R v Acott

On a murder charge, provocation may be left to the jury only where evidence from any source supports a reasonable possibility that specific words or conduct caused the accused to lose self-control. Evidence merely suggesting a loss of temper, coupled with speculation about an unidentified provoking event, does not suffice.

Once that evidential threshold is met, the objective sufficiency of the provocation is exclusively for the jury. Proportionality remains relevant to that assessment, but it is not a fixed rule of law. The prosecution retains the legal burden of disproving provocation.

The appellant was convicted at the Central Criminal Court of murdering his mother. He denied attacking her and maintained that her injuries resulted from falls and his attempts at resuscitation. The trial judge consequently directed the jury that the case was murder or nothing and did not leave provocation.

The Court of Appeal (Criminal Division) dismissed his appeal: R v Acott [1996] 4 All E.R. 443. It held that evidence of loss of self-control was insufficient without some direct or inferential evidence of what had been done or said to provoke it.

The certified question was whether a judge must have some evidence of the words or conduct causing the alleged loss of self-control before being obliged to leave provocation to the jury.

Appeal dismissed unanimously. Lord Steyn delivered the leading speech. Lord Mustill, Lord Nolan, Lord Nicholls of Birkenhead and Lord Hoffmann agreed with his reasons.

1. Per Lord Steyn, section 3 of the Homicide Act 1957 comprised three elements: provoking words or conduct; a causally connected loss of self-control; and the objective question whether the provocation was enough to make a reasonable man act as the accused did. The judge must determine whether evidence supports the first two elements. Once that threshold is crossed, the objective question belongs exclusively to the jury.

2. The threshold requires evidence, from any source, supporting a reasonable possibility that specific provoking words or conduct caused the loss of self-control. A loss of control attributable merely to fear, panic, bad temper or circumstances is insufficient. Speculation that an unidentified provoking event might have occurred creates no triable issue. Conversely, where qualifying evidence exists, the judge must leave provocation even if the accused did not rely upon it at trial.

3. Suggestions made by prosecuting counsel in cross-examination could not themselves raise provocation. The appellant denied both the suggested anger and any conduct by his mother which might have caused it. The evidence therefore remained devoid of a specific provoking event.

4. The deceased's injuries could support an inference that the appellant lost self-control and attacked in anger. His dependence upon his mother and evidence that she sometimes treated him like a child did not rationally support the further inference that a particular provoking event occurred. That inference was speculative, so the trial judge correctly withheld provocation.

5. R v Camplin [1978] AC 705 established that section 3 abolished fixed rules governing the objective sufficiency of provocation. Proportionality between provocation and retaliation nevertheless remained an important factual consideration for the jury when assessing the seriousness of the provocation.

6. The sufficiency of evidence at the threshold is a matter of logic, common sense and degree, requiring close attention to the circumstances. It is not amenable to a further general legal formula. The governing principles remained subject to the prosecution's legal burden to disprove provocation; the defence needed only to identify material capable of inducing a reasonable doubt.

1. House of Lords: Dismissed the appeal unanimously and upheld the conclusion that provocation was properly withheld from the jury: [1997] UKHL 5.
2. Court of Appeal (Criminal Division): Dismissed the appeal, holding that there was no evidence of any specific words or conduct capable of constituting provocation: [1996] 4 All E.R. 443. It certified a point of law of public importance and granted leave to appeal.
3. Central Criminal Court: The Recorder of London did not leave provocation to the jury. The appellant was convicted of murder by a majority verdict.