United Kingdom Journals

Provocation and the Evidential Burden

Simon Cooper

Newcastle Law School

<Simon.Cooper@ncl.ac.uk>

Copyright © 1997 Simon Cooper.
First Published in Web Journal of Current Legal Issues in association with Blackstone Press Ltd.

Summary

A defendant who pleads provocation in defence to a charge of murder bears an evidential burden to adduce evidence of the existence of the provocation sufficient to satisfy the trial judge that the defence is fit to be placed before the jury. It is one of the trial judge's many important responsibilities to direct the jury on all defences which arise on the evidence, even if the defendant himself does not adduce any evidence of the existence of that defence or perhaps even denies the existence of that particular defence. The decision of the House of Lords in R v Acott [1997] 1 All ER 706 deals with how the 'evidential' burden relating to the defence of provocation might be discharged, the obligations placed upon the trial judge where the defendant advances a defence which is inconsistent with the existence of provocation, and what sort of evidence must exist in order to invoke the judge's duty to leave the defence to the jury.

Contents

The Facts

The Decision

The Issues on Appeal

Analysis

1. The Defendant's Burden to Adduce Evidence

2. The Requirements of the Provocation Defence

3. Criticism

Bibliography

The Facts

The defendant, Acott, a 48 year old man, lived with his 78 year old mother. On the 17th February 1993, Acott called an ambulance saying that his mother had been injured in a fall. The ambulance personnel found the mother dead on the floor of the hallway. It was apparent that she had suffered multiple and very severe injuries, especially to the head, face and neck. Acott, a man of previous good character, consistently denied any responsibility for his mother's death. His version of events was that he heard his mother fall down the stairs. He immediately went to her assistance and tried to resuscitate her. He said her injuries must have been caused by the fall and his clumsy efforts at resuscitation.

At trial, medical evidence was adduced which tended to demonstrate that the deceased died as a result of a sustained attack and one medical witness testified that the deceased's injuries were inexplicable on the basis of the defendant's account. It was agreed that the injuries were indicative of a loss of self-control.

Throughout the trial, Acott maintained that his mother had fallen. The trial judge directed the jury that, in light of the defence offered, this was a single issue case. Either the defendant murdered his mother or he did not. The jury convicted by a majority verdict. The defendant's appeal to the Court of Appeal was dismissed. In giving leave to appeal to the House of Lords the Court of Appeal certified that their was a point of law of general public importance involved in the decision, namely:

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

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The Decision

The House of Lords held that in the absence of any evidence, emerging from whatever source, which suggested the reasonable possibility that the defendant might have lost his self-control due to the provoking conduct of the deceased, the question of provocation did not arise and should not be put to the jury. In the absence of evidence of a specific act or words of provocation, where the jury were in effect being asked to speculate, the trial judge should not direct the jury to consider provocation. On the facts, there was no evidence of the nature of the provocation and the jury could not, therefore, determine the relevant conditions necessary for provocation. The appeal was therefore dismissed.

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The Issues on Appeal

It was argued that the trial judge ought to have left provocation as an issue to the jury. The possibility that the defendant had been provoked was actually raised by counsel for the Crown during cross-examination, when it was repeatedly put to the defendant that the truth of the matter was that he had lost his self-control and attacked his mother. The suggestion was that the defendant had been enraged by his mother treating him like a small child and scolding him. It was argued, therefore, that the Crown had made provocation an issue and the judge should have directed the jury on that defence.

It was further argued that the extent and severity of the deceased's injuries was itself evidence that prima facie indicated a loss of self-control on the part of the defendant. This was further supported by a number of factors including: the defendant was unemployed; he was in the embarrassing position of being financially dependent upon his mother; there was evidence to suggest she treated him like a little boy; she was prone to suffer from bad moods; she drank excessively.

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Analysis

1. The Defendant's Burden to Adduce Evidence

It is well established in law that a defendant does not carry any obligation to prove his innocence. He is quite entitled to sit back and insist that the prosecution prove the charges against him. It is equally well established that if certain defences are to be considered by the jury then there has to be some evidence of the defence and the question of whether or not the evidence is fit to be considered by the jury is one for the trial judge. This is often referred to as the defendant's evidential burden yet this perhaps, is something of an overstatement (see Williams 1977). As far as provocation is concerned, Lord Devlin stated the position clearly in Lee-Chun-Chuen v R [1963] 1 All ER 73, 77, when he said:

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

It is also somewhat misleading to say that the defendant bears the burden of adducing evidence in respect of these defences. Evidence of the existence of the defence might arise in any one of a number of ways and certainly need not be adduced by the defendant himself. It would, for example, be perfectly legitimate for the defendant to point to evidence that the prosecution had presented from which a jury might infer the existence of the defence in question. Provided there is some evidence of provocation, it is then the duty of the prosecution to disprove the existence of that defence to the requisite standard of proof namely, beyond reasonable doubt. The prosecution in Acott were vigorously cross-examining the defendant in an effort to adduce evidence of provocation. Ironically perhaps, had that evidence been forthcoming, the prosecution would then have been required to disprove provocation in order to secure a conviction for the charge they had brought.

Equally, it is clear that where a trial judge detects evidence of a defence, it is incumbent upon the judge to direct the jury about that defence, irrespective of which party raises the issue. This was made quite clear in the Court of Appeal where in R v Campbell (1986) 84 Cr App R 255, where Lord Lane CJ stated (at p 259):

"...where on the evidence...a defence such as self-defence or provocation can be seen to exist, a judge must leave that defence to the jury, even if it is not relied upon by those appearing for the defendant at trial...."

This might, of course, leave the trial judge in the rather unenviable position of having to direct the jury on the existence of a defence which is inconsistent with the defence actually advanced at trial,(1) but that is the judge's duty (see Doran 1991).

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2. The Requirements of the Provocation Defence

Section 3 of the Homicide Act 1957 provides:

"Where on a charge of murder there is evidence on which the jury 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." (emphasis added)

The section demands evidence that the defendant was provoked so as to lose his self-control so that the jury can then assess whether the provocation was enough to make the reasonable man do as the defendant did.

The House of Lords concluded on the facts of Acott that whilst there was evidence of a loss of self-control (the testimony of the medical witnesses supported such an inference), there was no evidence of any specific provoking act which caused that loss of self-control. Consequently, it was impossible to ask a jury to consider whether that 'provoking act' was enough to make the reasonable man do as the defendant did.

3. Criticism

The real difficulty with Acott lies in its potential for disallowing consideration of a defence notwithstanding the nature of the evidence. It would not be unreasonable to suppose that the jury in Acott were content to draw the inference that the defendant did, in fact, lose his self-control. Indeed, that inference could perhaps, be drawn quite easily in light of the medical evidence which was presented and the House of Lords concedes that to be the case. The jury were not permitted however, to consider whether or not there was a provoking act which caused that loss of self-control, on the ground that this would have required speculation on their part. As Lord Steyn, with whom the rest of the House agreed, put it (at p 713):

"It follows that there can only be an issue of provocation to be considered by the jury if the judge considers that there is some evidence of a specific act or words of provocation resulting in a loss of self-control."

It is true that in Acott there was no direct evidence of a specific provoking act. Indeed, the defendant expressly refuted the prosecution suggestion that he had been provoked. This is not too surprising given that the defendant would have been completely acquitted had his chosen defence of accident succeeded.(2) But notwithstanding the chosen defence, surely it is perfectly just, logical and reasonable to allow an inference to be drawn, from facts in the case which are not in dispute, that there was a provocative act of some sort, even if the precise nature of the provocative act cannot be determined? The House justified its conclusion by pointing to the requirement in s.3, that the jury have to objectively assess whether the provocation was enough to make a reasonable man do as the defendant did. If there is no evidence of a specific provoking act then how can the jury properly apply this part of the test?

It is submitted that this approach is unduly narrow and restrictive. Section 3 requires a jury to consider whether or not "the provocation was enough to make a reasonable man do as [the defendant] did...". Why should applying that test necessitate evidence of a specific provoking act? Surely it should be sufficient that the jury can conclude, in light of all the evidence in the case, that there was, or even may have been, a provocative act? It would surely not be unduly difficult to properly direct the jury on how the objective part of s.3 should be applied in the absence of direct evidence of a specific provoking act. The facts of Acott can serve as an example.

In Acott, undisputed evidence demonstrated that the unemployed defendant was, to his embarrassment, financially dependent upon his mother and that she often scolded and treated him like a child. He was man of previous good character and there was no apparent motive for him to have launched a murderous assault upon his mother. When taken together with the other evidence which demonstrated a loss of self-control, it seems perfectly reasonable to draw the inference that something was said or done to cause that loss of self-control. Indeed, a jury might well conclude that of all the possible explanations, this is the most probable. Maybe the deceased scolded the defendant, or maybe she teased him about his financial dependence upon her. We do not know for sure, but the evidence would certainly permit either of those inferences to be drawn. That this should be the correct approach is surely supported by the general law regarding the burden of proof namely, once provocation becomes an issue in the case, the general law requires the prosecution to prove, beyond reasonable doubt, that there was no provocation. Any remaining doubt should resolve the matter in favour of the defendant.

The trial judge therefore, should direct the jury to consider two issues. First, was there an actual loss of self-control caused by an act of provocation? In considering whether or not there was a provoking act, the jury should be permitted to consider all the evidence in the case without the need to specifically identify the nature of the provoking act. What is important is that the evidence supports the conclusion that some form of provocation occurred. Second, if the jury reach the conclusion that a provoking act did occur, they should be directed to consider whether or not that provoking act (whatever its precise form), was enough to make a reasonable man do as the defendant did. This might, of course, necessitate the jury considering the response of a reasonable man to one of a number of possible provoking acts. In Acott, for example, the jury might have considered whether or not the reasonable man would respond as the defendant did if he were taunted about lack of funds, or taunted about unemployment. The considerations would necessarily depend upon the evidence. A difficult task perhaps, but not a sufficient reason to deprive the defendant of a defence to the most serious of charges.

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Bibliography

Doran, S (1991) "Alternative Defences: the 'invisible burden' on the trial judge" [1991] Criminal Law Review 878.

Williams, G (1977) 'The Evidential Burden: Some Common Misapprehensions' (1977) 127 New Law Journal 156.

Footnotes

(1) For examples see R v Johnson (1989) 89 Cr.App.R 148, R v Cascoe [1970] 2 All ER 833. Back to text.

(2) It is not uncommon for a defendant to plead a defence which will lead to complete acquittal in the face of evidence which would give rise to qualified acquittal. The most common example is a plea of self-defence where the evidence would also give rise to the defence of provocation, see Lee-Chun-Chuen v R [1963] 1 All ER 73 and R v Johnson [1989] 1 WLR 740. Back to text.