Weller, R v

For the objective element of provocation under Homicide Act 1957, section 3, the jury must consider all the circumstances. Those matters may include the defendant’s personal characteristics and mental state. A judge must not direct the jury to disregard any such matter as a rule of law.

The judge may guide the jury on the weight to be given to a characteristic, provided the jury remains free to decide whether the loss of self-control was sufficiently excusable. Directions must be read as a whole. An unfortunate omission when a direction is repeated will not make a murder conviction unsafe where the original direction correctly left the relevant characteristics open for the jury’s consideration.

The appellant was convicted of murdering his girlfriend after strangling her during an argument concerning the end of their relationship. At trial, the only issue was whether he was guilty of murder or manslaughter by reason of provocation.

He appealed from the conviction before Hallett J in the Crown Court at Bristol. The appeal challenged the adequacy of the directions on provocation, particularly whether the jury could take account of his possessiveness and jealousy when considering the objective element of the defence following R v Smith (Morgan) [2001] A.C. 146.

1. Appeal dismissed. The conviction for murder was not unsafe.
2. Provocation involved two distinct matters. The first was whether the defendant had in fact suddenly and temporarily lost self-control. That was a factual question. The second, governed by section 3 of the Homicide Act 1957, was whether the loss of self-control was sufficiently excusable to reduce murder to manslaughter.
3. Applying the majority reasoning in R v Smith (Morgan) [2001] A.C. 146, the objective question was for the jury to answer after considering all matters, including the defendant’s characteristics, mental state and the circumstances of the killing. The judge must not tell the jury that the law requires it to ignore any relevant characteristic. The judge could give guidance about the appropriate weight of a characteristic, but had to preserve the jury’s statutory role.
4. The trial judge’s original direction did so. It required the jury to consider all the circumstances and to decide what society expected of a person in the appellant’s position. It therefore left the appellant’s jealousy and obsessiveness available for consideration. The omission of that phrase when the direction was later repeated was unfortunate, but the two directions had to be read together. The jury had never been told to disregard those characteristics, and the omission could not have affected the safety of the verdict.
5. By way of guidance, the court added that identifying the particular characteristics relied upon may often be the better course. It also commended providing proposed provocation directions to counsel in writing and indicated that written directions for the jury may assist understanding.

• Court of Appeal (Criminal Division): dismissed the appeal against the appellant’s murder conviction.
• Crown Court at Bristol: the appellant was convicted of murder before Hallett J on 1 November 2001.