In Mohammed the Court
of Appeal considered the admissibility and relevance of
evidence of D's past violence where, to a charge of murder,
D had raised the defence of provocation.
Background - 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 the jury are required to consider
whether 'the provocation was enough to make a reasonable
man do as [D] did.' 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, in respect of the evaluative question,
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
acknowledged, however, that, in addition to age and sex,
characteristics which affected the gravity of the provocation
to D should be taken into account.
In Smith (Morgan)  1 AC 146
the House of Lords took a different approach. Lord Hoffman
held that the evaluative test was better expressed in terms
of whether the jury 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.'
Furthermore, 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
This approach was followed by the Court
of Appeal in Weller  EWCA Crim 815 and Rowland
 EWCA 3636.
In Holley 
3 All ER 371 , however, the Privy Council regarded
Smith as wrongly decided. 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.
Facts and trial
D, a devout Moslem, returned from the mosque
one evening and discovered a young man, who he believed
was having a relationship with his daughter, leaving her
bedroom via the window. D then went downstairs and found
his daughter whom he killed by repeatedly stabbing her with
a knife. D was charged with murder and raised the defence
of provocation. He said that as a devout Muslim he believed
his daughter should enter an arranged marriage and that
sex outside marriage brought shame on his family. His discovery
had caused him to lose self-control and that in addition
following the death of his wife five years earlier he suffered
A number of relatives gave evidence that
D had a violent temperament and that he had repeatedly been
violent towards his daughters and his wife. The Crown introduced
this evidence to refute D's contention that his conduct
had been a result of a loss of self control. D, it was argued,
lost his temper easily and the fatal attack on his daughter
was an act of controlled violence.
The trial judge explained that, for the
purposes of the defence of provocation, loss of self-control
was more than a mere loss of temper. If the jury were sure
that D suffered from a violent disposition and that was
the sole cause of his loss of self-control then the defence
failed. In respect of the evaluative question, in accordance
with the approach adopted in Smith, he directed
the jury to consider whether D's personality and background
reduced his power of self-control and if so, whether it
amounted to a sufficient excuse for the killing to reduce
the crime from murder to manslaughter. In addition he pointed
out that a person cannot rely on their violent disposition
to excuse their conduct.
He was convicted of murder and appealed
on the grounds that the judge ought not to have allowed
evidence of D's past violence.
The decision of the Court of Appeal
1. The distinction between loss of self
control which may excuse and a loss of temper which does
not is a fine one and is a matter for the jury.
2. Although the judge's direction accurately
reflected the law of provocation at the time, the later
decision of Holley had returned the law to how
it was understood before Smith.
Thus, although D's temperament and background
was relevant to the factual question whether D had lost
his self control it was not relevant to the evaluative question.
The standard set by the evaluative test is a constant objective
Scott Baker LJ delivering the judgment of
the Court of Appeal said that the standard of self control
was set by section 3 and was that which might be expected
of a reasonable person of the age and sex of the defendant.
Lord Hoffman's test of excusability, he stated, was an 'unwarranted
Scott Baker LJ concluded:
|"Properly directed the jury should
therefore have applied a narrow and strict test of a
man with ordinary powers of self-control rather than
the wider test of excusability that was put to them
by the judge. The jury having convicted on the basis
of the wider test, we cannot see any unsafety in the
conviction. The same result would have been inevitable
if the provocation direction had been on the basis of
The Court of Appeal in the instant case
accepted without argument that the majority opinion in Holley
represented the current law of England and Wales. It will
be recalled that in Campbell (1997), which concerned
the same issue as the instant case, the Court of Appeal
held that the decision of the Privy Council in Luc Thiet
Thuan did not overrule previous decisions of the Court
of Appeal. It is, therefore, surprising that the Court of
Appeal did not observe the orthodox approach to precedent
and consider itself bound by the decision of the House in
Smith. It is submitted, however, that as Holley
is the better decision and in line with earlier authorities,
that the Court of Appeal is persuaded by the reasoning of
the Board when the issue is next fully argued before it.
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