MANSLAUGHTER

Voluntary - convicted even without mens rea for murder. Forms: Killing under Provocation Killing under Diminished Responsibility Killing in response/pursuance suicide pact. Involuntary Forms: Killing by unlawful/dangerous act Killing by gross criminal negligence. VOLUNTARY MANSLAUGHTER Definition- Claw:- per Devlin J in Duffy [1949] Provocation=some act/series of acts, done by deceased to D which would have caused reasonable person (actually caused D) a sudden + temporary loss of self-control, rendering D subject to passion....made him/her (for the moment) not master of his mind. Lord Goddard C.J described definition as classical in form and content. Reliance today also:Ahluwalia [1992] D subjected to 10yrs of spousal abuse, threw petrol in bedroom, her husband was burnt; he later died. Held: D must prove that she suffered a sudden and temporary loss of self-control for provocation to apply as defence. Longer delay (deliberation), more likely that prosecution will negative defence. But, conviction quashed, admitted evidence of depressive condition. Salient points of definition: Provocation confined to acts done [not words]; must be directed by dead man to D [not acts of 3rd party]; must cause in D sudden + temporary loss of self control. Loss of self-control must render D subject to passion that [for moment] not master of mind. Reasonable man would have suffered similar loss of self-control. Duffys definition modified by s.3 Homicide Act 1957: Charge of murder if evidence exists (things done/said/both) that D had been provoked to lose his self-control, and reasonable man would have also been provoked, JURY shall take into account EVERYTHING done/said and the effect such would have on Reasonable man.

Camplin [1978] V, 50yrs laughed after having sex with D, 15yrs, D killed V by splitting his skull with a heavy pan. Held: Reasonable Man = person having power of self-control to be expected of ordinary person with Ds sex + age & in other respects sharing such characteristics of D as would effect gravity of provocation. He was Guilty of Manslaughter. Diplock L: - s.3 abolished all prior claw rules. NOW: Words alone could constitute provocation (even if unaccompanied by violence). Response of Reasonable Man = a matter of opinion for jury, not a matter of law for judge. Sankar v The State [1994] citing Phillips (1968) Test of Provocation in law (Jamaica O.A.P Act, s.3 c) = two fold: Question of fact: was D provoked to lose self-control? Jury Opinion: Would reasonable man have reacted to provocation as D did? Culmer [1997] s.3 = other changes were brought about: Provocation may emanate from 3rd party. Even where D uses disproportionate force in retaliating to provoking words/acts or even cooling off period between provocative act and fatal blow provocation may still apply. .consequence of opening phrase in s.3 evidence on which jury can find D was provoked. Implicit in s .3: Was D provoked to lose self-control subjective question. would the reasonable man have responded in same way as accused objective question s.3 re-nacted in Bds s.5, O.A.P Act 1994-18 Jam s.6 O.A.P Act, Cap. 168. T&T s.4B, O.A.P Act, Chap. 11:08 Belz s.118, Criminal Code, 1980 (Extreme Provocation). Bah s. 235, Penal Code. BUT not in St.Lucia Criminal Code 1992 & Dominica under the O.A.P Act, Chap.10:31. Edwards (1987). Trial judge failed in her direction to the jury to relate any facts to the law with regard to provocation. The appellants conviction for murder was set aside and a conviction for manslaughter was substituted. However, in Dominica, words (eg threats to the appellants life) unaccompanied by an act or series of acts are not sufficient in law to amount to provocation. In Duffy it was stated D must not be master of his mind Question: whether D, who has formed an intention to kill/cause G.B.H is still not master of his mind. D is actually pleading that he was provoked to form an intention to kill/cause G.B.H not that he did not have the requisite intention. Therefore the phrase, not master of his mind = misleading. Was D provoked or was killing due to premeditation / revenge?

DEFENCE applies even though D had mens rea for murder. AG of Ceylon v Perera (1953) Lord Goddard:- defence of provocation may arise where a person does intend to kill/inflict G.B.H but his intention to do so arises from sudden compassion involving loss of self control by reason of provocation. Lee Chun- Chuen [1963] Misdirection: Trial Judge directed jury that if provocation relied on by D caused in the mind of the accused an actual intention to kill/cause G.B.H then killing would be murder. Held (P.C): Lord Devlin: - where the intention to kill or cause G.B.H results not from premeditation/revenge but from loss of self control induced by provocation, D is not guilty of murder but manslaughter. Baptiste v The State (1983) Trial judge failed to allude to fact that a plea of provocation might succeed even if D had formed an intention to ill/cause G.B.H. Held: Judge must give special direction that a further burden rests on the prosecution to negate beyond a reasonable doubt the existence of such plea. Also, judge should avoid making reference to accused not being master of his own mind. Lett v R (1963) Appellant convicted of murdering another woman during a quarrel. Her defence was provocation i.e. the woman called her an old mule and that V was a socouyant who sucked blood from her causing her to lose her children during pregnancy. Held: Wooding CJ: - if the fatal blow was struck as a direct consequence and under stress of provocation, it was immaterial that there had been a previous intent to kill [unless the intent continued to be operative so that the blow was not attributable to provocative act]. Supra, Baptiste - The phrase not master of his mind has been subject to much criticism in Cwealth Cbean. This should be replaced by as to cause him to retaliate s. 3 evidence..that the person charged was provoked what is to be accounted sufficient evidence of provocation such that judge must leave to jury?? i. was there evidence of provocative conduct? ii. was there evidence that that caused D to lose his self-control?? For the first question, the fact that D killed will prima facie suggest a loss of self control caused by provocation. D may not plead provocation, rather he may plead self defence, accident or alibi .self defence asserts that he did not lose self control. Evidence of provocation comes from: i. prosecution witnesses that trial judge failed to leave the defence to the jury. ii. Counsel, on appeal, asserts

IF THERE IS ANY PROPER EVIDENCE OF PROVOCATION, NO MATTER THE SOURCE + IRRESPECTIVE OF THE DEFENCE RAISED BY D, TRIAL JUDGE IS BOOUND TO LEAVE DEFENCE TO JURY. Porritt [1961] Accused convicted of capital murder of his step father. His defence = he fired the shot in an attempt to protect the deceased from 2 members of a rival gang, 1 had held a knife at his S.F throat. D had no desire to harm his S.F as he was active member of gang D belonged to. Held: - D was prima facie guilty of murder if prosecution established that he intended to cause his S.Fs death/G.B.H, but doc of transferred malice applied. Defences were also transferred with the malice there was no duty to retreat; D, with an honest belief was guilty of manslaughter only. Bullard [1957] per Tucker L:Every man on trial for murder has right to have issue of manslaughter left to jury if there is any evidence upon which such verdict can be given. He should not be deprived of such right and if such occurs then there will have been a grave miscarriage of justice it is idle to speculate what verdict the jury would have reached. Followed in: Lett v R (1963) Judge omitted to direct jury on how they should resolve any doubt they might have as to whether the killing was provoked. Held: Jury were not adequately directed. They should have been made aware of their duty + appellants rights (priority) if they found themselves in any doubt. Manslaughter therefore substituted.

Where provocation is not directly raised in the evidence /made the subject of specific submissions to the jury as a defence, a judge is not expected to conjure up hypothetical situations which might have arisen. The judge is only required to direct the jury on provocation where there is reasonable possibility that D might have been provoked. Mancini v D.P.P [1941] Vis. Simon L.C Judges duty is not to invite jury to speculate as to provocative incidents of which there is not evidence and which cannot be reasonably inferred from the evidence. Duty of jury is to give D benefit of the doubtonly discharged having regard to the material before them i.e. evidence (alone) to go outside of this will lead to possible injustice/confusion. Followed in: Maharaj (1960) D, after having an argument with his wife later proceeded over to his in-laws house where he severed her throat with a sharp razor. He was beaten by her brother and step father but managed to escape. He denied cutting her throat and said he didnt know who killed her.

Held: the duty of the judge = deal adequately with any view of the evidence which might show that the crime committed was manslaughter and not murder this does not require him to invite the jury to speculate on incidents which, if they occurred, would have been admissible in evidence, when in fact there had been no such evidence of such incidents. Cambridge [1994] D, the deceased and their respective girlfriends spent the night out drinking in a public house. Several arguments ensued; D left the bar and fatally stabbed the deceased. He was charged with murder but at trial there was no evidence that anyone had seen the knife/actual stabbing, but State relied on evidence of Ds girlfriend, that when she went into the foyer she saw D over the deceased. However, no evidence of a struggle between parties and defence case was that killing had been done by someone else. There was no suggestion that D had been provoked so he appealed. Held:- judge was required to leave defence of provocation to the jury if there was material capable of amounting to provocation even though D did not rely on the defence [but said he was not at scene of crime]. It was for judge to decide whether there was evidence on which the jury could find that the defendant was in fact provoked to lose his self control. Even if judge believed that no reasonable man would have reacted as D did, once there was evidence of provocation he was required to leave the question up to the jury to decide. WORDS Prior to Homicide Act in England.. Holmes v D.P.P [1946] Held: only in very exceptional circumstances could words constitute provocation. BUT confession of adultery was not a circumstance. Sufficient acts of provocation: Physical threat of/infliction of, physical violence against D. Discovery of a spouse in the act of fornication (adultery) An act of bestiality against Ds wife or child. See Maddy (1671). Quaere: whether common law unions in Cwealth Cbean should be treated as lawful marriages. Hamilton (1984) Appellant had 1 foot and had been living with deceased for 7yrs; they had 3 children together. He suggested that for the sake of the children they should get married, she responded in lieu of expletives: who going marry a 1-foot man like you? Appellant got frustrated, took out a 4-5inch knife and stabbed her. Deceased brother who was outside heard the screams, went in and saw the Appellant over V. She (V) subsequently died. Held: In S.V.G, no words/gestures, however provoking will themselves constitute provocation sufficient to reduce homicide to manslaughter, if the killing is effected with a deadly weapon, or an intention to cause the deceased some G.B.H is otherwise manifested.

A confession of adultery without more could not constitute provocation, nor would a confession of unfaithfulness in a common law union. Mason (1964) deceased during pregnancy fell in love with Appellant. He moved into her apartment to live. After birth of child, deceased decided to take the child, the Appellants clothes and other articles from the apartment with her as she moved out to live with another man. She refused to return him his clothes. He came back with a few of his relatives and pleaded with her to return but she said that she had a new man 100 times sweeter than him. He pulled out a knife and fatally stabbed her in the neck. Held: The Homicide Act 1957 had not been introduced into the laws of T & T by virtue of s.2 of Evidence Ordinance and the law on provocation was therefore authoritatively stated in Holmes v D.P.P the taunts and insulting words used by the deceased were far from constituting an extreme and exceptional character, therefore, question of provocation rightly withdrawn from jury. The rule excluding words was rooted in old principle that Ds retaliation should be roughly proportional to the provocation. Objectively, for a person to kill in response to mere words would be wholly disproportionate. See Gray (1968). Contra: Knight <T &> (1969) Held: the words used were, in the circumstances, an extreme and exceptional character. Following s.3words without more may constitute provocation and it would be a serious misdirection for a trial judge to direct that as a general rule no provocation of words will reduce a crime of murder to that of manslaughter. Plinton (1965) The trial judge, after having told the jury that murder was the unprovoked killing of another without lawful justification/excuse with the intention of killing/causing G.B.H, did not go on to tell them that even if they found that there was an intent to kill/cause G.B.H, the offence might be manslaughter if the intention arose by means of provocation. He also told the jury that as a general rule no provocation of words will reduce the crime of murder to that of manslaughter but under special circumstances there may be such a provocation as would have that effect. Held: The trial judges direction as to the standard of proof was incorrect and amounted to a misdirection. The jury might have been left with the impression that it would not be necessary for them to consider manslaughter, as they had been told that if there was an intention to kill/cause G.B.H the offence would be murder. The direction was a wrong statement of the law as it is today and did not comply with s.3 c of relevant Act 1958. Quaere: Gray (1968) may have given credence to the suggestion that though under s.3, words may constitute provocation; it is arguable that s.3 has not altered the law and that it is still the case that the words used must be of an extreme and exceptional character. BUT..this conflicts with Plinton and would appear to be a back-door way of retaining the old law whilst leaving it formally to the jury to determine whether the provocation was

sufficient to warrant a manslaughter verdict. In addition, since the key question is whether D lost self control, the nature and source of the alleged provocation is irrelevant.

THIRD PARTIES s. 3 modified the suggestion in Duffy that the provocation must have been offered by V to D. Section 3 merely states that there must be evidence of provocation. It does not state from whence it should come nor against whom it should be directed. Provoking conduct directed to 3rd parties It is not essential that the conduct constituting provocation should be directed against D himself. Porritt [1961] Appellant was indicted for murder under the Homicide Act 1957 where he had shot the deceased. On the evening of the crime, Appellant was engaged in a gang warfare between his and another family. At the culmination of the stormy evening, the Appellant saw his step father being held [with a knife at his throat] by a member of the opposing gang. D pulled out his gun and endeavoured to shoot the assailant but instead shot his step father. Appellant argued that the shooting was done to protect his near relative from imminent danger. Held: it was incumbent on the judge to leave to the jury the issue of provocation and loss of self-control, for in the circumstances of this case, the jury might have thought that the Appellant shot on provocation, being no longer master of his mind when he saw his step father in imminent peril, and if that view were not displaced, the proper verdict would be manslaughter. However, in Green (1984), it was held that the defendant should be present when the provocative conduct occurred. But can this be a correct approach when the key question is whether there is evidence that D was provoked? Pearson [1992] Crim L.R. 193

D KILLS A 3rd PERSON The defence applies even though D has killed a third party. The doctrine of transferred malice applies. If D aims a blow at the provoker and kills a third party, then, if this would have been manslaughter had the provoker been killed, it will also be manslaughter of the 3rd party. See s 174 St. Lucia Criminal Code.

See Porritt [1961] i.e. (Appellant endeavouring to defend his step father instead killed him; convicted of manslaughter, provocation as defence was transferred with malice).

If D attacks the provoker as an act of vengeance but kills V by accident, that would be murder of V. Shalto v The State (1988) The deceased who was married to the Appellant moved out and went to live with a family friend her death resulted from an incident between herself and the Appellant which occurred shortly after lunch; he had shot her. Essentially, the Appellant had killed a 3rd party amidst a grave attempt to get even with another person. Held: This constituted murder and not manslaughter. It was also stated that where an accused person has made a statement out of court which admits to the acts but includes an excuse or explanation for that act, the whole statement should be left to the jury as evidence of facts, but their attention should be drawn to the different weight that they might think should attach to the admission as opposed to the explanation or excuse. D may rely on provocation where both V and a 3rd party offer provocation to D in the form of a concerted attack. Small (1965) Appellant was convicted of murder, and sentenced to death. The prosecution evidence was that the Appellant had stabbed the deceased HT in the left temple with a screw driver (death resulted from haemorrhage and cerebral damage). Evidence = HT and 2 other men attacked the Appellant and in an effort to scare them away he drew a screw driver and wielded it, it caught HT accidentally. Held: The Appellant should have been convicted of manslaughter where he, having been provoked by V and others in a concerted attack responded by wielding a screw driver which in fact caused Vs death. The same principle applies where the third party offers provocation but not in concert with V. Thompson (1971) The evidence for the prosecution was to the effect that DT, a person other than the deceased, was the aggressor in a fight with the applicant. The deceased intervened in the role of peacemaker when the applicant drew a ratchet knife from his pocket and made as if to use it on DT. The applicant resisted the deceased and an unknown man went to the deceaseds assistance. All three fell to the ground where there was a struggle to take the knife from the applicant. During the struggle the deceased thumped the applicant two or three times.

A woman hit the deceased in the back and the deceased let go of the applicant, got up and turned aside to speak to the woman who had struck him. The applicant got up as if to walk away and then spun around and stabbed the deceased with the knife in the region of the right clavicle. The wound penetrated the subclavian vein and entered the lung. The deceased died of the resulting haemorrhage. Held: the incidents starting with the fight and ending with the stabbing of the deceased were so closely connected that they could properly be regarded as one entire incident and the jury should have been directed that they could take into consideration on the issue of provocation not only the provocative acts of the deceased but also those of DT, even though there was no evidence on which it could be said that the deceased was acting with DT during the fight between the applicant and DT. Black (1989) The defence submitted that the appellant had been provoked, but not by the deceased. It submitted that under (what became) sections 320, 321 and 325 of the Penal Code (1988) provocation by a third party could constitute provocation such as to reduce murder to manslaughter. Held: Provocation by a third party could constitute provocation capable of reducing a verdict of murder to one of manslaughter; although the law was not entirely clear on this point (and might require clarification from Parliament), as the trial had been conducted on that basis and as it was not certain in the particular circumstances that the issue of provocation had properly been left to the jury a verdict of manslaughter would be substituted for the verdict of murder. SELF-INDUCED PROVOCATION D has, by his own conduct, caused V to attack him. S. 3 (since any proper evidence of provocation may be left to the jury) entitles him to claim that he responded to being provoked. Edwards [1973] In the course of a struggle between the appellant and C in an hotel bedroom in Hong Kong, the appellant inflicted on C many knife wounds, which caused Cs death. The appellant, who also sustained several knife wounds in the struggle, was charged with murder. At his trial he pleaded self-defence but mainly contended for a verdict of manslaughter on the ground of provocation. He admitted that he had followed C to Hong Kong from Australia with the deliberate intention of blackmailing him and had gone to see him in his hotel bedroom for that purpose, but he claimed that when he there pressed C for payment of the sum that he was demanding, C swore at him, attacked him with a knife and inflicted several wounds and that he, the appellant, then wrested the knife from C and stabbed him in a fit of white hot passion. The prosecution alleged that the appellant had gone to Hong Kong with the deliberate intention of killing C and that his motive for so doing was financial in that he was in league with Cs wife, who would, it was claimed, receive a superannuation payment of some A$100,000 as a result of her husbands death.

Held: the trial judge was guilty of an error in law in withdrawing the defence of provocation from the jury for, although a blackmailer could not generally rely on the predictable results of his own blackmailing conduct as constituting provocation sufficient to reduce his killing of the victim from murder to manslaughter, if the hostile reaction by the person sought to be blackmailed went to extreme lengths it might constitute sufficient provocation, and, as C had, according to the appellant, gone to extreme lengths by violently attacking him, wounding him and putting his life in danger, there was some evidence of provocation fit for consideration by the jury. MISTAKE OF FACT The jury must consider the effect of provocation of a reasonable man, not a drunken man. Nevertheless, where a person, having taken drinks/drugs, makes a mistake of fact he is entitled to be treated as though the supposed facts were true. If owing to intoxication, D mistakenly believes V is about to attack him, the jury should take that into account. Letenock (1917) The D claimed mistakenly to believe that the V was about to attack him. The judge directed the jury that his drunkenness was irrelevant unless he was so drunk as to be incapable of knowing what he was doing. Held: The conviction should be quashed. Per Reading CJ. The only element of doubt in the case is whether there was anything which might have caused the Appellant, in his drunken condition, to believe that he was going to be struck. In other words, was there any intelligible basis for the defendants belief?

OGrady [1987] Held: where D pleads self-defence he cannot rely on a plea of mistake arising from intoxication in relation to crimes of specific intent (as in murder). Gladstone Williams [1987] Held: in self-defence, an honest mistaken belief is sufficient provided the force used is reasonable. Presumably, D should still be able to rely on the defence. Where D acts in self-defence arising from a drunken mistake, he has been grossly negligent and so should be guilty of manslaughter. That is also the proper verdict where provocation is successfully raised. S.173 St. Lucia Criminal Code a reasonable mistake [but not a drunken mistake] may give rise to the defence of provocation. PROVOCATION ONLY A DEFENCE TO MURDER

Cunningham [1959] Bruzas [1972] Held: Provocation which will reduce murder to manslaughter does not reduce attempted murder to attempted manslaughter. BURDEN OF PROOF Woolmington v D.P.P [1935] W was a 21yr old labourer. 3mths after his marriage to a 17yr old V, she left him and went to live with her mother. W stole a double-barrel shot-gun and cartridges from his employer, sawed off the barrel, throwing it in a brook, and then bicycled over to his mother-in-laws house where he shot and killed V. he was arrested and charged for murder of his wife. Held: The common law position is that the legal burden remains on the prosecution to prove on a murder charge that the killing was unprovoked. Culmer [1997] makes it clear that this principle underpins s.3. But Vasquez [1994] s.3 irrelevant to the burden of proof. SECTION 3 AND CODE PROVISIONS Bahamas (s.325) & Belize (s.118) have incorporated the s.3 type provision into their detailed Code provision on provocation. Extreme provocation is used and relates primarily to the situation where force is used against the accused. TWO exceptions: Act of adultery takes place in view of the accused 2. an act of bestiality is committed against the accuseds wife or child. (except for very limited circumstances, words unaccompanied by an act of violence would not constitute provocation). THE BURDEN OF PROOF RESTS ON THE ACCUSED. Vasquez [1994] Appellants killed their estranged mistresses in somewhat similar circumstances and were convicted of murder in Supreme Court of Belize. The question of provocation was raised and the trial judge directed that the onus was on the accused to prove extreme provocation on a balance of probabilities. Reference was made to Woolmington (i.e. the burden rests on the prosecution throughout). Held: if it appeared from the evidence that the accused acted under provocation then it was for the prosecution to negate such a suggestion if a conviction was to be obtained. Also, it will normally be for an accused to raise the matter of provocation and if he does not do so,

and if the circumstances of the case do not disclose the reasonable possibility of provocation, the trial judge will not be required to give a direction thereon. S 116 (a) of the code by placing the burden of proof on the accused was in conflict with s 6 (3) (a) of the constitution, and thus should be interpreted generously in the accused favour with regard to due process of law. Logan [1996] The issue here was whether words could constitute provocation in light of s 47 of the Belize Criminal Code. S 117 (4) outlined the circumstances which may amount to extreme provocation. Since the word may was used, the circumstances where provocation can be raised were not restricted. The introduction of s.3 added a 5th category i.e. words. Culmer [1997] Lord Steyn examined the general effect of the s.3 provision of the Criminal Law Code in relation to all the existing law provisions. The issue was whether the legal burden rested on the accused or the prosecution. Held: though the code provided an exhausted list of circumstances of extreme provocation, the introduction of the s.3 provision entailed that a reforming and free standing provision had been introduced into the Code. That provision was wholly incompatible with existing code provisions and given its reforming character, it overrode those provisions including the provision that the legal burden rested on the accused. Bull [1998] The accused was within 20 minutes of execution when the Privy Council delivered judgment to the extent of revoking the sentence as there had been a misdirection by the trial judge with respect to the burden of proving provocation as resting on the accused. TEST FOR A SUCCESSFUL DEFENCE OF PROVOCATION

Was D provoked to lose his self-control? (Subjective condition) If so, was the provocation sufficient to make a reasonable man react as the accused did? (Objective condition).

SUBJECTIVE CONDITION Duffy: sudden and temporary loss of self control rendering accused so subject to passion as to make him not master of his mind (cause him to retaliate). THIS HAS NOT BEEN CHANGED BY s.3. In leaving the matter to the jury, the judge should indicate what evidence might support the conclusion that D lost his self control (important where D doesnt raise the defence himself). Rossiter [1994] In the course of a domestic altercation the appellant inflicted on her husband two fatal knife wounds together with 4 serious wounds, 17 superficial wounds and defence injuries on his wrists and hands. Her account of the altercation to the police and in evidence was confused but it was

clear that she had been exposed to a degree of verbal abuse and physical violence from her husband on the day in question. She herself sustained injuries consistent to a limited extent with her account that the incident had been a ghastly accident or that she had for the most part been defending herself, except when she had struck the fatal blows. At no stage did she accept that she had deliberately inflicted injury on her husband thus inhibiting defence counsel from putting forward the defence of provocation. She was convicted of murder. Held Whenever there was material which was capable of amounting to the defence of provocation, however tenuous it might be, the issue had to be left to the jury. On the facts, although the appellant had never conceded that she had deliberately stabbed her husband and had never actually said that she had lost her self-control, it was possible to infer from the circumstances of the killing and the number of wounds inflicted that she had in fact lost her self-control and therefore the jury should have been given the opportunity to consider, as required by s 3 of the 1957 Act, whether the provocation had been sufficient to make a reasonable individual act as the appellant had. Dryden [1995] In 1988 the appellant built a bungalow on his land without planning permission from the local authority, having been advised by its principal planning officer, C, that he was unlikely to obtain consent. In 1989 the local authority served an enforcement notice on the appellant requiring him to remove the bungalow and subsequently obtained a demolition order. Aexcavator moved into position, whereupon the appellant went into his premises and returned armed with a revolver which he used to shoot C twice, killing him. The appellant then shot and injured others in an attempt to shoot D before shooting Cs body again. When he was asked to give his account of what had happened, the appellant said that he was aware of what he had done and expressed regret at not killing D. He was subsequently arrested and at his trial for offences including murder and attempted murder he raised defences of diminished responsibility and provocation and medical evidence was given as to his eccentric and obsessional personality traits, a depressive illness and paranoid thinking. Held: When determining whether a reasonable man might, in circumstances similar to the accused, have been provoked to lose his self-control and act as the accused did, the jury were entitled to consider those permanent characteristics or traits which served to distinguish the accused from the ordinary person in the community and were specifically relevant to the events relied on as constituting the provocation. On the facts, the appellants obsessiveness and his eccentric character were characteristics which ought to have been specifically left to the jury for their consideration; indeed it was in regard to the appellants obsession with the dispute over his property that the local authoritys conduct in bringing the excavator to the scene was the last straw in the build-up of stress on him. there was overwhelming evidence that the appellant was not on that occasion in a state where he had lost his self-control, since he had announced his violent intentions a considerable time before the event and had prepared himself for the occasion. It was therefore clear that the jury would have rejected the suggestion that the appellants deliberate action was something which someone with the self-control of a reasonable man would have done.

An abnormally cool person who did not lose his self control cannot rely on provocation even if the reasonable man would have lost his self-control. Nor can D rely on the fact that he was an exceptionally excitable or pugnacious person as the reason why he lost his self he control. Nor can he say that had he not been intoxicated he would have retained his self control. See McCarthy [1954]. D MUST HAVE LOST HIS SELF CONTROL Camplin [1978] D, aged 15, submitted to anal intercourse by V aged 50, after which V 'laughed at' D. D thereupon killed V by splitting his skull with a heavy pan. Held: Lord Diplock: the Homicide Act 1957 s 3 retains a dual test: 'the provocation must not only have caused the accused to lose his self-control but also be such as might cause a reasonable man to react to it as the accused did ... the reasonable man ... is a person having the power of selfcontrol to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused's characteristics as they [the jury] think would affect the gravity of the provocation to him.' Cocker [1989] D's wife suffered from an incurable disease and was severely incapacitated. D suffocated her with a pillow and was charged with murder. He argued that he had been provoked by her repeated pleas to end her life. Held: this could not amount to provocation because there had been no loss of self-control. Thornton [1992] D was battered by her husband throughout their first year of marriage. One night her husband was intoxicated and called D a whore; D then obtained a carving knife for protection. The husband threatened to kill D in her sleep and sarcastically taunted D to kill him first. D stabbed him once in the stomach, causing his death. D initially told the police that she wanted to kill him. Held: To establish provocation, there must be a 'sudden and temporary loss of self-control' (Duffy (1949) CA). In cases involving a history of domestic violence, 'the question for the jury is whether at the moment the fatal blow was struck the accused had been deprived for that moment of the self-control which previously he or she had been able to exercise'. She was guilty of murder. Ahluwalia [1992] D, subjected to 10 years of spousal violence and degradation, threw petrol in her husband's bedroom and set it alight, causing his death. Held: Lord Taylor CJ: Only Parliament, not the courts, could permit a provocation defence in circumstances of 'a "slow-burn" reaction [to long-term spousal violence] rather than by an immediate loss of control'. '[T]he subjective element in the defence of provocation would not as a matter of law be negatived simply because of the delayed reaction in such cases, provided that there was at

the time of the killing a 'sudden and temporary loss of self-control' caused by the alleged provocation. However, the longer the delay and the stronger the evidence of deliberation on the part of the defendant, the more likely it will be that the prosecution will negative provocation.' No evidence was adduced at trial that D suffered from a post-traumatic stress disorder or 'Battered Woman Syndrome', so as to effect the characteristics relevant to the reasonableness of D's actions under the second part of the provocation test.

Note The Court of Appeal admitted evidence at the appeal level, quashing the murder condition on the basis of D's depressive condition. At re-trial her plea of manslaughter by defence of diminished responsibility was accepted. D was not guilty of murder; a retrial was ordered. The object is to distinguish a mans acts by design or revenge. The desire for revenge means that a person has had time to think, to reflect; and if there is time for reflection there is opportunity for passion to cook and for reason to regain domination over the mind. Duffy [1949] D killed her husband after mistreatment. She tried to remove their child from the home and when her husband was asleep killed him with a hatchet and a hammer. Held: At trial Devlin J used the following words which the Court thought might well stand as a classic direction given to a jury: "Provocation is some act, or series of acts, done by the dead man to the accused which would cause in any reasonable person, and actually causes in the accused, a sudden and temporary loss of self-control, rendering the accused so subject to passion as to make him or her for the moment not master of his mind. D was held to be Guilty. Richens [1993] D, a 17 year old student at Dover College killed a fellow student whom he thought had raped his girlfriend two weeks earlier. He and the girlfriend buried the body. Held: The provocative conduct of the victim must lead to a sudden and temporary loss of self-control which resulted in the defendant being unable to restrain himself from doing what he did, but not so far as not knowing what he was doing. Here, D was overcome by emotion so that it was very difficult to exercise restraint. Where D told lies, or his conduct was evasive or discreditable they could treat the lies as tending to prove guilt, provided there was not some possible explanation for the lies. D was guilty of manslaughter. AG of Jersey v Holley [2005] D killed his girlfriend with an axe. He was an alcoholic (as was she). She told him she had just had sex with another man. He picked up the axe, intending to leave the flat and chop wood, when the deceased said, "You haven't got the guts" he hit her with the axe seven or 8 times. He pleaded provocation. Held: Ds alcoholism should not have been taken into account. Subjective element:

The jury are required to assess the gravity of the provocation by reference to the defendant's individual characteristics in deciding if he lost self-control. Objective element: The jury are required to apply a uniform, objective standard of the degree of self-control to be expected of an ordinary person of the defendant's sex and age when judging whether his loss of self-control was sufficient to satisfy the defence. Not guilty of murder for other reasons. Comment: Morgan Smith cannot now be considered correct on this point. Whilst the advice of the Privy Council is said to be only persuasive this was a judgment of nine Law Lords sitting as the Privy Council. It is extremely rare that so many judges sit unless the case is of massive importance. This ruling can be seen as binding, until the HOL (or Parliament) decides otherwise. COOLING TIME Evidence of an interval between the provocative conduct and Ds reaction to it is a matter which the jury might take into account. The passage of time may suggest that D regained control or that the subsequent attack was planned or based on motives of revenge or punishment. The presence of a cooling off period is of evidential significance. It is not inevitably fatal to a successful defence. Ahluwalia: the longer the delay and the stronger the evidence of deliberation the more likely it will be that the prosecution will negative provocation. Ibrams (1982) DD had been repeatedly bullied and otherwise provoked by V within a week before they attacked V in his sleep, to avoid further bullying. V died as a result of the attack that was intended to break V's arms and legs. Held: Lawton LJ: 'Nothing happened on the night of the killing, which caused [I] to lose his selfcontrol. There having been a plan to kill [V], his evidence that when he saw him all the past came to his mind does not ... provide any evidence of loss of self-control ... Indeed, circumstances which induce a desire for revenge are inconsistent with provocation, since the conscious formulation of a desire for revenge means that a person has had time to think, to reflect, and that would negative a sudden temporary loss of self-control, which is the essence of provocation [Duffy (1949) CA].' D was thus guilty of murder. THE PHRASE SUDDEN AND TEMPORARY Sudden killing that was not premeditated. Temporary-the loss of self-control is not part of the character of D. D does not suffer repeated losses of control. The killing is a one off. THE WORD PASSION

A man (or woman) who has gone beserk, who has exploded or had a brainstorm; i.e. Per Devlin J in Lee Chun Cheun [1963] a transport of passion and the heat of passion. See Rossiter [1994] pg 7

Arguably, however, this concept is too narrow. A D who has acted in a frenzy may still plead provocation. There are other uses of the word passion. i.e. Passion of the Christ his suffering was so acute that reason was displaced and his control, previously exercised, was lost. Passion = loss of self-control. Wellington [1993] The trial judge had concluded that there was no evidence of loss of self control and as such refused to refer the issue of provocation to the jury. The crown accepted that if there had been any evidence of the loss of self-control, then the judge was under a duty to leave the defence to the jury. However, no such foundation had been laid and this interpretation was supported by the Court of Appeal. Held: the requirement to establish a proper foundation is not a particularly arduous one to fulfil providing that there is some evidence of specific provoking conduct. In this case, the Appellant had not claimed that he had lost self control, although he maintained that he had been acting instinctively when trying to fend off the Victim, while he had a knife in his hand. The evidence of a pathologist might prove important, if for e.g. the injuries to the V showed a frenzied or savaged attack had taken place, which might be consistent with the attacker having lost self control. CUMULATIVE PROVOCATION The incident which finally caused D to kill may be relatively trifling when set against his entire history and circumstances. When taken with what has gone before, it may be the last straw in a cumulative series of incidents which, over a period, broke down Ds self control. E.g. a wife is subject to years of verbal and physical abuse. One day she snaps and kills; a husband is nagged for years by a wife who habitually plays around. One day he snaps and kills. Thornton [1992] Per Beldam L.J: In every such case the question to the jury is whether at the moment the fatal blow was struck the accused had been deprived for the moment of the self-control which previously he or she had been able to exercise. Each case has to be considered against the background of its particular facts. Morhall [1995] D, after a lengthy period of glue sniffing, stabbed his friend seven times in the course of a fight, causing his death. Held: The reasonable man test in s 3 Homicide Act 1957 referred to a hypothetical person having the power of self-control to be expected of an ordinary person of the age and sex of D and showing any other of D's characteristics as the jury think relevant to the gravity of provocation.

The jury could be directed to take into account the entire factual situation and the fact that D's characteristics may be discreditable did not exclude it from consideration. D's glue sniffing was therefore taken into account as a characteristic of a reasonable man. D was not guilty of murder. Luc Thiet Thuan [1966] D robbed a former girlfriend and then stabbed her to death to avert being identified. D claimed she taunted him about his sexual inadequacy. D was found to have brain damage following a fall and had several times responded irritably in response to only minor provocation. Held: The test of provocation was an objective test, namely whether the provocation was enough to make a reasonable man do as the defendant did, and individual peculiarities of the defendant affecting his power of self-control should not, as such, be taken into account for the purposes of that test. It is not necessary for the provocation to be directed at the particular characteristic of the accused, though it usually will. In addition, a relatively unprovocative act but one that was the last of a series of acts is sufficient. D was guilty of manslaughter. Per Lord Goff: it may be open to a defendant to establish provocation in circumstances in which the act of the deceased, though relatively unprovocative if taken in isolation, was the last of a series of acts which finally provoked the loss of self-control by the defendant and so precipitated his extreme reaction which lead to the death of the deceased. _____________________________________________ See also: Thornton [1996] & Dryden [1975] - page 8. _____________________________________________ But in this situation evidence of a cooling time permitting reflection and suggesting a premediated killing may become significant. Dryden [1995] Held: D guilty of murder where he announced his violent intentions a considerable time before the killing and had prepared himself for the occasion (where his bungalow was being demolished). See also: Devlin J in Duff page 9.

BATTERED SPOUSES Either spouse may have been subject to provocative conduct for years. Problems arise where an apparent trivial last straw causes a spouse to snap and kill in an apparently detached manner.

Ahluwalia [1992] D had been threatened by her husband numerous times, beaten and abused. He even had an affair and taunted her about it. He at one time branded her with an iron on her face. As a result (slow burnt) she threw petrol and burnt him to death. Though she failed to successfully raise the defence of provocation, the evidence revealed that she was suffering from a recognisable depressive illness hence she was convicted of manslaughter. Pg 8-9. Also See Thornton [1992] Page 9

Questions of special relevance: the nature of loss of self-control concept of passion propriety of focussing attention on cumulative provocation Significance of cooling off time.

PIVOTAL QUESTIONS Cant a battered spouse walk out of a marriage? Is the law phallo-centric/male oriented? i.e. the requirement for sudden loss of self control. Is this appropriate to deal with slow burn where a woman deals with abuse for a number of years and then finally snaps in the face of what appears to be a trivial incident?

OBJECTIVE QUESTION REASONABLE MAN It is not enough that D lost his self control. The question is whether, in the jurys opinion, a reasonable man would, in like circumstances, have lost his self-control and reacted as the accused did. RATIONALE 19th Century phenomenon (Welsh (1869)) reasonable man firmly rooted in principle in Lesbini [1914]- whether the accused exercised a reasonable amount of self-restraint. Ds failure to exercise self-control is set against the objective uniform standard to be expected of ordinary persons in order to reduce the incidence of fatal violence by persons seeking to rely on their exceptional pugnacity, excitability or intoxication as an excuse for loss of self-control. See Morhall [1995] glue sniffing Page 10. Luc Thiet Thuan [1996] taunted about sexual incompetency. Page 10. WHO IS THE REASONABLE MAN

Camplin [1978] Per Lord Diplock: Reasonable man= the person having the power of self-control to be expected of an ordinary person. Is the ordinary person..? .deformed.eccentrichangup..riddled with a sense of sin.. cannabis smoker..sexually inadequate.gayvirgins.blue movies..a predisposition for older menyoung girls.immaturelow self esteem..bottom smacking..growing the nails...being a slut.detesting dogs..adoring anacondas.attitudes..persecution.. envy...narrowness of spirit..hooked on pretty young girls..resentful to one or both parents.....complacent????

At one time, the persona of the reasonable man was a matter for the trial judge to determine. He was thus entitled to withdraw the question of provocation from the jury on the ground that there was no evidence that reasonable man would have acted in the way that the defendant did. See Mancini [1942]. This rule was abolished by s.3. The jury must now determine, as a matter of opinion, what effect the provocation would have on a reasonable man. SOME MODELS OF THE REASONABLE MAN THE JELLY MAN: The reasonable man as a featureless amoeba.

Until 1978, the pre-supposition was that the reasonable man had no discernible characteristics other than he was not especially pugnacious or sensitive and not intoxicated. IT DEFINED HIM BY REFERENCE TO QUALITIES HE DID NOT HAVE INSTEAD OF A BREATHING PERSONALITY WITH PHYSICAL AND MENTAL ATTRIBUTES. The shape of the law prior to 1957 entailed that the R.M would not have been provoked by an event other than a violent assault, the discovery of the spouse in adultery or the discovery of an act of sodomy against his spouse or child. Thus, the R.M was not provoked by words even though those were directed at a particular characteristic which D possessed. THE REASONABLE MAN WAS NOT INTOXICATED McCarthy [1954] Lord Goddard: if a man who is provoked retaliates with a blow from his fist on another grown man a jury may well consider and probably would, that there was nothing excessive in the retaliation even though the blow might cause the man to fall and fracture his skull, for the provocation might well merit a blow of the fists. It would be another thing. If the person provoked not only struck the man, but continued to rain blows upon him or to beat his head on the ground, as happened in the present case.the reasonable man in these circumstances was not intoxicated.

THE REASONABLE MAN WAS NOT BY NATURE UNUSUALLY EXCITABLE OR PUGNACIOUS Mancini [1942] M was the Manager of an enterprise, DI was a member of his club and between 3-4 am when he and a number of other members were on the premises, he received a fatal wound in the left shoulder. A main artery was severed. The blade was 5 inches long thus causing injuries. The Court considered whether a sufficient interval had elapsed since the provocation to allow a reasonable man time to cool off. In addition, consideration had to be given to the instrument with which the homicide was effected, for to retort in the heat of passion induced by provocation by a simple blow is very different from making use of a deadly instrument like a concealed dagger. The mode of resentment must be a reasonable relationship to the provocation, if the offence is to be reduced to manslaughter. THE REASONABLE MAN WAS NOT MENTALLY DEFECTIEV OR UNBALANCED Lesbini [1914] D shot Alice Storey with a revolver after she had made what he thought was a racist comment. He chased her before shooting her with a pistol from a shooting gallery where she was an attendant. Held: A reasonable man would not have responded so strongly to comparatively little provocation. D was Guilty of murder. Lord Reading CJ: "The Court of Criminal Appeal is not minded in any degree to weaken the state of the law which makes a man who is not insane responsible for the ordinary consequences of his action" RM WAS NOT SEVEN MONTHS PREGNANT Smith (1916) REASONABLE MAN WAS NOT SEXUALLY IMPOTENT Bedder [1954] D attempted sexual intercourse with a prostitute, but failed due to his impotence. She taunted D, punched and slapped D, and kicked D in the groin, whereupon D stabbed her twice, causing her death. Held: The jury should consider the effects of the taunts and violence upon D without regard to his sexual impotence. Lord Simonds LC: 'It would be plainly illogical not to recognise an unusually excitable or pugnacious temperament in the accused as a matter to be taken into account but yet to recognise for that purpose some unusual physical characteristic, be it impotence or another.' D was guilty of murder. This latter proposition was overruled by the House of Lords in DPP v Camplin, as modified by the Homicide Act 1957 REASONABLE MAN WAS NOT A DWARF Bedder [1954] discussed in.

Where D alleged that V had directed his provoking words or conduct at a characteristic which he, D, possessed, the jury was required to assess the response of the Reasonable man who did not share this characteristic and who, ex hypothesi, would not have been provoked by such a reference. This model was laid to rest in Camplin [1978] The reasonable person has the power of self control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused characteristics as they [the jury] think would affect the gravity of the provocation to him.

2. HUMANOID MAN: the reasonable man as Quasimodo Camplin [1978] Per Lord Diplock: In directing the jury, the trial judge should state what the question is, using the very terms of s.3. He should then explain to [the jury] that the reasonable man.is a person having the power of self control to be expected of an ordinary person of the sex and age of the accused, but in other respects sharing such of the accused characteristics as they [the jury] think would affect the gravity of the provocation to him, and that the question is not merely whether such a person would in like circumstances be provoked to lose his self-control but would react to the provocation as the accused did. The reasonable man took shape and form. He had sexuality. He might have a certain age. He had those characteristics as would affect the gravity of the provocation to him. Quaere: what are relevant characteristics? Did the provocative conduct have to refer to the characteristic (s)? and what about if it is asserted that such characteristics formed part of Ds mental makeup? Newell (1980) D, a chronic alcoholic, battered his friend V to death after V made insulting remarks about D's former cohabited Held: In assessing the reasonableness of D's actions, by reference to D's characteristics as in DPP v Camplin, the jury may consider immutable characteristics of the accused going to the gravity of the provocation (e.g. race), but not characteristics going to the level of selfcontrol, such as alcoholism, grief, mental deficiency or weak-mindedness. 'In short, there must be some direct connection between the provocative words or conduct and the characteristic sought to be invoked as warranting some departure from the ordinary man test' (North J in McGregor (1962)). D was guilty of murder. A relevant characteristic was one which made D different from the ordinary run of mankind. (but isnt the reasonable man an ordinary person?). It was a physical/mental quality/an indeterminate

but permanent one which constitutes part of Ds character/personality. E.g. his colour, race/creed. A temporary/transitory state of mind e.g. intoxication/a mood, was not a relevant characteristic. There must be some direct connection between the provocative words or conduct and the characteristic sought to be invoked as warranting a departure from the Reasonable man test. (isnt the reasonable test to be appliedor departed from?). Contra: Luc Thiet Thuan [1996] provocation need not be directed at the relevant characteristic. Morhall [1995]- glue sniffing =characteristic Roberts [1990] deafness = characteristic Raven [1982] age a characteristic A man who had a physical age of 22 years but a mental age of only 9 years old felt provoked by homosexual advances and killed his perceived attacker. Held: as his mental deficiency was not in dispute and since a child of 9 years would not have been criminally responsible and the fact that his mental responsibility for his acts was substantially impaired, rendered manslaughter the only realistic verdict. The criminal law requires the conduct to be voluntary; if something interferes with the capacity of the individual to chose to break the law, this should be reflected by an excuse or exculpation. The law should balance the need to be fair to the individual wrong doer, but equally offer some protection to society from a person who may not have complete control over their behaviour. Newell .+. Raven:- a relevant characteristic might be Ds personality and mental state. 3. ADAM MAN: Reasonable man with mental problems Persons suffering from mental abnormality which impaired their powers of self control might have such abnormality accounted a relevant characteristic. The reasonable man is thus an unreasonable man.

Ahluwalia [1992] post traumatic stress disorder / battered woman syndrome = a relevant characteristic. Thornton (No 2) [1996] battered woman syndrome = relevant characteristic. Dryden [1995] obsessions and eccentricities = relevant characteristics. Humpreys [1995] abnormal immaturity and attention seeking by wrist slashing = relevant characteristics.

Under this test, the person can think/feel and therefore, reasonable man becomes accused. The jury is thus being asked to say whether they would have responded as D did had they been in his shoes, had they been him. Camplin [1978] Per Lord Morris: Reasonable man = someone in the accused situation. (Quaere: does this mean the R.M has been abandoned such that the test is not entirely subjective?)

BACK TO THE FUTURE: resurrection of the humanoid man Luc Thiet Thuan [1996] The court drew a distinction between individual peculiarities which bear on the gravity of the provocation and those bearing on Ds general level of self control. The first may be taken into account in assessing the response of the reasonable man, but not the second. The distinction underpinned Lord Diplocks formula in Camplin when he said that the reasonable man shared such of the accused characteristics as they [the jury] think would affect the gravity of the provocation to him. Mental abnormality which reduced Ds power of self control below that of the ordinary person was not a relevant characteristic. The reasonable man is not an unreasonable man. He is one who has the ordinary power of self-control but in other respects sharing such of the Ds characteristics He is someone who, in general sense, has reduced powers of self control. The defence of diminished responsibility applies for such persons. The decisions in Newell, Ahluwalia, Dryden and Humpreys were of doubtful authority; likewise Thornton (no 2) [1996]. Position would have been different if it had been Ds brain damage which was the subject of the taunts in Luc Thiet Thuan. The brain damage would clearly have been a relevant characteristic. Court was giving substance to the old principle that the reasonable man cannot be endowed with Ds low level of self control arising from exceptional pugnacity or sensitivity. How does this view affect the perception that the law is phallocentric? Wasnt it the age of the boy in Camplin which made him sensitive to taunts? If the law is concerned with compassion for human infirmity then why does defence not apply to those with low self esteem (or some other endemic) for which they cant be blamed? Reference to Ds mental state in general terms incompatible with reasoning in Camplin? Extracting Ds general mental attributes only thereby reducing him [reasonable man] to humanoid, is it right? What is the significance of the relationship between characteristics relating to provocative conduct and those relating to him losing self control? [his level of self control is reduced by provocative conduct in both cases].

WHAT SANG PLATOS GHOST? The resurrection of ADAM MAN. Smith [1998] C.A. held: no distinction could properly be drawn between relevance of attributes in relation to the gravity of the provocation and the reasonable mans reaction to it. Luc Thiet not followed but Ahluwalia and Dryden were.

House of Lords: in accordance with s.3 it is for the jury to determine whether the objective element has been satisfied. It would be a misdirection for judge to direct jury that as a matter of law they should ignore any feature /characteristic of accused in determining whether that element has been satisfied. Trial judge is not required to refer explicitly to the reasonable man. Key question: whether the jury considers that the circumstances are such as to make the accuseds loss of self control sufficiently excusable to reduce the gravity oft eh offence to manslaughter.

Sufficient:- the jury should broadly apply what they consider to be appropriate standards of behaviour, making allowance for human nature and the power of emotions, but not allowing someone to rely on his own violent dispositions which are merely defects in his character not an excuse. Appropriate standard:-the general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up. BUT it must be emphasized to jury that this principle is a principle not a right rule, a principle which might have to yield to a more important principle.need to do justice.

The jury might think that there is some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably expect of him and which it would be unjust not to take into account. They are at liberty to give effect to this view. The jury should not have been directed as a matter of law that the effect of Ss disposition on his power of self control was irrelevant. Rather, they should have been told that it was for them to decide whether to take it into account when considering whether Ss behaviour had measured up to the standard of self-control which ought reasonably to have been expected of him. Followed in: Weller [2004] but rejected in:

AG for Jersey v Holley [2005] D killed his girlfriend with an axe. He was an alcoholic (as was she). She told him she had just had sex with another man. He picked up the axe, intending to leave the flat and chop wood, when the deceased said, "You haven't got the guts" he hit her with the axe seven or 8 times. He pleaded provocation. Held: Ds alcoholism should not have been taken into account. Subjective element: The jury are required to assess the gravity of the provocation by reference to the defendant's individual characteristics in deciding if he lost self-control. Objective element: The jury are required to apply a uniform, objective standard of the degree of self-control to be expected of an ordinary person of the defendant's sex and age when judging whether his

loss of self-control was sufficient to satisfy the defence. Not guilty of murder for other reasons. Comment: Morgan Smith cannot now be considered correct on this point. Whilst the advice of the Privy Council is said to be only persuasive this was a judgment of nine Law Lords sitting as the Privy Council. It is extremely rare that so many judges sit unless the case is of massive importance. This ruling can be seen as binding, until the HOL (or Parliament) decides otherwise. ____________________________________________ *** D to be judge by the standard of an ordinary person having ordinary self control. The standard was constant, objective standard. The jury should first assess the gravity of the provocation by reference to Ds situation (objective test). *** Evaluate Ds conduct by reference to the external standard of a person having and exercising ordinary power of self control. [an alternative, flexible view viz, Smith.was to depart from s.3. Section 3 did not leave jury free to apply whatever standard it felt appropriate in the circumstances. Lord Carswell dissenting in developing the criminal law the courts should strive to meet three important criteria: its principles should fit a logical pattern; it should be capable of explanation to a jury; above all, it should achieve justice. James, Karimi [2006] The C.A. followed Holley rather than Smith on the basis that 9 out of 12 Lords of Appeal in ordinary in Holley had purportedly clarified definitively English law on provocation, so that were such a case to come before the H.L it would now certainly follow Holley and not Smith.

Van Dongen [2005] D appealed on the ground that the trial judge had not left provocation to the jury. Held: it would be assumed that Holley would be taken as binding in England and Wales. Here the jury would inevitably have been certain that no reasonable man would have reacted to the provocation as D did. PROPORTIONALITY s.3, the reasonable man must have reacted as the accused did. Mancini [1942] Held: the mode of resentment must, as a matter of law, bear a reasonable relationship to the provocation. The reasonable man would not have answered an attack with fists with a deadly weapon. s.3 makes it clear that there is no such rule. Proportionality is a matter of evidence to be considered by the jury to determine whether the reasonable man would have reacted as D did.

See Brown [1972] Scott [1971] is often cited as a case to suggest that proportionality is a matter of law. It is not for the judge to decide whether Ds mode of resentment was how the reasonable man would have reacted; and it is in this sense that the Court in Camplin held that Mancini was no longer good law. Per Satrohan Singh JA in Fox (St.Kitts and Nevis) [1998]. Proportionality in law consists of 3 elements: act of provocation; loss of self control (actual and reasonable) retaliation proportional to the provocation the defence cannot require the issue to be left to the jury unless there has been produced a credible narrative of events suggesting the presence of these 3 elements this was said to be based on Lord Morris speech in Lee Chun Chuen [1963].

DIMINISHED RESPONSIBILITY The defence of diminished responsibility was first introduced in Barbados by the Offences Against the Person Act 1994-18. The essence of the defence is encapsulated by Section 4 which (although an exact replica of section 2 (1) of the U.K Homicide Act 1957) highlights the circumstances in which the defence applies. Subsection (1) states that where a person kills or is a party to the killing of another, he shall not be convicted of murder if he was suffering from such abnormality of mind (whether arising from a condition of arrested or retarded development of mind or any inherent causes or induced by disease or injury) as substantially impaired his mental responsibility for his acts or omissions in doing or being a part of the killing. Defence was introduced also in: Barbados s 4 O.A.P Act, 1994 Jamaica s 5 O.A.P Act, Cap. 268 T & T s 4 O.A.P Act, Ch. 11:18 S.V.G s 160, Criminal Code, Cap 124. Belize s 115, Criminal Code, Cap 84

 Montserrat s 150, Penal Code, No 12 of 1983 BUT does not apply under St. Lucia / Dominica Criminal Codes. The defence was initially introduced so as to mitigate the rigours of the rules in relation to insanity where a defendant, as the result of the stated causes, suffers from a condition of irresistible impulse. The legal burden of proving Diminished responsibility is cast upon D. D is incapable of arguing, as in the case of provocation, that if there is any evidence of Diminished Responsibility the trial judge must leave the defence to the jury. In these circumstances, the defendant must raise the necessary evidence. Campbell (1986) The defendant was charged with and convicted of murder. The question which arose was whether the trial judge should have directed the jury as to the possible existence of diminished responsibility, even though this had not been raised by the defence. Held: s 2 (2) of the Homicide Act 1957 not only placed the burden of proving diminished responsibility on the defence, but it is also left to the defence the decision whether or not to raise it. In effect, it was suggested that if there is prima facie evidence of Diminished Responsibility, the judge can only leave the defence to the jury if the Defendant consents. The burden is discharged by evidence on the balance of probabilities. Dunbar [1958] The Defendant killed an old lady after breaking into her house to steal. Held: the burden of proof was on the accused in the defence of diminished responsibility but it was not as heavy as the burden of proof on the prosecution and was only incurred the burden of showing a preponderance of probability. In the circumstances of the case, the defendant was guilty of manslaughter and not murder. The trial judge has a discretion as to the appropriate sentence. He may in effect choose an absolute discharge, imprisonment for life, a hospital order or its equivalent. To plead the defence successfully, the defendant must show: He was suffering from an abnormality of the mind The abnormality arose from one of the stated causes At the time of the killing his mental responsibility was substantially impaired. Abnormality of the mind Byrne [1960] Held: the expression abnormality of mind entails a state of mind so different from that of ordinary human beings that a Reasonable man would term it abnormal. It is an expression wide enough to cover the minds activities in all its aspects, not merely the perception of physical acts and matters and the ability to form a rational judgement whether an act

is right or wrong, but also the ability to exercise will power to control physical acts in accordance with rational judgement. Followed in Rose [1961] The defendant, a prisoner serving sentence, stabbed to death an overseer who refused to give him the key to a gate of the prison. The trial judge referred to the case as a border-line case of sanity or insanity, according to the MNaghten rules. Held: this direction in terms of the MNaghten rules, was wrong. The expression of an abnormality of the mind according to Byrne (not that of the MNaghten rules) must be used in the broadest and most popular sense. Hence, the defendant was acquitted.

The Court has categorised the concept of battered woman syndrome under the expression of abnormality of the mind. Ahluwalia [1992] D, subjected to 10 years of spousal violence and degradation, threw petrol in her husband's bedroom and set it alight, causing his death. Held: Per Lord Taylor CJ: no evidence was adduced at trial that the Defendant suffered from a post-traumatic stress disorder or 'Battered Woman Syndrome'. However, the Court of Appeal admitted evidence, quashing the murder condition on the basis of D's depressive condition. At re-trial her plea of manslaughter by defence of diminished responsibility was accepted. Severely limited self control may constitute a sufficient abnormality. However, the Court has alluded to the fact that there exists a distinction between the man who could not resist his impulse and he who did not resist it remains, qualified only by the concept of substantial impairment. Gomez (1962) It is unnecessary to show that the abnormality existed from birth. Stated causes of the mental condition The alleged abnormality must arise from arrested or retarded development, disease or injury. Abnormalities in the context of lust, jealousy, hate or intoxication without more are irrelevant. Fenton [1975] D consumed a large quantity of drink. He drew a revolver and killed a police officer and left the scene driving the police car. He went to a club where he shot and killed three more people. Held: one of 4 ingredients of D's abnormality of mind was alcohol with a resulting state of disinhibition and possible confusion, in the absence of any one of them the killings would probably never have taken place.

It was stated that even if the effect of alcohol was ignored, the effect of the remaining factors was sufficient to cause a substantial impairment of mental responsibility. Alcoholism may give rise to abnormality in the context of disease or injury in two cases: 1. it has caused damage to the brain resulting in gross impairment of judgement or emotional responses and 2. the craving for alcohol is so severe that D is unable to resist the impulse to drink the first drink in a bout of drinking; if the first drink of the day is voluntary then if, thereafter, the defendant could not resist carrying on drinking then the mental abnormality would not be due to disease or injury. Tandy [1989] D, an alcoholic had drunk nearly a bottle of vodka when she strangled her 11 yr old daughter although she normally drank Vermouth or Barley wine. Held: for a craving for drink to produce an abnormality of mind induced by the disease of alcoholism, there had to be grossly impaired judgement and emotional responses or the craving had to be such as to render the first drink of alcohol of the day involuntary. But, if the accused had simply not resisted an impulse to drink she could not rely on the defence of diminished responsibility, and if D took the first drink of the day voluntarily, the whole of the drinking on that day was voluntary, and diminished responsibility was not available to her. Watkins LJ stated that 'If the alcoholism has reached the level at which her brain had been injured by the repeated insult from intoxicants so that there was gross impairment of her judgment and emotional responses, then the defence of diminished responsibility was available to her ... if her drinking was involuntary, then her abnormality of the mind at the time of the act of strangulation was induced by her condition of alcoholism.' In the circumstances of the case, D was held to be Guilty of murder. Egan [1992] D who had a mentality bordering on the subnormal, entered the home of an elderly widow after a night of heavy drinking and attacked and killed her, probably with intent to rob her. It was clear that Egan was suffering from an abnormality of mind which arose from one of the stated causes (whether arising from a condition of arrested or retarded development of mind or inherent causes or induced by disease or injury). The difficulty was whether this abnormality had substantially impaired his responsibility for his acts or whether it was the effect of the abnormality in conjunction with the alcohol he had consumed that had done so. Held: a court should follow the guidance of Professor JC Smith in his commentary on R v Gittens [1984] and ask: (i) Can the defendant prove that had he not taken the alcohol he would nevertheless have still killed; and (ii) Can he prove that he was suffering from diminished responsibility at the time so as substantially to impair his responsibility for the killing. Voluntary consumption of alcohol must be ignored.

In other words, if the jury believe that but for the voluntary consumption of alcohol he would not have killed, the defence is lost. Suffice to say, where the defendant is suffering from alcoholism, the position may be different. This may constitute an abnormality of mind induced by injury within s 2, but the voluntary consumption of large quantities of alcohol will not. To this effect, the defendant was Guilty of murder. However, the dicta in Egan was disapproved in R v Dietschmann (2003) D killed a man in a savage attack whilst he was very drunk. He was also suffered from a mental abnormality, namely an adjustment disorder which was a depressed grief reaction following the death of his aunt, Sarah, with whom he had had a close emotional and physical relationship and whom he (wrongly) believed had committed suicide because of her drug problems. Held: the word substantial should be approached in a broad commonsense way or that substantial means more than some trivial degree of impairment which does not make any appreciable difference to a persons ability to control himself, but less than total impairment. It was stated that to benefit from the finding of diminished responsibility, D does not have to show he would have killed had he been sober. The Court suggested that being intoxicated does not entitle D to the benefit of the defence of diminished responsibility, the only factor which the law recognises as capable of diminishing his mental responsibility is the mental abnormality described by the expert witnesses. Drink is only capable of amounting to Diminished Responsibility if it either causes damage to the brain or produces an irresistible craving so that consumption is involuntary (e.g. alcohol dependence syndrome). However, although drink cannot be taken into account as something which contributed to his mental abnormality, it can contribute to his behaviour. It was stated that "...if D satisfied you that, [ignoring the drink], his mental abnormality substantially impaired his mental responsibility for his fatal acts, you may find him guilty of manslaughter. If not, the defence of diminished responsibility is not available to him." This case also reversed the test in Egan: If D suffers from DR and when sober would not kill yet when drunk kills; can he still use DR, answer, Yes. In Egan the answer would have been No. Wood [2008] [alcohol dependency syndrome] it was said that it is wrong to say that for the defence to succeed every drink on the day of the killing must be involuntary for alcohol dependence syndrome to be taken into account as an abnormality induced by disease or injury.

WHETHER HE SUFFERED FROM SUBSTANTIAL IMPAIRMENT AND MENTAL RESPONSIBILITY

The mental responsibility for his acts refers to a consideration of the extent to which Ds mind is answerable for his physical acts and this must include a consideration of the extent of his ability to exercise will power to control physical acts. This was the position which was taken in Byrne, where it was stated that substantial impairment involves in many cases a mental state which, in popular language, a jury would regard as amounting to partial insanity or as being on the borderline of insanity. Suffice to say, it would not be appropriate to direct a jury that Diminished Responsibility is the equivalent to partial insanity or that it is on the borderline of insanity where the abnormality does not relate to a recognised kind of medical insanity, e.g. the case of severe depression. Seers (1984) D stabbed his estranged wife and claimed diminished responsibility on grounds of chronic reactive depression. The trial judge directed that for the defence to be successful Seers had to be bordering on the insane. Held: the judges direction was wrong. The required abnormality of mind can cover severe shock or depression especially in cases of mercy killings and pre-menstrual syndrome. The test of borderline or partial insanity had been appropriate in the case of R v Byrne, therefore, D was Guilty of manslaughter. Lloyd [1967] Held: Ds inability to resist his impulse need not be total but must be something more than minimal or trivial and that the word substantial in the context of substantial impairment refers to a state between these two extremes. FUNCTION OF JUDGE AND JURY A plea of guilty of manslaughter on the ground of diminished responsibility should not be accepted since the defence should be left to the jury and the legal burden of proving it lies on the accused. Cox [1968] D was accused of murdering his wife; there was overwhelming evidence of diminished responsibility and after a full trial the judge directed the jury accordingly. On D's appeal against his sentence of life imprisonment (which was varied to a hospital order) Winn LJ said obiter that in cases where the medical evidence plainly points to diminished responsibility, it is perfectly proper for the prosecution to accept a plea to manslaughter on that basis and avoid the trouble and expense of a trial for murder. Terry [1961] In summing up, the judge must give a proper explanation of the terms contained in the statutory definition to the jury. But at the end of the day Dubar [1958]

Whether D was suffering from Diminished responsibility is a jury question. Although medical evidence is important, it is not conclusive. Whether Ds abnormality was sufficiently substantial, being itself a matter of degree, is properly a jury question. Walton [1978] D was driving with his girlfriend, who thought he was 'acting funny', when he stopped the car. After she flagged down a car for assistance D shot and killed a passenger in that car. Held: per Lord Keith- 'upon an issue of diminished responsibility the jury are ... bound to consider not only the medical evidence but also the evidence upon the whole facts and circumstances of the case. These include the nature of the killing, the conduct of the accused before, at the time of and after it and any history of mental abnormality.' The Privy Council refused to interfere with the verdict of murder, even though there was medical evidence from the defence supporting diminished responsibility and no contradictory medical evidence from the prosecution. The jury were entitled to consider the 'quantity and weight' of the medical evidence and 'to consider not only the medical evidence but the evidence on the whole facts and circumstances of the case', and to conclude that 'the defence on a balance of probabilities had not been established'. The jury should have regard to all the evidence that is not only the medical evidence but also the whole facts and circumstances of the case including the nature of the killing, the conduct of D before, at the time of and after the killing and any history of mental abnormality. Since the jury was entitled to disregard the medical evidence, it was also entitled to consider the quality and weight of that evidence. If D does not introduce medical evidence, the evidence of DR is bound to be very tenuous in nature though not inevitably valueless. It would be unlikely, however, to be sufficient to enable D to discharge his legal burden. Knowles (1965-70) The jury is not bound to accept the medical evidence if there is other evidence which, in its view, conflicts with it and outweighs it.

SUICIDE PACTS Where a person acting in pursuance of a suicide pact between himself and another kills the other, or is a party to the other party being killed by a third party, he is guilty of manslaughter. Barbados, S 13 (1), OPA Act, 1994-18 (giving effect to s.41 of the Homicide Act in England).

13. (1) It shall be manslaughter, and shall not be murder, for a person acting in pursuance of a suicide pact between himself and another to kill the other or be a party to the other killing himself or being killed by a third person. By a suicide pact it is meant that there is a common agreement between two or more persons with the object of the death of all whether or not each is to take his own life. However, nothing done by a person who enters into a suicide pact is to be treated as done by him in pursuance of the pact unless it is done while he has a settled intention of dying in pursuance of the pact. Barbados, S 13 (3), OPA Act 1994-18 (giving effect to s. 4 (3), Homicide Act in England. (3) For the purposes of this section suicide pact means a common agreement between two or more persons having for its object the death of all of them, whether or not each is to take his own life, but nothing done by a person who enters into a suicide pact shall be treated as done by him in pursuance of the pact unless it is done while he has the settled intention of dying in pursuance of the pact. The burden of proving that the killing was in pursuance of the pact lies on the defendant. S 13 (2), Barbados: - where it is shown that a person charged with the murder of another killed the other or was a party to his killing himself or being killed, it shall be for the defence to prove that the person charged was acting in pursuance of a suicide pact between himself and the other. S 7 (2), Jamaica A person who aids, counsels or procures another to kill himself is guilty of the offence of aiding suicide, an offence punishable with 14 years. S 12, OPA, Barbados:- (1) Any person who:(a) Procures another to kill himself; or (b) Counsels another to kill himself and thereby induces him to do so; or (c) Aids another in killing himself, is guilty of an offence and is liable on conviction on indictment to imprisonment for a term of 14 years. (2) No proceedings shall be instituted for an offence under this section except by or with the consent of the Director of Public Prosecutions. S 180, St.Lucia Criminal Code also speaks to abetment of suicide which carries a sentence of 20 years imprisonment. As far as the England position with respect to suicide pacts is concerned, where a defendant has entered a pact, and killed V with the intention of killing himself afterwards, but then has not committed suicide, it is voluntary manslaughter and not murder (s.4 Homicide Act 1957). The reason why D subsequently failed to kill himself is irrelevant, so long as he can prove that at the time of entering into the pact it was his genuine intention to commit suicide.

There is a very slim line between voluntary manslaughter by way of suicide pact, and the separate offence of assisting or encouraging suicide under s.2 of the Suicide Act 1961 in England. The difference between the two is in either killing V or helping V to die. The first is voluntary manslaughter which carries a maximum life sentence. The second is assisting suicide, which has a maximum sentence of 14 years imprisonment. The victim of a suicide pact or who is assisted does not commit a crime; it is no longer an offence to commit or attempt to commit suicide, in accordance with Section 1 of the Suicide Act 1961 in England.