Gittins & Anor, R. v

Where there is evidence of specific provoking conduct and evidence that it caused a loss of self-control, provocation should ordinarily be left to the jury. This may be so even where the defendant has not advanced provocation and relies instead on self-defence. The issue need not be left where the possibility that the defendant acted through provocation is merely speculative, minimal or fanciful.

At Leeds Crown Court, Marvin Gittins was convicted of murder and sentenced to life imprisonment. Jermaine Ellison, charged with murder, was convicted of manslaughter and sentenced to eight years’ imprisonment.

Gittins renewed an application for leave to appeal against conviction after refusal by the single judge. He contended that the trial judge should have left provocation to the jury, although his defence was self-defence and he had not relied on provocation. Ellison appealed against sentence.

The court considered whether the evidence of the deceased’s conduct and Gittins’s reactions arguably raised provocation beyond a fanciful or speculative possibility.

1. Gittins was granted leave to appeal against conviction. The court held that the evidence was arguably capable of showing both provoking conduct and a resulting loss of self-control that went beyond a fanciful or speculative possibility.

2. The court stated that, under Homicide Act 1957, section 3, provocation should be left to the jury where there is evidence of specific provoking conduct and evidence that it caused the defendant to lose self-control. That approach can apply although provocation was not advanced by the defendant and is inconsistent with the defence of self-defence.

3. The court accepted the limiting principle drawn from R v Acott [1997] 2 Cr App R (S) 94: the issue need not be left where the possibility of action caused by provocation is only speculative. On the material identified, the proposed ground warranted consideration by the full court.

4. Ellison’s sentence appeal was adjourned to be heard with Gittins’s appeal. Determining it immediately might improperly constrain the full court or prove adverse to Ellison’s interests if Gittins’s appeal succeeded.

• Court of Appeal (Criminal Division): Gittins’s renewed application for leave to appeal against conviction was granted. Ellison’s appeal against sentence was adjourned for hearing with Gittins’s appeal.

• Crown Court at Leeds: Gittins was convicted of murder and sentenced to life imprisonment. Ellison was convicted of manslaughter and sentenced to eight years’ imprisonment.