Serrano, R v

Under section 3 of the Homicide Act 1957, a judge must leave provocation to the jury only where there is evidence capable of showing specific provocative conduct which actually caused the defendant to lose self-control. A speculative possibility is insufficient.

Loss of self-control requires more than an instinctive or reflexive response to violence. A former boxer’s asserted reflex counterpunch, without evidence of a temporary loss of mastery caused by provocation, does not satisfy the statutory threshold.

Serrano was convicted of murder at the Central Criminal Court in 1972 and sentenced to life imprisonment. His applications for leave to appeal were refused in 1973.

Following a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, he appealed on the ground that the trial judge should have left provocation to the jury. His account was that, after sexual activity and a dispute over money, the deceased threatened to raise an alarm, threw an object, grabbed and punched him, and he responded with a combination of punches.

The central issue was whether that evidence raised a legally sufficient issue of provocation under section 3 of the Homicide Act 1957.

1. Appeal dismissed. The omission of a provocation direction did not render the murder conviction unsafe. On the evidence, provocation did not arise.

2. Section 3 of the Homicide Act 1957 requires evidence of specific conduct or words capable of causing, and actually causing, a loss of self-control. Following Acott [1997] 2 Cr App R 94, the judge must decide whether there is sufficient material for a jury to find that this was a reasonable possibility, rather than a speculative one. If there is such evidence, the jury decides the issue; if not, it must not be left to them.

3. The appellant’s own evidence excluded the asserted amusement about his failure to obtain an erection, and the throwing of an object, as causes of any loss of control. His response to the punch on the nose was described as an instinctive boxer’s reaction. Applying the account of loss of self-control in Whitfield 63 Cr App R 39, that was not the sudden and temporary domination by passion required by the statutory defence.

4. The medical evidence was also much more consistent with a sustained and calculated attack than with a frenzied attack following loss of self-control. The court therefore found no relevant provocative conduct resulting in loss of self-control. It did not decide whether an appellate court could nevertheless uphold a conviction where provocation should have been left to the jury, although it observed that this can occur in an appropriate case.

• Court of Appeal (Criminal Division): On a reference by the Criminal Cases Review Commission under section 9 of the Criminal Appeal Act 1995, dismissed the appeal against conviction: [2006] EWCA Crim 3182.
• Full Court: Refused the renewed application for leave to appeal against conviction in 1973.
• Central Criminal Court: Convicted Serrano of murder on 26 June 1972 and imposed life imprisonment.