Regina v Smith

The House of Lords considered the scope of the objective limb of the defence of provocation under section 3 of the Homicide Act 1957 and whether characteristics of the accused other than age and sex may be attributed to the notional "reasonable man" for the purpose of assessing the standard of self‑control to be expected. The majority held that section 3 did not permit judges to direct juries, as a matter of law, to exclude from the objective assessment relevant personal characteristics of the defendant (for example clinical depression) where those characteristics properly bear on the gravity of the provocation or on the reasonable expectations of self‑control. The jury — not the judge — must decide whether a person in the accused's situation, albeit exercising ordinary powers of self‑control, would have reacted as the accused did. The decision emphasised the distinct roles of the defences of provocation (common law, burden on prosecution to disprove) and diminished responsibility (statutory, burden on defendant under section 2) and warned against collapsing one into the other.

The respondent (Smith) was convicted of murder after a jury rejected defences of lack of intent, diminished responsibility and provocation. At trial there was psychiatric evidence that the respondent suffered from clinical depression which might have "disinhibited" him and reduced his powers of self‑control. The trial judge directed the jury that any depressive illness could be taken into account only when assessing the gravity of the provocation, but not when assessing whether the accused possessed the standard of self‑control attributable to the reasonable man.

The Court of Appeal allowed the defendant's appeal on the provocation direction and substituted a verdict of manslaughter, holding that evidence of the defendant's mental state should be left to the jury when considering the objective limb. The Crown obtained leave to appeal to the House of Lords on a certified question whether characteristics other than age and sex could be attributed to the reasonable man for purposes of both the gravity of the provocation and the standard of self‑control.

The House of Lords (majority) analysed the history and purpose of section 3 Homicide Act 1957, the decisions in Bedder, Camplin and subsequent authorities, and the distinction between the two elements of provocation (subjective loss of self‑control and objective sufficiency). The majority held that section 3 intended to leave the question of the sufficiency of provocation to the jury and to permit the jury to take into account everything done and said, including relevant personal characteristics, in deciding what a reasonable person in the accused's situation would have done. The court warned that judges should avoid introducing legal fetters on the jury by excluding relevant evidence and recommended clear, non‑anthropomorphic directions explaining that the jury should assess whether the provocation was sufficient to make a person with ordinary powers of self‑control, placed in the accused's situation, act as the accused did. The House therefore dismissed the Crown's appeal and upheld the Court of Appeal's substitution of manslaughter on the provocation ground, although one Law Lord (Lord Millett) dissented and would have allowed the Crown's appeal and restored the murder conviction.

Appeal dismissed. The House of Lords (majority) held that section 3 of the Homicide Act 1957 leaves to the jury the question whether the provocation was sufficient to make a reasonable man do as the accused did and requires the jury to take into account "everything both done and said" according to its effect upon a reasonable man. Relevant personal characteristics (beyond age and sex) may be considered by the jury where they affect the gravity of the provocation or the assessment of how a reasonable person similarly situated would have reacted; a judge should not as a matter of law exclude evidence (such as depressive illness) which may bear on the objective inquiry. The defence of diminished responsibility under section 2 remains a distinct statutory avenue for mental abnormality.

At first instance before Judge Coombe the defendant was tried and convicted of murder by a jury (majority verdict). The Court of Appeal (Rose L.J., Potts and Douglas Brown J.J.) allowed the defendant's appeal on the ground that the trial judge misdirected the jury on provocation and substituted a verdict of manslaughter. The Crown obtained leave to appeal to the House of Lords; the House delivered its judgment in Smith, R v. [2000] UKHL 49 (27 July 2000).