-control, would or might react in the same way.

The position not in reality different where the accused was taunted with the very disability which had the effect of reducing his powers of self-control. In practice this is very unlikely to happen except in cases of obvious and self-induced disability like alcoholism, drug addiction or glue-sniffing. Your Lordships dealt with this situation in Reg. v. Morhall [1996] A.C. 90. Where, as in that case, the words which are said to constitute provocation were directed to the defendant's addiction, the jury should be directed to take it into account in considering whether a person with the ordinary person's power of self-control would react to the provocation as the accused did. While the addiction itself is relevant if the offensive words are directed to it, any effect of the addiction in reducing the defendant's powers of self-control is not. This does not require the judge to direct the jury to have regard to evidence for one purpose and disregard it for another. The jury must take account of the evidence that the accused was an addict, for that is part of the factual situation. But expert evidence that addiction may operate to reduce the addict's powers of self-control cannot be relevant to the question whether the accused exercised ordinary self-control.

The same applies to intoxication. This is not, in my opinion, because drunkenness is transient or self-induced, nor is it because it is in any way out of the ordinary, for as Lord Goff observed in Morhall at p. 99 ordinary people sometimes have too much to drink. It is because the degree of self-control which the accused was capable of exercising when under the influence of drink is irrelevant to the question whether he exercised the requisite degree of self-control.

Addiction and chronic alcoholism are not transient states. The addict and the chronic alcoholic need treatment. They cannot cure themselves. While under the influence of drugs or drink they may be incapable of displaying ordinary powers of self-control. Yet this is no defence. Likewise a person's powers of self-control are affected by his personality and temperament. A man cannot help his personality or temperament any more than an addict can help his addiction. It is no use telling a bad-tempered man that he must control his temper. His temperament and personality are innate, not self-induced. Yet the defence of provocation is not available to the short-tempered or unusually excitable in circumstances where it would not be available to the even-tempered. In all these cases the jury must be satisfied that the provocation was sufficient to have caused a person with ordinary powers of self-control (which ex hypothesi the accused himself did not possess) to react as he did. I cannot see that it makes any difference that the defendant's inability to exercise an ordinary degree of self-control proceeds from depressive illness rather than chronic alcoholism or bad temper. This may seem hard, even unmerciful. But persons who cannot help what they do are intended to be catered for by the defence of diminished responsibility. The defence of provocation should be reserved for those who can and should control themselves, but who make an understandable and (partially) excusable response if sufficiently provoked.

Lord Hobhouse has convincingly demonstrated that the approach of the Court of Appeal in the present case is inconsistent with the English authorities and an understanding of the law shared by three successive Lord Chief Justices, Lord Parker, Lord Lane and Lord Taylor C.JJ. We cannot adopt it without departing from Reg. v. Morhall [1996] A.C. 90, a unanimous decision of your Lordships' House not yet five years old, and without preferring Lord Steyn's dissenting opinion in Luc Thiet Thuan [1997] AC 131 to that of the majority.

Lord Steyn's dissenting opinion in the last-mentioned case is, as might be expected, extremely powerful, invoking as it does the pre-eminence of the dictates of justice over the promptings of legal logic. He instances three situations. The first is the woman suffering from post-natal depression. The second is the "battered wife". The third is the woman suffering from a personality disorder which makes her unusually prone to lose her self-control. In all three cases, Lord Steyn observes, the particular characteristic of the accused is potentially relevant only inasmuch as it affected the degree of self-control which she was capable of exercising.

With respect, I do not think that the case of the battered wife is affected by the issue in the present case. It is true that the treatment she received from her husband is only relevant insofar as it gradually wore down the natural inhibitions which would normally prevent her from resorting to violence. But, except from the fact that it usually produces a sudden and immediate reaction, that is how provocation works. It is a disinhibitor which overrides a person's natural inhibitions and causes him to lose his self-control.

The problem which faces the battered wife is in attributing her loss of self-control, not to its immediate cause (which may be trivial), but to the long history of ill-treatment which preceded it. Her difficulty arises from the fact that the defence is often seen in terms of "a sudden and immediate loss of self-control". In many situations this is a useful test for the jury to have in mind. The accused is unlikely to have lost his self-control by reason of provocation if he has had time to allow temper to cool and "reason to resume her sway." But in the case of the battered wife the test is unhelpful. There is no legal requirement that the defendant's reaction must be triggered by an event immediately preceding his loss of self-control: see Reg. v. Chhay (1994) 72A Crim. R. 1, 9 per Gleeson C.J.

The question for the jury is whether a woman with normal powers of self-control, subjected to the treatment which the accused received, would or might finally react as she did. This calls for an exercise of imagination rather than medical evidence, but it does not dispense with the objective element. It does not involve an inquiry whether the accused was capable of displaying the powers of self-control of an ordinary person, but whether a person with the power of self-control of an ordinary person would or might have reacted in the same way to the cumulative effect of the treatment which she endured. The more difficult question in such a case is likely to be whether she lost her self-control at all, or acted out of a pre-meditated desire for revenge. On this issue the jury may be assisted by expert evidence to the effect that ill-treatment can act as a disinhibitor, and that the defendant's outward calm and submissiveness may be deceptive; they may have masked inner turmoil and suppressed rage.

The other two cases should, in my opinion, normally be dealt with if at all by the defence of diminished responsibility. In both cases the disinhibiting factor is internal to the accused, and it is inappropriate to ascribe it to provocation. Post-natal depression is a common, and perhaps ordinary, product of child-birth; and it is tempting to equate it with age as an attribute of the ordinary person which the jury should take into account when considering the objective element in provocation. But I think that this is unsound. A woman suffering from post-natal depression may kill on trivial provocation or none at all. If the provocation is insufficient to cause a person of ordinary self-control to act as she did, then her actions are attributable to her depressive illness and not to the provocation.

I agree with Professor Ashworth in the article to which I have already referred (at p. 312) that, while mitigation of the offences of those who are incapable of exercising ordinary self-control is desirable, the defence of provocation is not an appropriate vehicle. Where an individual who is congenitally incapable of exercising reasonable self-control is provoked by a petty affront, his loss of self-control must be ascribed to his own personality rather than to the provocation he received. In (1937) 37 Columbia L.R. 701, 1251, 1281 Wechsler and Michael write:

Professor Ashworth observes that the converse also holds true: where the provocation is objectively trivial, the defendant's loss of self-control should be attributed to his own deficiency rather than the provocation. He concludes that "congenitally incapable individuals have an independent claim to mitigation," and that "the defence of provocation is for those who are in a broad sense mentally normal." I agree with my noble and learned friend Lord Hobhouse that Reg. v. Raven [1982] C.L.R. 51 was a plain case of diminished responsibility. The jury should not have been asked to consider the extent of self-control capable of being exercised by an "ordinary" 22 year old with a mental age of nine.

I express no opinion whether post-natal depression, personality disorders, and chronic inability to exercise self-control can be brought within the restrictive language of section 2 of the Act of 1957. If they can, they should be dealt with as instances of diminished responsibility. If they cannot, the objective element of provocation should not be eroded and its moral basis subverted in order to provide a defence of diminished responsibility outside the limits within which Parliament has chosen to confine it.

I am not qualified to suggest, let alone lay down, any guide to the way in which the judge should explain matters to the jury. Everything will depend on the circumstances of the particular case, and those who preside over murder trials can call upon their great experience of the wide variety of contexts in which these problems arise. Where the jury has to consider both the defence of provocation and diminished responsibility, the judge will have to deal with them separately in his summing-up. How he does so will be a matter for him, but logic and ease of exposition would seem to require that the defence of provocation be ordinarily dealt with first, for the jury ought to consider whether the prosecution case is established before it turns to those matters where the burden of proof is on the accused. But even this must yield to the circumstances of the particular case and is a matter for the judgment of the trial judge.

So far as the defence of provocation is concerned, I have already indicated my own view that it is confusing, and should be unnecessary, to instruct the jury that particular evidence is relevant to the gravity of the provocation and not the degree of self-control which the law requires everyone to exercise. It should be sufficient to separate the two questions (whether the accused was provoked to lose his self-control and whether a person of ordinary self-control would have reacted as he did) and to marshal the evidence which is relevant to each. Evidence that the accused was congenitally or temporarily incapable of exercising self-control is relevant to the first question but not the second. 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. It may sometimes assist the jury if the second question is reformulated: would the accused himself have reacted in the same way if he had exercised ordinary powers of self-control? The jury may find it helpful to have the moral basis of the defence explained to them. Where both provocation and diminished responsibility are left to the jury, it may be helpful to draw the distinction between internal and external factors, and to tell the jury that, if they are satisfied that the accused did not exercise ordinary self-control in the face of some trivial provocation because he was congenitally or otherwise incapable of doing so, then they must consider whether the defence of diminished responsibility is established. But everything will depend upon the circumstances of the particular case and must be a matter for the judgment of the trial judge. I would deprecate intervention by the appellate courts on the grounds that the judge's directions could have been improved.

In the present case I consider that Judge Coombe's summing up was sound and in accordance with law, and that it contained no material irregularity. The jury (not surprisingly) were unimpressed with the defence of provocation. They may well have taken the view that there was none. They must have taken the view that such provocation as there was, if any, was insufficient to cause an ordinary person to lose his self-control. I would allow the appeal and restore the conviction for murder.

LORD HOBHOUSE OF WOODBOROUGH

My Lords,

This appeal raises a question of statutory construction. The provision to be construed is s.3 of the Homicide Act 1957.

"Provocation 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." The question is how is the word "reasonable" to be understood in this section. It is a question which has in the last 10 years given rise to repeated disputes before the courts.

In the present case the trial judge, Judge Coombe, told the jury that

The Court of Appeal considered that he was wrong. They held that they were bound by previous Court of Appeal authority, Reg. v Campbell [1997] 1 Cr App Rep 199 and Reg. v. Parker (unreported) 25 February 1997 (96/5529), with which it is fair to add that they clearly seemed to agree, to adopt the dissenting opinion of Lord Steyn in Luc Thiet Thuan v The Queen [1997] AC 131 that, where a defendant suffers from brain damage, the jury must be directed that "reasonable man" means a reasonable man with brain damage and that in the present case the judge should, since there was evidence that the defendant suffered from a depressive illness, have directed the jury that "reasonable man" included a reasonable man suffering from depression. "The defendant may have been in a depressive state." (p. 32) They allowed the defendant's appeal but certified a point of law of general public importance and gave leave to the Crown to appeal to your Lordships' House.

The question certified identifies the relevant issue of law. The agreed factual basis on which this issue arises can be shortly summarised. On the evening of Saturday 16 November 1996 the respondent and Mr McCullagh, a friend of the respondent were in the respondent's flat. Both had been drinking. The respondent killed Mr McCullagh by stabbing him some five times with a kitchen knife. The respondent told the police that he had killed Mr McCullagh because he had been caused to lose his self-control because Mr McCullagh would not admit that he had stolen some of the respondent's tools which the respondent had left in Mr McCullagh's flat some months earlier. He "just kept lying and lying". There was (disputed) psychiatric evidence that at the time the respondent was suffering from a severe depressive illness which would have adversely affected his powers of self-control - "disinhibited him". There appears to have been no factual basis for suggesting that the respondent's depressive illness had any relevance to the provocative behaviour of Mr McCullagh as such nor that it had any relevance to its gravity as provocation.

Thus, central to the issue of law raised by this appeal is the purpose for which the evidence of mental abnormality is being treated as relevant. It is common ground that s. 3 and the common law of provocation require two questions to be answered. The first is the factual, or as some prefer to call it the 'subjective' question: Was the defendant provoked, whether by things said or done to lose his self-control and kill? Since this is a factual question, evidence of any mental or other abnormality which makes it more or less likely that the defendant lost his self-control is relevant and admissible, as is any evidence concerning the defendant which helps the understanding or assessment of the evidence of what occurred. In answering factual questions all relevant evidence is in principle admissible. For such purpose it does not matter whether the evidence relates to something which would be described as a 'characteristic' of the defendant. Thus, evidence may be relevant and therefore admissible that the defendant was at the time very drunk or under the influence of a hallucinogenic drug. Such evidence may of course cut either way. It may show that anything said or done did not affect the defendant's conduct which was simply due to his delusions. Or, it may show that something said or done which would not normally cause anyone to lose their self-control may have caused the defendant to do so.

The second question is what is called the 'objective' question. It is, in the words of s. 3 "the question whether the provocation was enough to make a reasonable man do as the [defendant] did", taking "into account everything both done and said according to the effect which . . . it would have on a reasonable man." This question itself contains two elements. The first is the assessment of the gravity of the provocation. The second is the assessment how a reasonable man would react to provocation of that gravity. The second element involves applying a standard of self-control. Essential to the understanding of the authorities and the issue on this appeal is the distinction between these two elements. It is well established and not in dispute that in assessing the gravity of the provocation everything both said and done must be taken into account and that this inevitably involves taking into account any peculiarity of the defendant which affects that gravity. What is in dispute on this appeal is whether in applying the standard of self-control the jury should apply a qualified standard to reflect the respondent's lack of capacity to exercise ordinary self-control.

The Court of Appeal accepted the respondent's submission that the standard of self-control should be the qualified one. Luc ThietThuan v The Queen [1997] AC 131 was a case in which this point arose for decision. Luc Thiet, although on appeal from Hong Kong was decided on the basis of English law. The opinion of the Privy Council was given by Lord Goff of Chieveley. It was held that the section required the standard of self-control of an ordinary person not that of a person who only had an abnormal and deficient capacity for self-control. Lord Steyn dissented. Lord Steyn stated that he was deciding in accordance with the previous decisions of the English Courts and by implication expressing the opinion that Lord Goff was not. Whether Lord Steyn's dissent did in truth accord with the earlier English authorities is in contention. It is an essential element in the correctness of his view of the law. Later judgments in the Court of Appeal have accepted Lord Steyn's view, referring to the earlier authorities but, it must be said, without themselves undertaking a close examination of what exactly was decided in them. My Lords, in this speech I will re-examine those authorities; I consider that, contrary to the view of Lord Steyn, they show that English law does not require that the jury be directed to visualise an ordinary (reasonable) man with abnormal (unreasonable) mental characteristics.

North J.
One of the sources of confusion has been the citation in English cases of a judgment of North J in the New Zealand Court of Appeal in Reg. v McGregor [1962] NZLR 1069. It was a substantial judgment impressively reviewing, partly obiter, various aspects of the law of provocation and expressing views about how the New Zealand Crimes Act 1961 should be construed. Obiter, he construed that Act in a way which superficially appears to conform to Lord Steyn's view of the point now in issue. (p.1081) But various of the views of North J. have been strongly criticised in New Zealand (Adams: Criminal Law and Practice) and must now be read subject to what was said by Cooke P in Reg. v McCarthy [1992] 2 NZLR 550. The difficulties with what North J said include that it is not wholly self-consistent and is strongly coloured by the fact that there is no defence of diminished responsibility in the law of New Zealand and therefore is amenable to the argument that the law of provocation should indirectly fill the gap. For example, the conundrum raised by the New Zealand case Reg. v Rongonui (13/4/00) is peculiar to New Zealand and the "mental gymnastics" complained of by Tipping J would not be required by English law.

In order to follow the points which emerge from the authorities it is helpful to identify four points which arise in them. They can all be found referred to in the relevant passage from North J's judgment at pp.1081-2.

(1) 'Characteristics': This is a word emphasised by North J. which has found its way into the English authorities although it is not used in s. 3. Its purpose is restrictive. If attributes of the defendant are going to be taken into account, then it may be necessary to categorise attributes and hold that they must cross a threshold: they must amount to 'characteristics' of the defendant, not potentially transient states. Thus, North J said:

(2) Relevance to the Provocation: This too was emphasised by North J. (at p.1082) Again its purpose is restrictive. He said:

This is the point whether, for the purposes of the second question in s. 3, the attribute of the defendant must be relevant to the provocation as such - as where it is the reason why the conduct is provocative at all or it aggravates the gravity of the provocation. (3) Abnormality: Until the decision of the House of Lords in Reg. v Morhall [1996] 1 AC 90, there was a view that any abnormal characteristic must be wholly ignored for the purpose of the second question in s. 3 as being repugnant to the concept of the 'reasonable' man. (That had been the view of the Court of Appeal: [1993] 4 All E R 888, per Lord Taylor of Gosforth LCJ.) The view of North J had been that the characteristic had to be abnormal otherwise it was irrelevant and did not count: it must "make the offender a different person from the ordinary run of mankind". (4) Self-control: This is the critical point. For the purpose of answering the second question, is it permissible to allege that the defendant lacked the ordinary power of self-control. North J, subject to the three important qualifications already mentioned, thought it did:

It was in order to be able to say this that North J had effectively disregarded the plain words of the New Zealand statute - provocation "sufficient to deprive a person, having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control" - and had confessedly introduced limitations upon the characteristics of the defendant which could be relied on.
Anthropomorphism etc:

My Lords, the view of English law relied upon by the respondent on this appeal is a recent phenomenon. It has emerged gradually from the opinion of North J over little more than a decade. But the seeds from which it has sprung can be detected further back. A root cause is the inveterate (and not wholly unmeritorious) tendency of common lawyers to anthropomorphise concepts. Thus the test of liability in negligence was explained by reference to 'the man on the Clapham omnibus'. When the phrase 'reasonable man' (coming from 19th Century cases such as Reg. v Welsh (1869) 11 Cox 336) is used in s. 3, the common lawyer immediately tries to visualise and define some physical human being with identified characteristics (apparently both reasonable and unreasonable) whereas what the phrase is doing is identifying a concept, a standard of self-control. This standard is, as Lord Diplock and your Lordship's House have said in Reg. v Camplin [1978] AC 705, 717 those "powers of self-control as everyone is entitled to expect his fellow citizens will exercise in society as it is today". Lord Taylor LCJ confirmed the point in Reg v Dryden [1995] 4 All E R at 997: "The purpose of taking the reasonable man was to have a yardstick to measure the loss of self-control that will be permitted to found a defence of provocation." In Reg. v Morhall [1996] 1 AC at 90, 98, Lord Goff said: "The function of the test is only to introduce as a matter of policy a standard of self-control which has to be complied with if provocation is to be established in law."

It is the anthropomorphic thinking and the artificialities to which it has given rise which have pervaded the more recent judgments of the Court of Appeal and been the primary cause of the confusions and errors which have led to a series of English cases in the decade before the present case came to the Court of Appeal and now a perceived conflict with a considered judgment of the Privy Council. If judges are encouraged or required to sum up to juries in artificial and self-contradictory anthropomorphic terms, it is no wonder that people are confused and critical. One can compare that with the simple and clearly understandable language used by Judge Coombe in the present case which is minimally anthropomorphic. Indeed, there is no complaint that the language of Judge Coombs was in any way obscure or incomprehensible. The complaint is that the jury will have understood his direction too well and therefore have excluded a factor in the respondent's favour which, it is said, they ought to have taken into account.

There have been other contributory factors to which I will have to draw attention in the course of this speech. They include a recurringly expressed sentiment that the function of the law of provocation is to show mercy for inadequates, drawing upon statements (e.g. Reg. v Hayward (1833) 6 C & P 154 at 159 per Tyndal CJ) made over 150 years ago at a time when the rules of criminal evidence and procedure were radically different and the penalty for murder was death. This theme disregards that since then the concept of a reasonable standard of self-control has been developed in direct contradiction of such sentiments and that the significance of the sentiment was evaluated by the Royal Commission on Capital Punishment 1949-53 and the answer given by the Legislature, was to introduce into the English law of homicide the special defence of diminished responsibility. The absence of a consideration of the significance of s. 2 of the Act of 1957 is a striking feature of most of the judgments on s. 3.

Construing the 1957 Act in its Context: Diminished Responsibility:

The answer to the question raised by this appeal must be found by construing s.3 in its context. The context is primarily statutory. The Act of 1957 was an Act which made important changes to the law of homicide at a time when there was still the death penalty for murder. It followed on and represented the Legislature's response to the recommendations contained in the Report of the Royal Commission on Capital Punishment (1953 Cmd. 8932). The Royal Commission had had to consider the death penalty as it existed at that time in English law. This included the questions what unlawful killings should be treated as murder and what killings which would otherwise amount to murder should nevertheless be treated as manslaughter. Part II of the Act of 1957 retained the death penalty for certain categories of killing creating two categories of murder, capital and non-capital. It was not until the passing of the Murder (Abolition of Death Penalty) Act 1965 that murder ceased for all purposes to be a capital offence. However the mandatory sentence was preserved so that any murderer had to be sentenced to life imprisonment. Thus, at the time of the passing of the Act of 1957, murder was, in practical terms, a unique peace-time offence in the severity of the penalty which it carried and it has remained unique in that the sentence is mandatory. It must be recognised that these features of the crime of murder have given rise to distortions of ordinary principles of criminal law, distortions which are peculiar to the law of murder

The Act of 1957 was an amending act. It changed the existing law. Sections 1,2 and 3 all emerged from the discussion in the Report of the Royal Commission. Section 1 abolished the concept of "constructive malice" so removing a fiction which was no longer justified. Sections 2 and 3 have clear inter-relation. They both deal with factors which may affect the responsibility of the defendant for the killing. The premise upon which they both proceed is that the defendant has killed or been a party to the killing and has had the mens rea requisite to the crime of murder. Sections 2 and 3 provide defences which reduce what would otherwise have been murder to manslaughter, thus disapplying the mandatory sentences applicable to murder. Section 2, diminished responsibility, was a Scottish law concept wholly new to English law. Section 3 was a statutory alteration to an existing common law defence. Section 3, including the retention of the 'reasonable man' test, specifically derived from the recommendations of the Royal Commission as part of their review of all aspects of the existence of the death penalty. The Commission did not think that the introduction of the concept of diminished responsibility was justified although they carefully considered and recognised it merits. (See paragraphs 373-413.) Parliament however decided to introduce the defence, hence s. 2. Both sections address the same question: the defendant's act was unjustified and unlawful but he may not have been fully responsible for his act.

In English law, if a defendant was insane at the time of doing the act in question, he is not criminally responsible at all: he lacks all mens rea. The test is that laid down in the M'Naghten Rules and does not without more include uncontrollable impulse. (Attorney-General for South Australia v Brown [1960] AC 432). The burden of proof is upon the defendant. Section 2 of the Act of 1957 introduces the new defence. As previously stated it presupposes that the prosecution has proved mens rea.

"(1) Where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such an abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts and omissions in doing or being a party to the killing." Subsection (2) provides that the burden of proof shall be upon the defence. Subsection (3) provides that where the section applies the defendant shall be liable to be convicted of manslaughter.

The subject matter of this section and the special defence to murder which it provides is expressly "abnormality of mind" and consequential impairment of mental responsibility for the actus reus. It is a provision which covers any kind of abnormality of mind provided that it is relevant and sufficient substantially to impair the defendant's responsibility. It is thus a provision which expressly addresses and provides for such matters as brain damage and depressive illness. The Act lays down certain conditions. It is for the defendant to raise and prove the defence. The jury must be satisfied that the relevant mental feature is such as to substantially impair his responsibility.

The striking thing about the present and similar cases is that the defendant is either unwilling to rely upon s. 2 or, having done so, fails to satisfy the jury and wishes then to adopt a strained construction of s. 3 in order to escape the burden of proof and introduce vaguer concepts not contemplated by either section. The present case has only come before the Court of Appeal and your Lordships' House because the jury, having heard the evidence and having been properly directed upon the law, rejected the defence under s. 2. They were not satisfied that whatever degree of depressive illness the respondent was suffering from was such as substantially to impair his mental responsibility for the killing, that is to say, the actual killing with which he was charged taking into account the circumstances in which it occurred.

This is important because there seems in some quarters to be an implicit assumption that the assessment by a jury under s. 2 is inadequate properly to allow for the defendant's abnormality of mind in relation to any killing which was contributed to by provocation. There is no reason to make this assumption. Further, it is contrary to the drafting of s. 2 and to sections 2 and 3 read together. The brain damaged man has an abnormality of the mind. If it is of sufficient severity, in the opinion of the jury, to impair substantially his mental responsibility for killing his provoker, he will be found guilty of manslaughter, not murder, even if his action was not that of a reasonable man (indeed, one could say, because his action was not that of a reasonable man).

If the defendant is merely someone with a personality disorder, for example an exceptionally violent or immoral disposition, he will not be able to rely on s. 2, nor will he be able to rely on s. 3 if his response to the provocation was disproportionate. This is all in accord with the specific policy of the Act and the ordinary principles of criminal responsibility. Similarly, if the defendant suffered from an abnormality but the jury do not consider it to be sufficient substantially to impair his responsibility, he will not have a defence under s. 2. This simply reflects the policy of the statute and it would be contrary to that policy to extend s. 3 to give him the defence advisedly denied him by s. 2.

One of the errors that have bedevilled some of the recent judicial statements in this part of the English law of homicide is the failure to take account of the interaction of sections 2 and 3 and appreciate that they not only show that the strained construction of s. 3 is wrong but also that the perceived injustice which the strained construction is designed to avoid is in fact covered by an application of s. 2 in accordance with its ordinary meaning. Section 2 is of course capable of applying in any situation and those situations include a killing by a defendant who has killed after losing his self-control. A defendant in this situation can contend that his conduct was not abnormal and require the prosecution to satisfy the jury that his loss of self-control was not the result of provocation or his response to it was not that of a reasonable man. Or, he can contend and seek to satisfy the jury on the balance of probabilities that he had an abnormality of the mind which in the circumstances substantially reduced his mental responsibility for what he did. A defendant can of course place both contentions before the jury, as the respondent did in this case. The jury can then return a verdict of manslaughter on the one or the other basis. But it is always open to the jury to conclude (as no doubt the jury did in the present case) that the defendant's response was objectively disproportionate and that his abnormality of mind did not suffice to impair his mental responsibility for what he had done.

This point was made by the Criminal Law Revision Committee and by Lord Simon of Glaisdale, by quotation, in Reg. v Camplin [1978] AC at p. 705, 726-7 -

This very point had also been made by Lord Parker LCJ when giving the judgment of the Court of Appeal (which included Hilbery and Diplock JJ.) in Reg. v Byrne [1960] 2 QB 396, 402, recognising that the criterion of the reasonable man, "that is to say, a man with a normal mind" ruled out the defence of provocation for a sexual psychopath with "violent perverted sexual desires which he finds it difficult or impossible to control". His only available defence was accordingly diminished responsibility under s. 2. The judgment of Lord Parker and the decision in Byrne are strongly contradictory of the respondent's argument in the present case and the thesis that it is necessary and permitted to introduce abnormalities of mind into s. 3.

The point can be similarly illustrated from Scottish law from which the statutory defence derives. The case in which diminished responsibility was first recognised as a defence, not merely as a ground for recommending mercy, was Alex Dingwall (1867) 5 Irv 466. The accused, Dingwall, was irreclaimably addicted to drink. He was weakminded but not insane. He had killed his wife with a carving knife, according to his account, after a quarrel because on Hogmanay she had hidden his supply of alcohol and his money. Whatever might now be the position in England, such facts would not then raise even an arguable case of provocation. Lord Deas directed the jury that they could return a verdict of culpable homicide not murder on the basis of his "weakness of mind": "the prisoner appeared not only to have been peculiar in his mental constitution, but to have had his mind weakened by successive attacks of disease." (p.479) In H.M. Adv. v. Robert Smith (1893) 1 Adam 34, the accused was subjected to a course of taunting by his fellow workmen which so affected him that he eventually killed one of his tormentors. The taunts were described as "altogether insufficient" to cause such a reaction in an ordinary man and this was regarded by Lord McClaren as indicating that his mind was displaced from its balance by the long course of provocation and he was convicted of culpable homicide on the ground of diminished responsibility. (See further Gordon: Criminal Law, 2nd edn. p.787.) In this case there was a causal link between the provocation and the accused's mental abnormality. (point 2)

The defences of diminished responsibility and provocation are both recognised and are capable of operating separately. But, likewise, they can and very often do operate in conjunction. In English law by the Act of 1957 the two defences have been kept separate and are the subject of distinct provision - sections 2 and 3. But the two sections clearly form two parts of a legislative scheme for dealing with defendants who should not be treated as fully responsible for the death they have caused.

The Context: The Previous Law:

Turning now to s. 3 itself, it is an amendment of the common law of provocation. At common law the burden of disproving provocation rests upon the prosecution. The section does not alter this. Nor does the section remove the requirement for there to be two constituents of the defence; indeed, the drafting of the section emphasises this requirement, specifying the two questions. The first is the purely factual question whether the defendant was provoked to lose his self-control. The second is the judgment whether the provocation was enough to make a reasonable man do as the defendant did. Section 3 changed the first constituent, the factual question, by adding "whether by things done or by things said or by both together". Prior to the Act, the loss of self-control had to be by reason of things done; things said were not as such enough even though they caused a loss of self-control. (Holmes v. DPP [1946] AC 588.) The Royal Commission recommended that this rule be reversed (paragraphs 146 and following) and the Legislature agreed. As a consequence the second question had to be worded in the section so as also to include the direction that the jury when determining the second question should take into account "everything both done and said".

It is to be noted that neither the Royal Commission nor the Legislature saw any need to change the law in the manner which has since come into prominence. They retained the element of loss of self-control as a factual element of the defence of provocation. Historically, the relevant idea was to distinguish the motiveless killing. In Reg. v Duffy [1949] 1 All E R 932, the elegantly compressed definition of Devlin J (which unfortunately also contained a troublesome elision of the first and second questions) included the words "some act or a series of acts . . . which . . . actually caused in the accused a sudden and temporary loss of self-control". This factual requirement has caused factual difficulties in relation to certain types of killing where the conduct of the deceased has had a long term cumulative effect which has caused the defendant to reach the point where he or she decides that he or she can take no more and kills the deceased. The most usually instanced example of such a case is that of the battered woman. She does not suddenly lose her self-control in the normal use of that term; she is driven in a controlled fashion to decide to kill. The problem that this presents has been discussed in a number of cases in the Court of Appeal, particularly Reg. v Thornton [1992] 1 All E R 306, Reg. v Ahluwalia [1992] 4 All E R 889, Reg. v Humphreys [1995] 4 All E R 1008 and Reg. v Thornton (No. 2) [1996] 2 All E R 1023, and has been the primary subject of a written brief submitted to your Lordships by the interveners on this appeal. It also clearly influenced the dissent of Lord Steyn in Luc Thiet Thuan being the second example which he gave at the outset of his opinion (p.1048).

It must be stressed that this question is not raised by this appeal. The question whether or not a defendant did in fact lose his self-control is a question of fact: it is part of the factual first question. If the jury are satisfied that the defendant did not actually lose his self-control, that is an end of the defence. The second question, the question of judgment, does not arise. There may be scope for amending the law of murder in this respect, as in a number of others, but that amendment was not made by s. 3 nor has it yet been made by any other Act of Parliament.

My Lords, I now turn to the second question, the question with which we are concerned. Section 3 altered the existing law here as well. It required that the question be left to and decided by the jury and not by the judge. Previously judges had been withdrawing consideration of the defence from the jury because in the judgment of the judge a reasonable man would not have been deprived of his self-control. But s. 3 did not make any other alteration to the existing law save for the consequential change of wording (to which I have already referred) to take account of both things done and things said.

The 'reasonable man' test had been specifically considered by the Royal Commission (paragraphs 141 and following). They discussed the argument that -

They referred to and adopted the contrary argument that -

They did not recommend any change in the law of provocation in this respect. In reaching this conclusion they expressly mentioned in paragraph 143 the relevance of the Scottish defence of diminished responsibility to the question of a provoked defendant who suffered from some mental abnormality not amounting to insanity, a topic to which they said they would revert (as they did) in a later chapter. The interrelation of the two concepts was not overlooked.

The Act of 1957 follows the same scheme. It preserves the 'reasonable man' test unchanged and separately introduces the new defence of diminished responsibility. The argument of the respondent on this appeal raises again the argument rejected by the Royal Commission and seeks to give the Act of 1957 an effect which it is patently not intended to have. Further, if the Legislature had intended to change the law in this respect, one would find some indication of it by a requirement that the jury were to be directed to take into account something which had previously been excluded - a reference to any abnormally deficient powers of self-control of the defendant. Instead the jury are required, in determining the second question, simply to "take into account everything both done and said according to the effect which in their opinion it would have on a reasonable man".

There is no problem about ascertaining what was the law on this aspect before 1957. In R v Alexander (1913) 9 Cr App R 139, 141, the court rejected the argument that a mentally deficient person who was provoked into killing a man by his red hair would be able to plead provocation. In R v Lesbini [1914] 3 KB 1116, the Court of Appeal had to consider the case of a man who "was not of good mental balance, though not insane in the proper legal sense of the term" and refused to extend the defence of provocation and followed Alexander. The argument, said Lord Reading LCJ, at p. 1120

Mancini v D.P.P.

:

R v Lesbini

The argument rejected by Lord Reading is effectively the same as the argument which was rejected by the Royal Commission but has been repeated on this appeal. The Legislature in enacting s.3 likewise did not accept the argument in relation to provocation but, by introducing the defence of diminished responsibility in s.2, gave effect to it in a different way and to the extent Parliament thought proper.

The word "reasonable" in s.3 was adopted by the draftsman of the statute from the earlier judicial terminology. (e.g. Reg. v Welsh (1869) 11 Cox 336.) It was, and is, a concept used not infrequently in the criminal law to prevent a legitimate defence from becoming a licence to commit crimes. A straightforward example is the concept of acting reasonably in self-defence. Acting unreasonably in self-defence destroys the defendant's justification for deliberately injuring his attacker. Unless the defendant has acted in accordance with the standards of self-restraint to be expected of an ordinary citizen, his act remains criminal although in fact done in self-defence. Another, analogous, example is the rule that self-induced intoxication (although it may, if sufficiently extreme, provide evidence to negative a specific intent) does not provide an offender with a defence; he remains criminally responsible for his acts despite his drunkenness and his inability in that state fully to appreciate and control his conduct. (e.g. Reg. v McCarthy [1954] 2 QB 105) A further example is to be found in the law of duress where direct parallels have been drawn with the public policy and ordinary powers of self-control required in relation to provocation. (Reg. v. Bowen [1996] 2 Cr App R 157: "The law requires the defendant to have the self-control of the ordinary citizen in his situation", per Stuart-Smith L.J. at p.162. This wording was drawn from the almost identical language of Lord Lane LCJ in Reg. v. Graham [1982] 1 WLR at 300 and Lord Mackay of Clashfern in Reg. v Howe [1987] AC at 459.) These are rules of criminal policy. They do not have a perfect logic nor do they operate with complete precision. Their function is not to introduce some additional exemption from criminal responsibility: it is to impose a constraint upon the availability of what would otherwise be liable to become an exorbitant defence.

Reg. v Camplin:

Thus far there is nothing to support the respondent's argument. It has been rejected at every turn and has not been supported by the Act. However it is possible to see that the resurrection of the argument has partly derived from the drafting of s.3. When the alteration was made so as to enable provocation to be by words alone, inevitably peculiarities of the defendant became relevant. Physical provocation may affect all those subjected to it in a broadly similar way (except for the one-legged man who loses his crutch) and the reasonable man test was simpler to apply. But provocative words causing loss of self-control are far more likely to be specific to the defendant and his characteristics and will usually leave all others unmoved. How then, it is asked, can one answer the second question taking into account everything said "according to the effect it would have on a reasonable man"? In Reg. v Morhall [1996] 1 AC 90, the difficulty was caused by the fact that the defendant was a glue-sniffer who killed the man who was nagging him about his glue-sniffing. It is said, rhetorically, how can one have a reasonable glue-sniffer? It is a contradiction in terms just as is the idea of a reasonable drunkard.

The answer is that the role of the second question is being misunderstood. Its purpose is, as previously stated, to provide a standard of ordinary self-control so as to compare the reaction of the defendant as he was in fact provoked to lose his self-control with the reaction of a person with ordinary powers of self-control to provocation of equal gravity. Its purpose is not to create for the jury some impossible self-contradictory chimera designed ultimately to displace the concept of reasonableness altogether. The correct purpose was made clear by Lord Diplock in Reg. v Camplin [1978] AC 705 in a speech with which the majority of their Lordships expressly agreed.

There were two particular points which gave rise to argument in Camplin. The first was that the defendant was only 15 at the time of the killing and the trial judge had taken it upon himself to direct the jury that "reasonable man" must mean a man of full maturity and could not include a reasonable 15 year old boy. The second was that an argument was founded upon what had been said by Lord Simonds L.C. in Bedder v. DPP [1954] 1 WLR 1119 before passing of the Act and at a time when provocative words had to be left out of account. With the concurrence of the House, he had said, at p.1123:

Mancini's

The attribution of characteristics (be they normal or abnormal) of the defendant to the hypothetical reasonable man was an obvious source of confusion.

Lord Diplock stressed that s. 3 recognised and retained the dual test for provocation. He also confirmed his agreement with Lord Simon of Glaisdale that evidence is not admissible upon the second question. He then stated, at p. 717 the meaning of the phrase "reasonable man" for the purposes of the law of provocation:

Lord Diplock explained the effect of the change in the law made by s. 3 in relation to provocative words:

Bedder v. Director of Public Prosecutions

His opinion was that it was, since the Act, better not to refer juries to what was said in Bedder in the interests of avoiding unnecessary complexity. He was clearly of the view that the word 'reasonable' was still to be treated as a synonym for ordinary or normal. Thus, in summarising his view as to the appropriate way in which the trial judge should direct a jury on the second question, he said, at p. 718:

the power of self-control to be expected of an ordinary person

in other respects

As I have emphasised, his formulation is based upon the assumption of the possession of ordinary powers of self-control and it is only in other respects that the defendant's abnormal characteristics are to be taken into account. It is also loyal to the drafting of s. 3 which is concerned with the effect the provocation would have on the reasonable/ordinary man.

Lord Morris expressly agreed with Lord Diplock's direction and his speech discloses no marked differences. Lord Fraser and Lord Scarman agreed with the speech of Lord Diplock.

Lord Simon, at p.726, said: "In my judgment the reference to 'a reasonable man' at the end of the section means 'a man of ordinary self-control'." Thus Lord Simon, like Lord Diplock, equated the concept of the reasonable man with a man with ordinary powers of self control. (See also Lord Simon to the same effect at p.725D and his express agreement at p.727 with Lord Diplock's model direction.) All this is loyal to the view of the Royal Commission and the drafting of the section and directly contrary to the respondent's argument in the present case.

However, Lord Simon elsewhere used language which seems to have led Lord Steyn later to read his speech differently. At p.727, he referred to the law of New Zealand and s. 169(2) of the Crimes Act 1961, which uses the words I have quoted earlier: "Anything done or said may be provocation if . . . in the circumstances of the case it was sufficient to deprive a person having the power of self-control of an ordinary person, but otherwise having the characteristics of the offender, of the power of self-control." Linguistically, this is a formula very similar to that approved by Lord Diplock at p.718. Lord Simon commented that the subsection, as in explained Reg. v McGregor, was, he thought, "substantially the same" as the law as it now stands in this country. He also, at p.726 misquoted the English Act as if s. 3 said taking "into account everything according to the effect it would have on a reasonable man". (His emphasis) Lord Simon was using this to show that the section requires the jury to take into account a characteristic of the defendant "which particularly points the insult" (North J's point 2). He was not departing from what Lord Diplock had said; he was simply anticipating what would be the majority judgment in Luc Thiet. But, as Lord Taylor was later to point out in Reg. v Morhall [1993] 4 All E R 888, to omit the words "both said and done" inevitably alters the sense and invites confusion if the context in his speech is overlooked.

Lord Lane:

Three months later, these parts of the speech of Lord Simon were referred to by a Court of Appeal presided over by Lord Lane LCJ in their judgment in Reg v Newell (1980) 71 Cr A R 331. The case of Newell concerned a defendant, a chronic alcoholic, who had killed a friend, another man, whilst they were both seriously drunk. The defendant's much younger girl friend had recently left him and the two mens' drunken binge was a consequence. However at one point the friend made a remark disparaging the girl and said that the defendant might as well come to bed with him, whereupon the defendant picked up a heavy ashtray and struck his friend violently on the head some 20 times, killing him. His relevant defences were diminished responsibility and provocation. The jury convicted him of murder. The Court of Appeal dismissed the appeal. The main point was whether for the purpose of the law of provocation the jury should have been directed to take into account the defendant's chronic alcoholism. The answer given by the Court of Appeal was that they should not: "It had nothing to do with the words by which it is said he was provoked." (p.340)

For the present appeal, this is an important case. The defendant was not just drunk. He was an alcoholic. He suffered from a disability which was capable of affecting his powers of self-control and reducing them below that to be expected of an ordinary man. This chronic incapacity might arguably come within North J's definition of 'characteristic' (point 1). The Court were prepared to assume that it did (p.340). It was abnormal (point 3). It affected his powers of self-control (point 4). But it was not relevant to the provocation (point 2). North J would accordingly have said that that the jury should be directed to ignore the alcoholism. That also was the decision and the reasoning of the Court of Appeal and Lord Lane.

It thus can be seen that the decision and the reasoning does not support the respondent's argument here: it is an authority against the respondent. If the respondent's argument were correct, the Court of Appeal would have decided that appeal the other way. The abnormality of the defendant was to be left out of account, not because it did not affect his powers of self-control but because it did not aggravate the provocation. There is nothing in the judgment of Lord Lane which questions the continuing applicability of Lesbini.

However in this (probably unreserved) judgment there is again some language which has later caused confusion. Lord Simon's misquotation was repeated. More importantly, the judgment includes a long quotation from North J and describes its reasoning as impeccable and commends its language as plain and easily comprehended: "It represents, we think, the law of this country as well as the law of New Zealand." But it concludes: "If the test set out in McGregor is applied, the learned judge was right in not inviting the jury to take chronic alcoholism into account on the question of provocation."

What has gone wrong in some later cases is that isolated sentences have been lifted from North J without his qualifications and Lord Lane has been treated as approving such unqualified statements whereas the whole basis of the judgment and decision in Newell is the acceptance of the qualifications and the insistence that they be satisfied (as is further demonstrated by the question certified when refusing leave to appeal, p.340).

R v Raven:

The next case in time is Reg. v Raven [1982] Crim LR 51. I would not have thought it necessary to refer to this case at all but for the fact that Lord Steyn in his dissenting opinion in Luc Thiet, at pp.156 and 157, treated it as of critical significance: "If Raven was correctly decided, as I believe it was, it follows that the present appeal must succeed." It was a ruling of the Recorder of London during the trial of a man who had a physical age of 22 years but a mental age of only 9 years. He was being tried for murder. He did not give evidence but his defence was that he had been provoked by homosexual attacks upon him by the deceased. This was a clear case of diminished responsibility; his mental deficiency was not in dispute. A child of 9 years would not have been criminally responsible: the Children and Young Persons Act 1933 s. 50. His mental responsibility for his acts was indisputably substantially impaired. This was therefore just such a case as was visualised by the Law Reform Committee and Lord Simon. (See above.) Manslaughter could be the only realistic verdict.

However, remarkably, by a route which is not explained in the short report, and which could not be explained by either counsel appearing before your Lordships on this appeal, the case was apparently thought to raise the issue whether the mental deficiency should be attributed to the "reasonable man". The Recorder held that it should. This was, according to the report, thought to be an application of the decision in Camplin. It was not. Camplin was concerned with an ordinary 15 year old and explained the reasonable man test in terms of ordinary powers of self-control. Raven was not an ordinary person. This case therefore was probably the first example of a jury being asked to visualise the chimera, an ordinary 22 year old with a mental age of 9. But this is not the end of the oddities of the report. There is no suggestion that there was any connection between Raven's mental deficiency and the provocation; it seems that it can only have affected his powers of self-control. Therefore on the authority of Newell the mental deficiency was immaterial to the defence under s. 3. The case note seems to have been written without any awareness of any of these features of the case being reported. The note seems to proceed from a desire to reject the reasoning and decision in Camplin and to be based upon the doubly mistaken belief that Camplin had created an "unhappy problem" which had in Raven received a "plausible solution".

Lord Taylor:

Lord Lane was succeeded as Lord Chief Justice by Lord Taylor. Lord Taylor has also been cited as a supporter of the respondent's argument. It is relevant therefore to look at the judgments relied on to see whether this claim is correct.

The first such case is Reg. v Ahluwalia [1992] 4 All E R 889. This was a case of a battered wife who had been convicted of the murder of her violent and abusive husband. At her trial she had raised the defence of provocation and the judge had directed the jury that they should consider whether, if she did lose her self-control, a reasonable person having the characteristics of a well educated married Asian woman living in this country would have lost her self-control in the face of her husband's provocation. On appeal it was submitted that he should have directed the jury to consider a reasonable person suffering from 'battered woman syndrome'. This ground of appeal was rejected as there had been no evidence that she had been suffering from that disorder. However, having considered fresh medical evidence placed before them, the Court of Appeal ordered a retrial on the basis that the new evidence showed an arguable case of diminished responsibility. The decision therefore raises no relevant problem.

The part of the judgment relating to "the defendant's characteristics" is based upon Camplin and Newell. Like Lord Lane, Lord Taylor quotes North J. He does so for the purpose of discussing point 1, what amounts to a characteristic. Lord Taylor was clearly not intending to qualify Camplin nor to question the decision and reasoning in Newell. At p.899, he upholds a simple direction in terms of the reasonable person. Neither the case nor the judgment supports the respondent's case on this appeal.

Next in this sequence comes Reg. v Dryden [1995] 4 All E R 987. This was the case of the eccentric and obsessional householder who was trying to resist the lawful execution of a demolition order by local authority officers. He shot and killed one of them, attempted to kill the authority's solicitor and injured a policeman and a journalist. His defence to murder was diminished responsibility and provocation. There was evidence that he was at the time suffering from a depressive illness which amounted to an abnormality of the mind. The jury rejected the defences and convicted the defendant. The convictions were upheld on appeal.

One of his grounds of appeal was that the jury had not been properly directed in relation to provocation. The judge had used words almost identical to those used by Judge Coombe in the present case. The defendant argued that he should also have directed them that the defendant's eccentricity and obsession were characteristics to be taken into account under Lord Diplock's formulation. Lord Taylor giving the judgment of the Court of Appeal rejected this argument holding that both Lord Diplock and Lord Simon had clearly indicated that "apart from the standard of self-control which is to be attributable to the reasonable man, other characteristics" should be taken into account. (p.997) He warned against the danger that, if one adds all the characteristics of the defendant to the notional reasonable man, the reasonable man becomes "reincarnated" in the defendant: the purpose of taking the reasonable man is to have a yardstick to measure the loss of self-control that will be permitted to found a defence of provocation. However, applying Newell, he held that the judge ought to have referred to the defendant's obsessions since they were relevant to the provocation. "It was in regard to his obsession with his property and this dispute that the conduct of bringing the excavator to the scene was the last straw in the build up of stress upon the [defendant]." (p.998) The evidence was admissible as satisfying points 1, 2 and 3. It was not admitted or relevant under point 4.

This is confirmed by the Court of Appeal's second reason for dismissing the appeal: "We are satisfied that the jury here can only have come to one conclusion as to whether someone with the self-control of a reasonable man would have done what the [defendant] did even granted that this was a matter very close to his heart and a matter which had caused him anguish, worry and anger over a considerable period." (pp.998-9) Lord Taylor is making the distinction between the recognition of the aggravation of the provocation and the application of the ordinary standard of self-control. (See also the headnote to the same effect.) Dryden is therefore an authority against the respondent not in his favour.

Next comes the judgment delivered by Lord Taylor in Reg. v Morhall in the Court of Appeal, [1993] 4 AER 888. This is relevant to demonstrating his view of the law even though the decision was reversed by the House of Lords, [1996] 1 AC 90. It will be remembered that Morhall was addicted to glue-sniffing and stabbed and killed a friend who took him to task over his addiction. The jury convicted him notwithstanding his putting forward various defences including diminished responsibility and provocation. The question on the appeal was what if any direction the judge should have given the jury on provocation having regard to the evidence of Morhall's addiction. The Court of Appeal held that the Judge had been right to exclude the addiction from the second question under s.3. It was "repugnant to the concept of the reasonable man" (p.892).

Lord Taylor cited Camplin. He pointed out (p.891) that it was misleading to quote Lord Simon's incomplete quotation from s. 3: it does not refer to any characteristic of the defendant. He contrasted characteristics which were consistent with the general concept of a reasonable or ordinary person and those which were not, the former being relevant "if the provocation related to them". (p.892) In answering the question "where is the line to be drawn?", he like others before him again turned to North J. for assistance. The feature met the test of relevance to the provocation (point 2). "The provocation relied on was specifically targeted at the [defendant's] addiction to glue-sniffing. Accordingly, the question is starkly raised as to whether that addiction should have been left to the jury as a characteristic which they could take into account as affecting the gravity of the provocation to the [defendant]. [Counsel] contends that it should because, apart from the self-control of the reasonable man, all characteristics relevant to the provocation alleged must be left to the jury." (p.893)

Therefore, Lord Taylor was accepting that characteristics cannot affect the question of the ordinary standard of self-control (point 4), accepting that the feature in question passed the test of relevance to the provocation (point 2), but rejecting the feature under point 3. It thus confirms Lord Taylor's disagreement with the respondent's argument here.

Reg. v Humphreys [1995] 4 All E R 1008 is a case which was considered to fall on the other side of the line. But the judgment of the Court of Appeal given by Hirst L.J. was on the basis that a trait which connoted no more than that the defendant lacked the normal powers of self-control would not qualify, whereas one at which the provocative taunt relied upon as the trigger inevitably hit directly and was calculated strike a raw nerve would qualify. (p.1021-2) This again contradicts the respondent's submission on point 4.

Finally in this sequence, after the House of Lords had decided Morhall, there is the judgment delivered by Lord Taylor in Reg. v Thornton No. 2 [1996] 2 All E R 1023. This was another battered wife case like that of Ahluwalia. There was fresh evidence of the defendant having had a personality disorder. The Court of Appeal in line with Morhall in the House of Lords considered that if the evidence had been available at the trial, the jury would have received a direction about its relevance. They ordered a retrial. The judgment does not purport to add anything to the previous authorities.

The reported judgments of Lord Taylor therefore do not support the respondent's argument here but, rather, contradict it. There is no indication that Lord Taylor would decide point 4 in favour of the respondent, indeed the indications are the reverse.

Reg. v Morhall:

The speech of Lord Goff was agreed to by all the other members of the Committee. The speech rejected the anthropomorphic approach. Lord Goff stressed that the second question was concerned with identifying "a standard of self-control". (p.98) The law was not concerned to invite the jury to consider a reasonable glue-sniffer. He discussed the law of New Zealand in the light of the later decision in McCarthy and the judgment of Cooke P. The thrust of the speech is that there are two aspects of provocation in relation to which a jury might attach significance to an abnormal trait of the defendant. The first, which is permissible, is relevance to the gravity of the provocation to the defendant (point 2). The second, which is not permissible, is relevance to the standard of self-control required by the law (point 4). The jury should have been directed about this (and had not been). The fact that the trait of the defendant is repugnant to the standard is irrelevant to the question of evaluating the gravity of the provocation.

It is to be observed that this decision is a binding authority in English law. It distinguishes between matters going to the gravity of the provocation and the required standard of self-control. It is in line with the previous authorities but has moved away from treating the judgment of North J. as the place to find all the relevant answers.

Luc Thiet Thuan:

This case raised the question whether a defendant who suffered from brain damage which was irrelevant to the provocation (point 2) but was relevant to his capacity for self-control could rely upon the brain damage in support of his case under the second question in s. 3. Nothing appears to have turned upon the fact that such lack of capacity would be relevant to answering the first, the factual, question whether he did in fact lose his self-control. The opinion delivered by Lord Goff contains nothing new save for a fuller discussion of the law of New Zealand and Australia, the inclusion of quotes from the article of Professor Ashworth [1976] CLJ 292 and an important passage explaining and emphasising the relevance of the defence of diminished responsibility introduced by s. 2 of the Act (p.1046).

Thus the opinion recites what was decided in Camplin, setting the standard. It repeats the distinction between aggravation of the provocation and something which merely impairs the power of self-control. It stresses that the standard of self-control is that of the ordinary person. It points out that it is not open to the courts "either to discard the objective test or to interpret it in a manner inconsistent with the statute." (p.1039)

The dissent of Lord Steyn postulates situations of greater or lesser emotional content where there is evidence that the defendant suffers from a mental condition which affects her capacity for self-control. This evidence is admissible to deciding upon the answer to be given to the first, the factual, question. He then goes on to postulate that the judge will give the jury a direction upon the second aspect of the second question which is artificial and confusing. This must be contrasted with the simple and easily understood direction that Judge Coombe gave the jury in the present case. The dissent dismisses the inclusion of s. 2 in the statute as an irrelevance, apparently on the ground that "the burden of establishing the defence is on the defendant who raises it"; "it is an optional defence." The reasoning specifically rejects the provisions of s. 2 as being those settled by the Legislature to deal with mental abnormality and asserts that there should be looser criteria. It pays no regard to the fact that the Royal Commission recommended that the 'reasonable man' test should be retained and the Legislature chose to do so but with the addition of the diminished responsibility defence. As regards the discussion of the previous authorities, it places wholly inappropriate reliance upon Raven. It does not refer to Newell. It misstates the decisions in the cases I have analysed as representing the view of Lord Taylor. It fails to give effect to what was decided by Camplin and Morhall.

My Lords, as I have demonstrated, it is the majority opinion which is in accordance with the English authority not the dissent.

The Later Cases:

There are two such case to which it is right to refer. The first is Reg. v Campbell [1997] CAR 199. The Court of Appeal ordered a re-trial to allow fresh evidence to be called to support a defence of diminished responsibility which had not been run at the trial because the evidence was not then available. On the hearing there was some argument about the direction on provocation which the judge had given to the jury at the trial which had occurred in 1985. He directed them that epilepsy was not a characteristic which they should take into account in determining whether the provocation was enough to make a reasonable man do as the defendant had done. 1985 was after Camplin and Newell but before Ahluwalia. It appears that the defendant argued that the direction, although it "faithfully reflected the law as it was then understood", was no longer correct because of later Court of Appeal decisions. Support for this view was apparently found in the dissent of Lord Steyn. There is no discussion of the authorities, simply the understandable statement that, on the assumption that the dissent accorded to English law as declared by the Court of Appeal, the Court of Appeal authorities must be followed until over-ruled by your Lordships' House. (pp.206-7)

Next there is the unreported decision in Reg. v Parker (25 February 1997). The Recorder of Birmingham had held that the majority opinion in Luc Thiet was identical with English law and had excluded evidence that the defendant's capacity for self-control was abnormally reduced because he was an alcoholic with some damage to his left temporal lobe. Basing themselves on Raven and what Lord Steyn had said about it, the Court of Appeal preferred to follow the dissent rather than the majority opinion. It appears that Newell was not cited; if it had been it would have been appreciated that the Recorder was right.

The Court of Appeal:

Finally, I come to the Court of Appeal's judgment in the present case. It is a carefully reasoned judgment but it inevitably does not reflect the same thoroughness of review that has been possible for your Lordships. The Court of Appeal were unable to find in s. 3 any support for the view of Judge Coombe. As I have sought to demonstrate, construed in its context, s. 3 is in truth only consistent with the prosecution case; put at its lowest it does not provide support for the respondent's case.

As regards the case law, it appears that the relevant cases from Newell onwards were cited but the analysis they received seems to have been based upon what was said about them by Lord Steyn in Luc Thiet. The Court rejected the distinction between matters which may aggravate the provocation and the objective standard of self-control required by the law even though that distinction can be found not only in Luc Thiet but also in the relevant Court of Appeal authorities and Morhall and, indeed, is apparent in a quotation which they make from Lord Taylor in Dryden (p.23 of the transcript).

Like the dissent in Luc Thiet, the correctness of the judgment of the Court of Appeal depends upon its having correctly analysed the Court of Appeal authorities. In my view it has not done so.

Conclusion:

The law, as provided in s. 3 of the Act of 1957 and held in the authorities down to Luc Thiet, establishes that the constituents of provocation are:

(a) The defendant must have been provoked (whether by things done or by things said or by both together) to lose his self-control and kill or do whatever other act is alleged to render him guilty of murder. (b) This is a factual question upon which all relevant evidence is admissible including any evidence which tends to support the conclusion that the defendant either may have or did not lose his self-control. (c) If the jury conclude that the defendant may have been provoked to lose his self-control and do as he did, the jury should, as an exercise of judgment, but taking into account all the evidence, form a view as to the gravity of the provocation for the defendant in all the circumstances. (d) Finally, the jury should decide whether in their opinion, having regard to the actual provocation (a and b above) and their view as to its gravity (c above), a person having ordinary powers of self-control would have done what the defendant did. If some elaboration of the word 'ordinary' is thought necessary, it should be along the lines advised by Lord Diplock and used by Judge Coombe in the present case. The phrase 'reasonable man' although used in the section is better avoided as not assisting the understanding of the criterion 'ordinary powers of self-control'. The word 'characteristics' should be avoided altogether in relation to (d). It is not used in the section. It is alien to the objective standard of ordinariness and experience has shown that it is a persistent source of confusion. Where relevant the age or gender of the defendant should be referred to since they are not factors which qualify the criterion of ordinariness. But language which qualifies or contradicts such ordinariness must be avoided. It is the standard of ordinary not an abnormal self-control that has to be used. It is the standard which conforms to what everyone is entitled to expect of their fellow citizens in society as it is.

If the scheme which I have set out above is followed, there should be no difficulty in directing the jury using simple and clearly understandable language. No artificialities are involved and the contradictions involved in the approach contended for by the defendant are avoided. Judge Coombe did this successfully in the present case as have many judges before him. It does less than justice to juries to suggest that they are incapable of understanding directions as simple as the four which I have set out above. If, as will usually be the case where the defence rely upon a mental element, diminished responsibility is also raised, s.2 and the concept of abnormality of mind provides the judge with an opportunity, if he thinks it helpful, to make an illustrative point of contrast with the objective test in s. 3.

It is not acceptable to leave the jury without definitive guidance as to the objective criterion to be applied. The function of the criminal law is to identify and define the relevant legal criteria. It is not proper to leave the decision to the essentially subjective judgment of the individual jurors who happen to be deciding the case. Such an approach is apt to lead to idiosyncratic and inconsistent decisions. The law must inform the accused, and the judge must direct the jury, what is the objective criterion which the jury are to apply in any exercise of judgment in deciding upon the guilt or innocence of the accused. Non-specific criteria also create difficulties for the conduct of criminal trials since they do not set the necessary parameters for the admission of evidence or the relevance of arguments. In fairness to those representing the respondent on this appeal, they have not submitted that a non-specific approach is permissible nor that it should be adopted.

The appeal should be allowed. The direction of the Judge was appropriate to the issues at the trial. The conviction was not unsafe.

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