Ellis v R

For a historic murder conviction, the appellate court applies the substantive law in force at trial. Later statutory changes to homicide law, including the expanded statutory law of provocation and diminished responsibility under the Homicide Act 1957, cannot be applied retrospectively.

Under the pre-1957 common law, provocation required a recognised triggering event and a sudden and temporary loss of self-control. A history of violence could provide context, but it could not replace the required trigger. Jealousy, possessiveness, omissions and a planned response did not provide a basis on which provocation should be left to the jury.

In 1955, Ruth Ellis was convicted at the Central Criminal Court of the murder of David Blakely and sentenced to death. She did not appeal. The Criminal Cases Review Commission later referred the conviction to the Court of Appeal.

The principal issue was whether the trial judge had wrongly withdrawn provocation from the jury. The appellant also contended that later developments in provocation, and evidence said to support diminished responsibility, rendered the conviction unsafe. The court had to decide whether the conviction was safe under the law applicable before the Homicide Act 1957.

1. Appeal dismissed. The conviction was safe. The court was required to apply the substantive law of murder in force in 1955. It could not apply retrospectively the statutory changes made by the Homicide Act 1957, including diminished responsibility and the amended law of provocation. The court followed R v Derek Bentley (2001) 1 Cr.App.R. 307 on that approach.

2. Section 3 of the Homicide Act 1957 amended, rather than codified, the common law of provocation. Its allowance for everything done or said, and its direction that the jury determine the reasonable-person question where there is evidence of loss of self-control, materially altered the former law. The later relevance of a defendant’s personal characteristics was a consequence of that statutory change, as explained in Camplin [1978] A C 705.

3. The Crown had proceeded at trial on the erroneous view that an intentional killing necessarily excluded provocation. However, the trial judge’s ruling did not rest on that error. He withdrew provocation because no reasonable jury could regard the alleged provocation as sufficient to produce a proportionate response of the degree, method and continuance of violence used. That was the test derived from Holmes v DPP [1946] AC 588.

4. The appellant’s history of violence was relevant background, but a case of slow-burn provocation still required a recognised triggering event. The deceased’s failure to return, concealment of his whereabouts and failure to communicate were omissions, not qualifying provocative acts under the pre-1957 common law. Even abusive words would not then have sufficed.

5. There was also no sudden and temporary loss of self-control, an essential feature stated in R v Duffy (Note) [1949] 1 All ER 932. The last physical violence had occurred about a fortnight earlier, and the evidence showed a planned killing. The judge was therefore right to withdraw provocation from the jury.

6. The court declined to receive either party’s fresh evidence. The appellant’s psychiatric evidence could not affect the legal issues under the pre-1957 law, while the Crown’s proposed evidence was unnecessary to determine the appeal.

• Court of Appeal (Criminal Division) Dismissed the appeal following a reference by the Criminal Cases Review Commission and upheld the murder conviction.
• Central Criminal Court In 1955, convicted Ruth Ellis of murder and imposed the death sentence. No appeal was brought at that time.