Miao, R. v

Under section 3 of the Homicide Act, a judge must leave provocation to the jury only where the evidence could reasonably support a finding that specific provoking conduct caused the defendant actually to lose self-control. A merely speculative possibility is insufficient.

The threshold applies both to evidence of provoking conduct and to evidence of actual loss of self-control. Evidence which is minimal or fanciful does not create a triable issue. The judge must assess the whole of the evidence before deciding whether the statutory issue arises.

The appellant was convicted of murder at Kingston upon Thames Crown Court before Judge Tilling and sentenced to life imprisonment. He admitted causing the death of the woman with whom he lived, but denied intending to kill or cause really serious harm.

His account was that, after she accused and assaulted him, he put a hand to her throat while trying to stop her attracting attention. He denied losing control. Medical evidence indicated sustained, severe strangulation and the prosecution relied on prior violence and threats.

Although both counsel invited the judge to leave provocation to the jury, the judge declined to do so. The appeal challenged that ruling.

1. Appeal dismissed. The judge was correct not to leave provocation to the jury.

2. Section 3 of the Homicide Act requires the judge first to decide whether there is evidence on which a jury could find that the defendant was provoked by words or conduct to lose self-control. The issue must be left to the jury if there is sufficient evidence. It must not be left where the suggested loss of control is only a speculative possibility.

3. The court applied the test stated by Lord Steyn in R v Acott [1997] 2 Cr App R 94. The evidence must permit a reasonable, rather than speculative, finding of specific provoking conduct resulting in loss of self-control. The earlier suggestion in R v Rossiter that however tenuous evidence required the issue to be left could not survive that test.

4. There was evidence capable of amounting to provocative conduct if the appellant's account were accepted. But there was no sufficient evidence that it caused him to lose self-control. He consistently denied loss of control, denied intending serious injury, and denied the sustained pressure which the medical evidence showed was required. The absence of evidence of a frenzied attack and the evidence of previous violence reinforced that conclusion.

5. Accordingly, the judge properly held that section 3 did not raise a triable issue of provocation. The murder conviction stood.

• Court of Appeal (Criminal Division): Dismissed the appeal against conviction by leave of the Single Judge.

• Crown Court at Kingston upon Thames: On 26 April 2002, Judge Tilling convicted the appellant of murder and imposed life imprisonment.