Van Dongen  EWCA Crim 1728 and in Faqir
Mohammed  EWCA Crim 1880 the Court of Appeal
assumed that, although Holley was a decision of the Privy
Council and Smith, the law of England and Wales was that
expressed by the majority opinion delivered by Lord Nicholls
in Holley. In neither Van Dongen nor Mohammed,
however, was the matter fully argued but with the decision
in James; Karimi  1 All E.R. 759 the conflict
between Smith and Holley the matter may
be regarded as resolved.
appeals were dealt with together as they raised the same
issue. The appellants had both been convicted of murder,
their pleas of provocation having been rejected by their
respective juries. The success of each appeal depended upon
the Court of Appeal preferring, as the definitive statement
of the English law of provocation, the decision of the House
of Lords in Morgan Smith rather than the subsequent decision
of the Privy Council in Holley.
the appeals raised a novel and important question of the
law relating to precedent five judge sat in the Court of
held that, although the established approach to precedent
required the Court of Appeal to follow its own previous
decisions and those of the House of Lords rather than a
decision of the Privy Council, ( see, for example, Campbell
 1 Cr App R 199 ) those established principles had
been altered by the Lords of Appeal in Ordinary sitting
on the Board of the Privy Council in Holley.
it was accepted that there were circumstances in which a
decision of the Privy Council could take precedence over
the House of Lords, the Court of Appeal was bound, in those
circumstances, to prefer the decision of the Privy Council
to the prior decision of the House of Lords.
in respect of the conflict between Smith and Holley, Lord
Phillips identified three exceptional features which justified
preferring the decision in Holley.
i) All nine of the Lords of Appeal in Ordinary sitting in
Holley agreed in the course of their judgments that the
result reached by the majority clarified definitively English
law on the issue in question.
The majority in Holley constituted half the Appellate Committee
of the House of Lords. We do not know whether there would
have been agreement that the result was definitive had the
members of the Board divided five/four.
In the circumstances, the result of any appeal on the issue
to the House of Lords is a foregone conclusion.”
the appeals were dismissed
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