Barrington Moses, R v

For provocation under section 3 of the Homicide Act 1957, the objective question concerns the self-control expected of an ordinary sober person of the defendant’s age and sex. It does not permit clinical depression or an over-controlled personality to alter that ordinary standard merely because those matters affect the particular defendant’s self-control.

A conviction is not rendered unsafe by applying the authoritative formulation where the trial direction accorded both the law then understood and the law subsequently confirmed. In those circumstances, the alleged uncertainty does not create an impermissible retrospective application of criminal law under article 7 of the European Convention on Human Rights.

In 1997, at Gloucester Crown Court, the appellant was convicted of murder and sentenced to life imprisonment for killing his former partner. His account raised diminished responsibility and provocation. The trial judge directed the jury to consider both actual loss of self-control and the response expected of a reasonable sober person of the appellant’s age and sex.

The Criminal Cases Review Commission referred the conviction under section 9 of the Criminal Appeal Act 1995. It considered that, following R v Smith (Morgan) [2001] 1 AC 146, the jury might have been entitled to take account of the appellant’s clinical depression and over-controlled personality at the objective stage. Before the appeal was heard, HM for Jersey v Holley and James and Karimi [2006] 1 All.ER 759 restored the earlier approach. The central question was whether the original direction was a misdirection and whether applying the later authorities infringed Convention rights.

Appeal dismissed. The jury direction was correct when given and remained correct under the authoritative law at the time of the appeal.

1. The direction properly reflected the two inquiries in a provocation case. The jury had first to decide whether the appellant had lost self-control. It then had to decide whether an ordinary sober person of his age and sex, taking account of what was said or done and its circumstances, might have acted as he did.

2. R v Smith (Morgan) [2001] 1 AC 146 had suggested that the appellant’s clinical depression and over-controlled personality could be considered at the second, objective stage. However, HM for Jersey v Holley had determined that the earlier law was correct and that Smith no longer represented the correct law. In James and Karimi [2006] 1 All.ER 759, the Court of Appeal had held that courts should follow Holley as the authoritative statement of the law. Those authorities required dismissal of the appeal.

3. The Court rejected the submission that articles 5, 6 or 7 of the European Convention on Human Rights made reliance on Holley uncertain or retrospectively penal. The trial direction accorded with the law as understood at trial and with the law stated in Holley. There was therefore no substance in the article 7 point.

4. The Court certified the same questions as had been certified in James and Karimi, so that the appellant would not be disadvantaged if the House of Lords revisited the conflict. It refused leave to appeal and granted a representation order limited initially to a petition for leave, and then any appeal if leave were granted.

• Court of Appeal (Criminal Division) — dismissed the appeal from the murder conviction: [2006] EWCA Crim 1721. It certified the same questions as in James and Karimi [2006] 1 All.ER 759, but refused leave to appeal.
• Criminal Cases Review Commission — referred the conviction under section 9 of the Criminal Appeal Act 1995 on a possible misdirection as to provocation.
• Crown Court at Gloucester — on 6 March 1997, before Harrison J, convicted the appellant of murder and imposed life imprisonment.