Crime

Murder - defence of provocation - judge directing jury to disregard defendant's mental impairment in determining standard of self-control to be expected - misdirectionR v Smith (Morgan): HL (Lord Slynn of Hadley, Lord Hoffmann, Lord Clyde, Lord Millett and Lord Hobhouse of Woodborough): 27 July 2000

The defendant was tried for murder and relied on the defence of provocation.

He adduced medical evidence that he was suffering from a depressive illness which reduced his powers of self-control.

The judge directed the jury that the defendant's depressive illness was a characteristic to be attributed to the notional reasonable man when determining whether it affected the gravity of the provocation to a reasonable man, but not his loss of self-control.

The jury convicted the defendant of murder and he appealed.

The Court of Appeal [1999] QB 1079 allowed on the ground that the judge had erred in his direction to the jury on provocation, and accordingly, quashed the conviction for murder and substituted a conviction for manslaughter.

The prosecution appealed.

Bruce Houlder QC and David Perry (instructed by Crown Prosecution Service) for the Crown; Peter Thornton QC and Richard Pratt (instructed by Michael Lipman & Co) for the defendant.

Held, dismissing the appeal, Lord Hobhouse of Woodborough and Lord Millett dissenting, that it would not be consistent with s.3 of the 1957 Act, and would be to trespass upon the province of the jury, 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 the concept of the 'reasonable man' had 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 was entitled to expect; that although s.3 invoked the standard of the 'reasonable man', it was not intended to require judges always to use that particular image even in cases in which its use was more likely to confuse than illuminate; that judges were not required to describe the objective element in the provocation defence by reference to a reasonable man, but might instead find it helpful to explain in simple language the principles of the doctrine of provocation; that, in the present case, the judge should not have directed the jury as a matter of law that the effect of the defendant's depression on his powers of self-control was 'neither here nor there', and; that they should have been told that whether they took it into account in relation to the question of whether the defendant's behaviour 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.