HM Attorney-General for Jersey v Holley, the Privy Council
again considered the defence of provocation. Although the
case concerned an appeal from the Court of Appeal of Jersey,
the law relating to provocation is identical to English
law and thus the decision is likely to be regarded as highly
persuasive when the issue next comes before the English
The defence of provocation.
The defence, common law in origin, if successfully
pleaded to a charge or murder, reduces liability to manslaughter.
There are two limbs to the defence:
(i) The factual limb. This involves
a consideration of whether the defendant was, or may have
been, provoked to lose his self control. As far as this
ingredient is concerned all probative evidence is admissible.
The issue is a pure question of fact.
(ii) The evaluative limb. By section
3 of the Homicide Act 1957 ( replicated in section 4 of
the Homicide ( Jersey ) Law 1986 ) this requires the jury
to consider whether 'the provocation was enough to make
a reasonable man do as [D] did... and in determing that
question the jury shall take into account everything both
said and done according to the effect which, in their opinion,
it would have on a reasonable man'. It is in respect of
this second limb that the appeal was concerned.
The law in respect of this issue has been
uncertain for a number of years. In a number of leading
cases, including Camplin  AC 705 (HL), Morhall
 AC 90 (HL) and Luc Thiet Thuan v R 
AC 131 (PC) it was held that, as far as the evaluative question
is concerned, the judge should direct the jury to consider
whether an ordinary person with ordinary powers of self
control would have reacted to the provocation as D did and
that no allowance should be given for characteristics of
D which might have made him more volatile than the ordinary
person. These decisions did however acknowledge that characteristics
which affected the gravity of the provocation to D should
be taken into account. Thus, if a person lost his self control
as a result of racial taunts and killed, the jury should
be directed to consider whether, in comparable circumstances,
a person of that racial group, having ordinary powers of
self control, might have reacted as D did. It was for the
jury to decide what powers of self control one might reasonably
expect from an ordinary person as a result of the provocation
and the jury were entitled to take into account, in addition
to characteristics affecting its gravity, the age and sex
In Smith (Morgan)  1 AC 146,
however, the House of Lords departed from this approach.
The House held, by a majority, that no distinction should
be drawn, when attributing characteristics for the purposes
of the objective part of the test imposed by s 3 of the
Homicide Act, between their relevance to the gravity of
the provocation to a reasonable man and his reaction to
it. Account could be taken of a relevant characteristic
in relation to the accused’s power of self-control,
whether or not the characteristic was the object of the
provocation. The House of Lords, Lords Hobhouse and Millet
dissenting, held that it was a matter for the jury whether
to take a characteristic into account when deciding whether
the behaviour of the accused had measured up to the standard
of self-control which ought reasonably to be expected of
him. Lord Hoffman took the view that s 3 of the Homicide
Act 1957 made the jury sovereign in respect of the objective
element. It was for them to determine not only whether the
behaviour of the accused complied with a standard of self-control,
but what the appropriate standard in the particular case
should be. It followed, in Lord Hoffmann’s opinion,
that it would be inconsistent with the section for the judge
to tell the jury as a matter of law that they should ignore
a characteristic of the accused when deciding whether this
element of provocation had been satisfied.
In addition it was felt that the error in
the law had resulted from the misleading anthropomorphic
imagery of the evalutive test. To avoid confusing the jury
the test might be better expressed in terms of whether they
thought 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
approach was followed in the cases of Weller 
1 Cr App Rep 1 and Rowland  EWCA 3636.
The facts and trial.
D and the deceased, both sufferers from
chronic alcoholism, had a violent relationship. They spent
morning of April 13th together in a pub, both drinking heavily
and arguing. D returned to the flat they shared, spent the
afternoon chopping wood with an axe and continued drinking.
The deceased remained in the pub until the early evening
when she returned to the flat. D gave evidence that the
deceased was drunk and taunted him by telling him that she
had had sex with another man. D fatally hit the deceased
with the axe. He was charged with murder and, at his trial,
raised the defence of provocation.
He was convicted of murder and appealed
on the grounds that the judge had misdirected the jury on
the defence. His appeal was allowed and a retrial was ordered.
At his retrial in 2002, psychiatric evidence
was given that his consumption of alcohol was involuntary
as a result of chronic alcoholism and that he suffered from
a number of other psychiatric conditions which, independently
of the effects of the alcohol, might have precipitated the
loss of self control and caused him to kill. Again he was
convicted of murder and again he appealed.
On appeal, it was argued that the trial
judge had misdirected the jury by failing to draw a distinction
between the effects of the alcohol consumed and the disease
of alcoholism when considering whether the provocation alleged
might have made the reasonable person do as D did.
The decision of the Court of Appeal
The appeal was allowed. The trial judge
should have directed the jury that they were entitled to
take into account the disease of alcoholism from which D
suffered. The Attorney General appealed to the Privy Council.
The decision of the Privy Council.
The Privy Council allowed the prosecutor's
appeal. Although the Court of Appeal had faultlessly applied
the approach in Smith, the Board, comprising nine members,
Lords Bingham, Hoffman, Carswell dissenting, advised that
that approach was flawed. Evidence that D was suffering
from chronic alcoholism was not a matter to be taken into
account by the jury when considering whether a person having
ordinary powers of self control would have done as the defendant
The 1957 Act set a purely objective standard
by reference to which the conduct of D should be evaluated.
Although characteristics of D were to be taken into account
when assessing the gravity of the provocation, the standard
of self control to be expected was invariable save in respect
of the age and sex of D. Lord Nicholls, delivering the leading
judgment, stated that the majority view in Smith involved
a significant relaxation of the uniform, objective standard
adopted by Parliament and advised:
|"Whether the provocative acts
or words and the defendant's response met the 'ordinary
person' standard prescribed by the statute is the question
the jury must consider, not the altogether looser question
of whether, having regard to all the circumstances,
the jury consider the loss of self control was sufficient
excusable. The statute does not leave each jury free
to set whatever standard they consider appropriate in
the circumstances by which to judge whether the defendant's
conduct is 'excusable'."
Lord Nicholls added that although the reasonable
man formulation did not present the degree of difficulty
for juries supposed by the majority in Smith he acknowledged
that it was not the 'best choice of words' and referred
with approval to the approach taken by Lord Hobhouse, dissenting,
|"[T]he jury should decide whether
in their opinion, having regard to the actual provocation...
and their view as to its gravity... 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 [this issue]. 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."
The decision in Smith had enlarged the
scope of the defence of provocation and, as the Privy Council
point out, was inconsistent with Camplin, Morhall.
Luc Thiet Thuan and with the terms of s 3 itself.
The function of the objective test is to set a standard
by reference to ‘the degree of self-control to be
expected of the ordinary person’ (Lord Diplock in
Camplin, p 717).
Those who are incapable of exercising ordinary
self-control may have a partial excuse for their actions
but ought not to be able to rely on the defence of provocation.
Where an individual is provoked by a trivial insult and,
because of mental abnormality cannot exercise ordinary self-control,
his loss of self-control should be ascribed to his psychological
make-up rather than to the provocation he received and,
if the offence is to be partially excused, it ought to be
on the basis that his mental abnormality has diminished
Section 2 of the 1957 Act specifically creates
the defence of diminished responsibility, which provides
an excuse for those whose mental responsibility is impaired
as a result of an abnormality of mind. By allowing abnormal
psychiatric conditions as such to be attributed to the reasonable
person, the decision in Smith indirectly incorporated
an element of diminished responsibility into the law of
provocation and whereas the burden of proving diminished
responsibility falls on the defendant the burden is with
the prosecution in respect of provocation ( s 2(6) Homicide
Act 1957). Thus by raising the defence of provocation and
introducing medical evidence of an abnormal condition impairing
the defendant’s powers of self-control, the defendant
could evade the burden of proof imposed by s 2(6).
The approach of the majority in Smith allowed the accused
is to be judged by his own impaired powers of self-control
By introducing a variable standard of self-control, the
foundation of the defence was clearly undermined.
The judgment of the Privy Council in Holley
is to be welcomed. It has restored the objective element
of the test and is likely to meet with the approval of most
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