James, R v

Exceptionally, the Court of Appeal may prefer an enlarged Judicial Committee decision to an earlier House of Lords decision where all the Law Lords who sat agree that the majority ruling definitively states English law, the majority comprises half the Appellate Committee, and a House of Lords appeal would inevitably reach the same result. This is not a general licence to depart from House of Lords authority.

For provocation under section 3 of the Homicide Act 1957, the governing rule was that in Attorney General for Jersey v Holley [2005] UKPC 23, rather than R v Smith (Morgan) [2001] 1 AC 146. The objective limb requires ordinary powers of self-control, while the jury may assess the gravity of the actual provocation to the defendant.

These conjoined appeals concerned murder convictions and the direction on provocation under section 3 of the Homicide Act 1957.

James had been convicted after a direction requiring the standard of self-control expected of a reasonable man. His case was later referred by the Criminal Cases Review Commission because R v Smith (Morgan) [2001] 1 AC 146 had appeared to make psychiatric evidence of impaired self-control relevant.

Karimi’s earlier conviction had been quashed following a Criminal Cases Review Commission reference, because his first trial direction was inconsistent with R v Smith (Morgan). At his retrial, the judge instead directed the jury in accordance with Attorney General for Jersey v Holley [2005] UKPC 23, and he was again convicted of murder.

The common issue was whether the Court of Appeal had to follow R v Smith (Morgan), or should treat Attorney General for Jersey v Holley as the definitive statement of English law.

1. Both appeals were dismissed. The Court held that, in the exceptional circumstances of this case, it should prefer the majority decision in Attorney General for Jersey v Holley [2005] UKPC 23 to the earlier majority decision in R v Smith (Morgan) [2001] 1 AC 146.

2. The ordinary rule remained that the Court of Appeal was bound by House of Lords authority and that Privy Council decisions were generally persuasive only. But all nine Lords of Appeal in Ordinary who sat in Attorney General for Jersey v Holley agreed that the majority ruling definitively clarified English law. The six-judge majority comprised half the Appellate Committee, and the Court regarded the result of any House of Lords appeal on the issue as inevitable.

3. Those features justified treating the Privy Council ruling as taking precedence. The Court stressed that its conclusion depended on those exceptional facts and did not permit lower courts generally to decline to follow House of Lords decisions.

4. Applying Attorney General for Jersey v Holley, section 3 of the Homicide Act 1957 retained a uniform objective standard of self-control. The jury could take account of the gravity of the actual provocation to the defendant, but the second limb asked whether a person of the defendant’s age, with ordinary powers of self-control, might have acted as the defendant did. The more personalised approach in R v Smith (Morgan) was not to be followed.

5. It followed that James could not rely on the psychiatric material which would only have assisted him under R v Smith (Morgan). Karimi’s retrial judge had correctly directed the jury in accordance with Attorney General for Jersey v Holley. Each murder conviction therefore stood.

• Court of Appeal (Criminal Division): The conjoined appeals were dismissed. The Court held that Attorney General for Jersey v Holley [2005] UKPC 23 stated the applicable law of provocation.
• James: Convicted of murder at Nottingham Crown Court and sentenced to life imprisonment. An earlier appeal was dismissed on 23 March 1982. The Criminal Cases Review Commission later referred the conviction to the Court of Appeal.
• Karimi: Convicted of murder at St Albans Crown Court in 1997. Following a Criminal Cases Review Commission reference, the Court of Appeal quashed that conviction and ordered a retrial. At the retrial in the Central Criminal Court, he was again convicted of murder on 4 October 2005.