Farnell, R v

Where provocation is left on the evidence, Homicide Act of 1967, section 3 requires the jury to determine whether the provocation was sufficient to make a reasonable person act as the defendant did. A direction which effectively invites the jury to give no real consideration to that question is defective. The reasonable-person assessment must also be made in the light of relevant medical evidence about the defendant’s condition. A murder conviction is unsafe if, absent such defects, the jury’s verdict might reasonably have been different. Where an unlawful killing is admitted and no retrial is sought, the court may substitute manslaughter by reason of provocation.

The appellant was convicted of murder at Winchester Crown Court in March 1996 after a retrial. His defence was diminished responsibility based on depression. Although the judge directed the jury on provocation, trial counsel had accepted that no reasonable person could have reacted as the appellant did.

After the Criminal Cases Review Commission twice declined to refer the conviction, the Divisional Court quashed that decision and remitted the matter for reconsideration. The Commission then referred the conviction to the Court of Appeal.

The central issues were whether the provocation direction complied with section 3 of the Homicide Act of 1967, whether the medical evidence should have informed the reasonable-person question, and whether the conviction nevertheless remained safe.

1. Appeal allowed. The court quashed the murder conviction, substituted a conviction for manslaughter by reason of provocation, and replaced the life sentence with eight years’ imprisonment.

2. Section 3 of the Homicide Act of 1967 required the jury to decide whether the alleged provocation was enough to make a reasonable person do as the appellant did. There was evidence on which a reasonable jury could find an actual loss of self-control. The judge nevertheless drew attention to counsel’s concession that no reasonable person could have reacted by striking the deceased with a crowbar, and suggested that the jury need not spend long on the issue. That did not comply with section 3.

3. Further, following R v Smith (Morgan) [2001] 1 AC 146, the jury should have assessed the reasonable-person question against the medical evidence concerning the appellant’s condition. The existing psychiatric evidence was sufficient to require a more elaborate direction; it was unnecessary to hear the proposed fresh evidence.

4. Applying the safety test stated in R v Josephine Smith [2002] EWCA Crim 261 and derived from Pendleton [2002] 1 WLR 72, the court could not be sure that the verdict would have been the same. It might reasonably have been different. The murder conviction was therefore unsafe.

5. The Crown did not seek a retrial. Since the appellant admitted an unlawful killing, manslaughter by reason of provocation was substituted. In sentencing, the court remained loyal to that notional verdict but held that the provocation was at the very low end of the scale and that the appellant’s conduct was appalling. It made the usual defendant’s costs order in respect of the pre-legal-aid costs, subject to assessment.

• Court of Appeal (Criminal Division): Allowed the appeal in [2005] EWCA Crim 1021, quashed the murder conviction, substituted manslaughter by reason of provocation, and imposed eight years’ imprisonment.
• High Court (Divisional Court): On 15 April 2003, quashed the Criminal Cases Review Commission’s decision not to refer the conviction and remitted the matter for reconsideration.
• Crown Court at Winchester: The appellant was convicted of murder on 22 March 1996 after a retrial. An earlier trial in December 1995 had ended with a discharged jury.