Van Dongen & Anor, R v

Where there is evidence on which a jury could reasonably find both specific provoking conduct and a resulting loss of self-control, section 3 of the Homicide Act 1957 requires provocation to be left to the jury. Direct evidence of an assault with a weapon is not merely speculative because other evidence may cast doubt on it.

An appellate court may nevertheless dismiss a murder appeal after that misdirection, but must exercise great caution. It may do so only where the facts and the necessary logic of the verdict make it certain that a properly directed jury could not reasonably have returned manslaughter.

The respondents were convicted unanimously of murder at a retrial in the Central Criminal Court. Mitchell van Dongen admitted inflicting the fatal head injuries, but relied principally on self-defence, accident and absence of murderous intent. Anthony van Dongen denied participating in the fatal attack.

Neither defendant advanced provocation at trial. Mitchell nevertheless asked the judge to leave it to the jury, relying on his evidence that the deceased had attacked the brothers with a road sign. The judge declined to do so. Both defendants appealed, contending that the omission made their murder convictions unsafe. A secondary complaint concerned the judge’s answer to a jury question about intent.

1. The conviction appeals were dismissed. The judge should have directed the jury on provocation. There was direct evidence that the deceased came at Mitchell van Dongen with a road sign, and evidence from which a loss of self-control could be inferred from the sustained and frenzied attack. That evidence was neither minimal nor speculative. In a borderline case, particularly where the defence requests it, the prudent course is to leave provocation to the jury.

2. Section 3 of the Homicide Act 1957 separates the inquiry into provoking conduct, loss of self-control, and the objective question whether the provocation was enough to make a reasonable person act as the defendant did. The first two matters must raise a reasonable evidential possibility before the issue arises. The objective question is reserved to the jury.

3. The court applied the cautious approach explained in The Queen v Franco P.C. Appeal No. 70 of 2000. A failure to leave provocation does not invariably make a conviction unsafe, but an appellate court should not speculate about an issue the jury never decided. Here, even assuming that the deceased initially attacked with the road sign and that Mitchell lost self-control, the jury’s verdict necessarily established that the subsequent attack was a sustained and intentional assault on a defenceless person on the ground. No reasonable jury could have found that the assumed provocation was enough to make a reasonable person inflict those fatal injuries. The convictions were therefore safe under section 2(1)(b) of the Criminal Appeal Act 1968.

4. Self-induced intoxication was not relevant to the ordinary standard of self-control. The judge’s later answer on intent correctly distinguished murder, which required an intent to kill or cause really serious bodily harm, from manslaughter. It was not unduly complicated.

• Court of Appeal (Criminal Division). The court dismissed the defendants’ appeals against their murder convictions: [2005] EWCA Crim 1728.
• Central Criminal Court. At a retrial before HHJ Forrester, a unanimous jury convicted both defendants of murder and each received life imprisonment with a recommended minimum term of 12 years and 11 months.
• Central Criminal Court. The first trial did not conclude because the judge became indisposed.