R v Smith (Morgan)

Under section 3 of the Homicide Act 1957, a jury considering provocation may take account of a defendant’s relevant characteristics when deciding the degree of self-control reasonably expected of that defendant. The general standard remains the self-control which society expects from its members. A violent or unusually excitable disposition does not itself provide an excuse.

Once there is evidence that provocation caused a loss of self-control, the sufficiency of the provocation is for the jury. A judge must not direct the jury that a relevant characteristic, including depressive illness, is legally immaterial. The jury may consider whether justice requires allowance for that characteristic while maintaining an objective standard of behaviour.

The respondent was convicted of murdering a friend whom he stabbed during a drunken argument. He relied on lack of murderous intent, diminished responsibility and provocation. Psychiatric evidence indicated that he suffered from clinical depression which could reduce his ability to control violent reactions.

The trial judge directed the jury that depression could affect the gravity of the provocation but that its disinhibiting effect was irrelevant to the standard of self-control. The Court of Appeal allowed the respondent’s appeal on that ground and substituted a verdict of manslaughter. It rejected his other grounds of appeal.

The Crown appealed. The certified question was whether characteristics other than age and sex could be attributed to the reasonable person under section 3 of the Homicide Act 1957 when assessing the standard of self-control, as well as the gravity of the provocation.

1. By a majority, the Crown’s appeal was dismissed. Lord Slynn of Hadley, Lord Hoffmann and Lord Clyde held that the trial judge had wrongly directed the jury that the effect of the respondent’s depression upon his powers of self-control was legally irrelevant. Whether to take that effect into account was for the jury.

2. Per Lord Hoffmann, section 3 of the Homicide Act 1957 altered the respective functions of judge and jury. Once there is evidence upon which the jury could find that something caused the accused to lose self-control, the judge cannot withdraw the objective question because the judge considers the response unreasonable. The jury has a normative role in deciding whether the loss of control is sufficiently excusable to reduce murder to manslaughter.

3. Per Lord Hoffmann, the law ordinarily expects the same standards of behaviour from everyone. It does not excuse violent rages, childish tantrums or an anti-social disposition. That principle is not a rigid rule. A jury may conclude that a temporary or permanent characteristic affected the control which society could reasonably expect from the accused and that justice requires it to be considered.

4. Per Lord Slynn and Lord Clyde, relevant characteristics may bear both on the gravity of the provocation and on the degree of self-control reasonably expected. The jury must still determine whether the accused exercised the control reasonably expected of someone in that situation. Exceptional pugnacity, excitability and other self-induced influences cannot themselves reduce the standard.

5. Per Lord Hoffmann, judges need not construct a hypothetical reasonable person endowed with unreasonable characteristics. The jury may instead be told that actual loss of self-control is insufficient; it must decide whether the circumstances provided a sufficient excuse, applying contemporary community standards while allowing for human frailty.

6. The majority held that diminished responsibility and provocation are distinct partial defences but may overlap. Section 2 does not require characteristics capable of supporting diminished responsibility to be excluded from consideration under section 3.

7. Lord Millett and Lord Hobhouse of Woodborough dissented. They considered that the objective element required the self-control of an ordinary person and that reduced capacity caused by mental abnormality belonged within diminished responsibility. They would have allowed the appeal and restored the murder conviction.

1. House of Lords: The Crown’s appeal was dismissed by a majority of three to two. The Court of Appeal’s substitution of a manslaughter verdict therefore remained effective.
2. Court of Appeal (Criminal Division): The respondent’s appeal against conviction was allowed because the direction on provocation wrongly excluded the effect of depressive illness upon self-control. A verdict of manslaughter was substituted. The other grounds were rejected.
3. Crown Court: The respondent was convicted of murder by a majority verdict of ten to two after the jury rejected lack of murderous intent, diminished responsibility and provocation.