DIRECTOR OF PUBLIC PROSECUTIONS
(APPELLANT)
v.
CAMPLIN (RESPONDENT)
(on appeal from the Court of Appeal (Criminal Division))
Lord Diplock
Lord Morris of Borth-y-Gest
Lord Simon of Glaisdale
Lord Fraser of Tullybelton
Lord Scarman
Lord Diplock
my lords,
For the purpose of answering the question of law upon which this appeal
will turn only a brief account is needed of the facts that have given rise to it.
The respondent, Camplin, who was fifteen years of age, killed a middle aged
Pakistani, Mohammed Lal Khan, by splitting his skull with a chapati pan,
a heavy kitchen utensil like a rimless frying pan. At the time the two of
them were alone together in Khan’s flat. At Camplin’s trial for murder
before Boreham J. his only defence was that of provocation so as to reduce
the offence to manslaughter. According to the story that he told in the
witness box but which differed materially from that which he had told to
the police, Khan had buggered him in spite of his resistance and had then
laughed at him. Whereupon Camplin had lost his self-control and attacked
Khan fatally with the chapati pan.
In his address to the jury on the defence of provocation Mr. Baker, who
was counsel for Camplin, had suggested to them that when they addressed
their minds to the question whether the provocation relied on was enough
to make a reasonable man do as Camplin had done, what they ought to
consider was not the reaction of a reasonable adult but the reaction of a
reasonable boy of Camplin’s age. The judge thought that this was wrong in
law. So in his summing he took pains to instruct the jury that they must
consider whether:
“… the provocation was sufficient to make a reasonable man in like
” circumstances act as the defendant did. Not a reasonable boy, as
” Mr. Baker would have it, or a reasonable lad ; it is an objective test—
” a reasonable man.”
The jury found Camplin guilty of murder. On appeal the Court of
Appeal (Criminal Division) allowed the appeal and substituted a conviction
for manslaughter upon the ground that the passage I have cited from the
summing-up was a misdirection. The court held that ” the proper direction
” to the jury is to invite the jury to consider whether the provocation was
” enough to have made a reasonable person of the same age as the defendant
” in the same circumstances do as he did.”
The point of law of general public importance involved in the case has
been certified as being:
” Whether, on the prosecution for murder of a boy of 15, where the
” issue of provocation arises, the jury should be directed to consider the
” question, under section 3 of the Homicide Act 1957, whether the
” provocation was enough to make a reasonable man do as he did by
” reference to a ‘ reasonable adult’ or by reference to a ‘ reasonable
” ‘boy of 15’.”
My Lords, the doctrine of provocation in crimes of homicide has always
represented an anomaly in English law. In crimes of violence which result
in injury short of death, the fact that the act of violence was committed under
provocation which had caused the accused to lose his self-control, does not
affect the nature of the offence of which he is guilty. It is merely a matter
to be taken into consideration in determining the penalty which it is appro-
priate to impose. Whereas in homicide provocation effects a change in the
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offence itself from murder for which the penalty is fixed by law (formerly
death and now imprisonment for life) to the lesser offence of manslaughter
for which the penalty is in the discretion of the judge.
The doctrine of provocation has a long history of evolution at common law.
Such changes as there had been were entirely the consequence of judicial
decision until Parliament first intervened by passing the Homicide Act 1957.
Section 3 deals specifically with provocation and alters the law as it had been
expounded in the cases, including three that had been decided comparatively
recently in this House, viz Mancini [1942] A.C.1.; Holmes [1946] A.C.588
and Bedder [1954] l.W.L.R. 1119. One of the questions in this appeal is
to what extent propositions as to the law of provocation that are laid down
in those cases and in particular in Bedder ought to be treated as being of
undiminished authority despite the passing of the Act.
For my part I find it instructive to approach this question by a brief
survey of the historical development of the doctrine of provocation at
common law. Its origin at a period when the penalty for murder was death
is to be found, as Tindal C.J., echoing Sir Michael Foster, put it in Hayward’s
Case (1833) 6 C. & P. 157 in “the law’s compassion to human infirmity”.
The human infirmity upon which the law first took compassion in a violent
age when men bore weapons for their own protection when going about
their business appears to have been chance medley or a sudden falling out at
which both parties have recourse to their weapons and fight on equal terms.
Chance medley as a ground of provocation was extended to assault and
battery committed by the deceased upon the accused in other circumstances
than a sudden falling out ; but with two exceptions actual violence offered
by the deceased to the accused remained the badge of provocation right
up to the passing of the Homicide Act 1957. The two exceptions were
the discovery by a husband of his wife in the act of committing adultery and
the discovery by a father of someone committing sodomy on his son ; but
these apart, insulting words or gestures unaccompanied by physical attack
did not in law amount to provocation.
The ” reasonable man ” was a comparatively late arrival in the law of
provocation. As the law of negligence emerged in the first half of the
nineteenth century he became the anthropomorphic embodiment of the
standard of care required by the law. It would appear that Keating J. in
Reg. v. Welsh (1869) 11 Cox C.C.366 was the first to make use of the
reasonable man as the embodiment of the standard of self control required
by the criminal law of persons exposed to provocation ; and not merely as a
criterion by which to check the credibility of a claim to have been provoked
to lose his self control made by an accused who at that time was not
permitted to give evidence himself. This had not been so previously and
did not at once become the orthodox view. In his Digest of the Criminal
Law published in 1877 and his History of the Criminal Law published in
1883 Sir James Fitzjames Stephen makes no reference to the reasonable man
as providing a standard of self-control by which the question whether the
facts relied upon as provocation are sufficient to reduce the subsequent
killing to manslaughter is to be decided. He classifies and defines the kinds of conduct of
the deceased that alone are capable in law of amounting to provocation ; and
appears to treat the questions for the jury as being limited to (1) whether
the evidence establishes conduct by the deceased that falls within one of
the defined classes ; and, if so (2) whether the accused was thereby actually
deprived of his self-control.
The reasonable man referred to by Keating J. was not then a term of
legal art nor has he since become one in criminal law. He (or she) has
established his (or her) role in the law of provocation under a variety of
different sobriquets in which the noun ” man ” is frequently replaced by
” person ” and the adjective ” reasonable ” by ” ordinary “, ” average ” or
“normal”. At least from as early as 1914 (See R. v. Lesbini [1914]
3 K.B. 1116), the test of whether the defence of provocation is entitled to
succeed has been a dual one: the conduct of the deceased to the accused
must be such as (1) might cause in any reasonable or ordinary person and
3
(2) actually causes in the accused a sudden and temporary loss of self-control
as the result of which he commits the unlawful act that kills the deceased.
But until the Homicide Act 1957 was passed there was a condition precedent
which had to be satisfied before any question of applying this dual test
could arise. The conduct of the deceased had to be of such a kind as was
capable in law of constituting provocation; and whether it was or not was
a question for the judge, not for the jury. This House so held in Mancini
[1942] A.C.1 where it also laid down a rule of law that the mode of resent-
ment, as for instance the weapon used in the act that caused the death, must
bear a reasonable relation to the kind of violence that constituted the
provocation.
It is unnecessary for the purposes of the present appeal to spend time on
a detailed account of what conduct was or was not capable in law of giving
rise to a defence of provocation immediately before the passing of the
Homicide Act 1957. It had remained much the same as when Stephen was
writing in the last quarter of the nineteenth century. What, however, is
important to note is that this House in Holmes [1946] A.C.588 had recently
confirmed that words alone, save perhaps in circumstances of a most extreme
and exceptional nature, were incapable in law of constituting provocation.
My Lords, this was the state of law when Bedder [1954] 1 W.L.R.1116,
fell to be considered by this House. The accused had killed a prostitute.
He was sexually impotent. According to his evidence he had tried to have
sexual intercourse with her and failed. She taunted him with his failure and
tried to get away from his grasp. In the course of her attempts to do so
she slapped him in the face, punched him in the stomach and kicked him in
the groin ; whereupon he took a knife out of his pocket and stabbed her
twice and caused her death. The struggle which led to her death thus
started because the deceased taunted the accused with his physical infirmity ;
but in the state of the law as it then was, taunts unaccompanied by any
physical violence did not constitute provocation. The taunts were followed
by violence on the part of the deceased in the course of her attempt to get
away from the accused, and it may be that this subsequent violence would
have a greater effect upon the self-control of an impotent man already
enraged by the taunts than it would have had upon a person conscious of
possessing normal physical attributes. So there might be some justification
for the judge to instruct the jury to ignore the fact that the accused was
impotent when they were considering whether the deceased’s conduct
amounted to such provocation as would cause a reasonable or ordinary person
to lose his self-control. This indeed appears to have been the ground on
which the Court of Criminal Appeal had approved the summing-up when
they said: ” no distinction is to be made in the case of a person who, though
” it may not be a matter of temperament, is physically impotent, is conscious
” of that impotence, and therefore mentally liable to be more excited unduly
” if he is ‘ twitted ‘ or attacked on the subject of that particular infirmity.”
This statement for which I have myself supplied the emphasis, was
approved by Lord Simonds L.C. speaking on behalf of all the members of
this House who sat on the appeal; but he also went on to lay down the
broader proposition that ” 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.”
Section 3 of the Homicide Act 1957 is in the following terms:
” Where on a charge of murder there is evidence on which the jury
” can find that the person charged was provoked (whether by things
” done or by things said or by both together) to lose his self-control,
” the question whether the provocation was enough to make a reasonable
” man do as he did shall be left to be determined by the jury : and
” in determining that question the jury shall take into account everything
” both done and said according to the effect which, in their opinion,
” it would have on a reasonable man.”
4
My Lords, this section was intended to mitigate in some degree the harsh-
ness of the common law of provocation as it had been developed by recent
decisions in this House. It recognises and retains the dual test: the provoca-
tion must not only have caused the accused to lose his self-control but
must also be such as might cause a reasonable man to react to it as the
accused did. Nevertheless it brings about two important changes in the
law. The first is: it abolishes all previous rules of law as to what can or
cannot amount to provocation and in particular the rule of law that, save
in the two exceptional cases I have mentioned, words unaccompanied by
violence could not do so. Secondly it makes it clear that if there was any
evidence that the accused himself at the time of the act which caused the
death in fact lost his self-control in consequence of some provocation however
slight it might appear to the judge, he was bound to leave to the jury the
question, which is one of opinion not of law: Whether a reasonable man
might have reacted to that provocation as the accused did.
I agree with my noble and learned friend Lord Simon of Glaisdale that
since this question is one for the opinion of the jury the evidence of witnesses
as to how they think a reasonable man would react to the provocation is
not admissible.
The public policy that underlay the adoption of the ” reasonable man ”
test in the common law doctrine of provocation was to reduce the incidence
of fatal violence by preventing a person relying upon his own exceptional
pugnacity or excitability as an excuse for loss of self-control. The rationale
of the test may not be easy to reconcile in logic with more universal proposi-
tions as to the mental element in crime. Nevertheless it has been preserved
by the Homicide Act 1957 but falls to be applied now in the context of a
law of provocation that is significantly different from what it was before
the Act was passed.
Although it is now for the jury to apply the ” reasonable man ” test, it
still remains for the judge to direct them what, in the new context of the
section, is the meaning of this apparently inapt expression, since powers
of ratiocination bear no obvious relationship to powers of self-control.
Apart from this the judge is entitled, if he thinks it helpful, to suggest con-
siderations which may influence the jury in forming their own opinion as to
whether the test is satisfied ; but he should make it clear that these are not
instructions which they are required to follow ; it is for them and no one
else to decide what weight, if any, ought to be given to them.
As I have already pointed out for the purposes the law of provocation the
” reasonable man ” has never been confined to the adult male. It means an
ordinary person of either sex, not exceptionally excitable or pugnacious,
but possessed of such powers of self-control as everyone is entitled to
expect that his fellow citizens will exercise in society as it is today. A
crucial factor in the defence of provocation from earliest times has been
the relationship between the gravity of provocation and the way in which
the accused retaliated, both being judged by the social standards of the
day. When Hale was writing in the seventeenth century pulling a man’s
nose was thought to justify retaliation with a sword ; when Mancini (ubi
sup) was decided by this House . a blow with a fist would not justify retalia-
tion with a deadly weapon. But so long as words unaccompanied by violence
could not in law amount to provocation the relevant proportionality between
provocation and retaliation was primarily one of degrees of violence. Words
spoken to the accused before the violence started were not normally to be
included in the proportion sum. But now that the law has been changed
so as to permit of words being treated as provocation even though unaccom-
panied by any other acts, the gravity of verbal provocation may well depend
upon the particular characteristics or circumstances of the person to whom
a taunt or insult is addressed. To taunt a person because of his race, his
physical infirmities or some shameful incident in his past may well be
considered by the jury to be more offensive to the person addressed, how-
ever equable his temperament, if the facts on which the taunt is founded
5
are true than it would be if they were not. It would stultify much of
the mitigation of the previous harshness of the common law in ruling out
verbal provocation as capable of reducing murder to manslaughter if the
jury could not take into consideration all those factors which in their opinion
would affect the gravity of taunts or insults when applied to the person to
whom they are addressed. So to this extent at any rate the unqualified
proposition accepted by this House in Bedder that for the purposes of
the ” reasonable man” test any unusual physical characteristics of the
accused must be ignored requires revision as a result of the passing of the
Homicide Act 1957.
That he was only fifteen years of age at the time of the killing is the
relevant characteristic of the accused in the instant case. It is a characteristic
which may have its effects on temperament as well as physique. If the jury
think that the same power of self-control is not to be expected in an ordinary,
average or normal boy of fifteen as in an older person, are they to treat
the lesser powers of self-control possessed by an ordinary, average or
normal boy of fifteen as the standard of self-control with which the conduct
of the accused is to be compared?
It may be conceded that in strict logic there is a transition between
treating age as a characteristic that may be taken into account in assessing
the gravity of the provocation addressed to the accused and treating it as
a characteristic to be taken into account in determining what is the degree
of self-control to be expected of the ordinary person with whom the accused’s
conduct is to be compared. But to require old heads upon young shoulders
is inconsistent with the law’s compassion to human infirmity to which Sir
Michael Foster ascribed the doctrine of provocation more than two centuries
ago. The distinction as to the purposes for which it is legitimate to take the
age of the accused into account involves considerations of too great nicety
to warrant a place in deciding a matter of opinion, which is no longer one
to be decided by a judge trained in logical reasoning but by a jury drawing on
their experience of how ordinary human beings behave in real life.
There is no direct authority prior to the Act that states expressly that the
age of the accused could not be taken into account in determining the
standard of self-control for the purposes of the reasonable man test—unless
this is implicit in the reasoning of Lord Simonds L.C. in Bedder. The Court
of Appeal distinguished the instant case from that of Bedder on the ground
that what it was there said must be ignored was an unusual characteristic
that distinguished the accused from ordinary normal persons, whereas nothing
could be more ordinary or normal than to be aged fifteen. The reasoning
in Bedder would, I think, permit of this distinction between normal and
abnormal characteristics, which may affect the powers of self-control of the
accused ; but for reasons that 1 have already mentioned the proposition
stated in Bedder requires qualification as a consequence of changes in the
law affected by the Homicide Act 1957. To try to salve what can remain
of it without conflict with the Act could in my view only lead to unnecessary
and unsatisfactory complexity in a question which has now become a question
for the jury alone. In my view Bedder, like Mancini and Holmes, ought no
longer to be treated as an authority on the law of provocation.
In my opinion a proper direction to a jury on the question left to their
exclusive determination by section 3 of the Homicide Act 1957 would be on
the following lines. The judge should state what the question is using the
very terms of the section. He should then explain to them that the reasonable
man referred to in the question 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’s characteristics as they 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 also would react to the provocation as the accused
did.
I accordingly agree with the Court of Appeal that the judge ought not to
have instructed the jury to pay no account to the age of the accused even
6
though they themselves might be of opinion that the degree of self-control
to be expected in a boy of that age was less than in an adult. So to direct
them was to impose a fetter on the right and duty of the jury which the Act
accords to them to act upon their own opinion on the matter.
1 would dismiss this appeal.
Lord Morris of Borth-y-Gest
MY LORDS,
For many years past in cases where murder has been charged, it has been
recognised by courts that there can be circumstances in which the accused
person was so provoked that his unlawful act was held to amount to man-
slaughter rather than to murder. Due and sensible regard to human nature
and to human frailty and infirmity was being paid. In Hayward (1833) 6 C.
& P. 157 at p. 159 this result was said to be “in compassion to human
infirmity.” But courts were careful to ensure that a plea of provocation should
involve more than some easy explanation as to how a death had been caused.
What was involved was that the accused had acted in ” heat of blood ” or in
a ” transport of passion ” or in other words had lost his self-control and that
this was the result of the provocation. But in addition to this and by way of
limitation, courts introduced certain tests of reasonableness. Was it but
natural for even a reasonable man to have been as much aroused as was the
accused? Furthermore, might even a reasonable man have been induced in
the violence of passion to do what the accused did.
These lines of approach were at different times expressed in different ways.
In Reg. v. Welsh (1869) 11 Cox C.C. 336 Keating J. in his summing up used
the following words: —
” The question, therefore, is—first, whether there is evidence of any
” such provocation as could reduce the crime from murder to man-
” slaughter ; and, if there be any such evidence, then it is for the jury
” whether it was such that they can attribute the act to the violence of
” passion naturally arising therefrom, and likely to be aroused in the
” breast of a reasonable man The law is, that there must
” exist such an amount of provocation as would be excited by the circum-
” stances in the mind of a reasonable man, and so as to lead the jury to
” ascribe the act to the influence of that passion The Haw
” contemplates the case of a reasonable man, and requires that the
” provocation shall be such as that such a man might naturally be
” induced, in the anger of the moment, to commit the act.”
When Keating J. said that ” the law contemplates the case of a reasonable
” man ” was he doing more than saying that the jury had to consider whether
the accused had reasonably been aroused and had reasonably been subject
to a violence of passion. Could a reasonable man in the position of the
accused have been “excited by the circumstances”? Could such a person
have done what the accused did? Those were all questions for the jury.
At a much later date, in Holmes v. D.P.P. [19461 A.C.588, Viscount Simon
at p.597 said : —
” If, on the other hand, the case is one in which the view might fairly
” be taken (a) that a reasonable person, in consequence of the provocation
” received, might be so rendered subject to passion or loss of control as
” to be led to use the violence with fatal results, and (b) that the accused
” was in fact acting under the stress of such provocation, then it is for
” the jury to determine whether on its view of the facts manslaughter
” or murder is the appropriate verdict.”
7
Before the time when Bedder v. Director of Public Prosecutions (1954) 38
Cr. App. R. 133 came under consideration, the courts seem to have created
the conception of ” the reasonable man” as a mythical person seemingly
not only detached from but also rather remote from the accused person and
having certain attributes as laid down by the court and as the courts directed
juries to accept.
Who then or what then was the ” reasonable man “? If a reasonable man
is a man who normally acts reasonably, it becomes important to consider
the mind of the accused person when considering his reactions to some
provocation. To consider the mind of some different person, and to consider
what his reactions would have been if comparably provoked could involve an
unreal test. In the argument in Bedder’s case the question was raised as to
the position of a dwarf. If at the date of that case things said could have
amounted to provocation and if grossly offensive things in relation to his
stature had been said to a dwarf—had the jury to consider not whether the
dwarf only acted as a reasonable dwarf might have acted in being subject
to passion and in doing what he did or must the jury consider what would
have been the reactions of a man of normal physique if the things said had
been said to him?
These questions in regard to the reasonable man must now be reviewed
in the light of the provisions of the Homicide Act 1957. Those contained
in section 2 in reference to persons suffering from diminished responsibility
may merely be noted in passing. Those contained in section 3 are of
supreme importance. That section provides as follows: —
” Where on a charge of murder there is evidence on which the jury
” can find that the person charged was provoked (whether by things
” done or by things said or by both together) to lose his self-control, the
” question whether the provocation was enough to make a reasonable
” man do as he did shall be left to be determined by the jury; and in
” determining that question the jury shall take into account everything
” both done and said according to the effect which, in their opinion, it
” would have on a reasonable man.”
One big change enacted was that things said could, either alone or in
conjunction with things done, constitute provocation. It will first be for the
court to decide whether, on a charge of murder, there is evidence on which
a jury can find that the person charged was provoked to lose his self-
control : thereafter, as it seems to me, all questions are for the jury. It will
be for the jury to say whether they think that whatever was or may have been
the provocation such provocation was in their view enough to make a
reasonable man do as the accused did: the jury must take into account
everything both done and said according to the effect which they think
there would have been on a reasonable man. Who then or what then is
the ” reasonable man ” who is referred to in the section? It seems to me
that the courts are no longer entitled to tell juries that a reasonable man
has certain stated and defined features. It is for the jury to consider all
that the accused did: it is for them to say whether the provocation was
enough to make ” a reasonable man ” do as the accused did. The jury
must take into account ” everything both done and said.” What do they
think would have been the effect on a reasonable man? They must bring
their ” collective good sense ” to bear. As Lord Goddard C.J. said in
Reg. v. McCarthy [1954] 2 Q.B. 105 at p. 112:-
” No court has ever given, nor do we think ever can give, a definition
” of what constitutes a reasonable or an average man. That must be
” left to the collective good sense of the jury, and what no doubt would
” govern their opinion would be the nature of the retaliation used by
” the provoked person.”
So in relation to the facts in Bedder’s case apart from the painful physical
kick, a jury would now have to consider the effect of the things said on a
reasonable man. If an impotent man was taunted about his impotence the
jury would not today be told that an impotent man could not be a reasonable
8 .
man as contemplated by the law. The jury would be entitled to decide that
the accused man acted as ” a reasonable man ” in being provoked as he was
and in doing ” as he did.”
It seems to me that as a result of the changes effected by section 3 a jury
is fully entitled to consider whether an accused person, placed as he was, only
acted as even a reasonable man might have acted if he had been in the
accused’s situation. There may be no practical difference between, on the
one hand, taking a notional independent reasonable man but a man having
the attributes of the accused and subject to all the events which surrounded
the accused and then considering whether what the accused did was only
what such a person would or might have done, and, on the other hand,
taking the accused himself with all his attributes and subject to all the
events and then asking whether there was provocation to such a degree as.
would or might make a reasonable man do what he (the accused) in
fact did.
In my view it would now be unreal to tell a jury that the notional
” reasonable man ” is someone without the characteristics of the accused:
it would be to intrude into their province. A few examples may be given.
If the accused is of particular colour or particular ethnic origin and things
are said which to him are grossly insulting it would be utterly unreal if
the jury had to consider whether the words would have provoked a man of
different colour or ethnic origin—or to consider how such a man would
have acted or reacted. The question would be whether the accused if he
was provoked only reacted as even any reasonable man in his situation would
or might have reacted. If the accused was ordinarily and usually a very
unreasonable person, the view that on a particular occasion he acted just
as a reasonable person would or might have acted would not be impossible
of acceptance.
It is not disputed that the ” reasonable man ” in section 3 could denote
a reasonable person and so a reasonable woman. If words of grievous
insult were addressed to a woman, words perhaps reflecting on her chastity or
way of life, a consideration of the way in which she reacted would have to
take account of how other women being reasonable women would or might
in like circumstances have reacted. Would or might she, if she had been a
reasonable woman, have done what she did.
In the instant case the considerations to which 1 have been referring
have application to a question of age. The accused was a young man.
Sometimes in the summing up he was called a boy or a lad. He was at the
time of the events described at the trial under 16 years of age: he was
accountable in law for the charge preferred against him. More generally in
the summing up he was referred to as a young man: that would appear to
me to have been appropriate. In his summing up however the learned judge
in referring to a reasonable man seemed to emphasise to the jury that the
reasonable man with whom they must compare the accused could not be a
young man of the age of the accused but had to be someone older and
indeed had to be someone of full age and maturity. In my view that was
not correct. The jury had to consider whether a young man of about the
same age as the accused but placed in the same situation as that which
befell the accused could, had he been a reasonable young man, have reacted
as did the accused and could have done what the accused did. For the
reasons which I have outlined the question so to be considered by the jury
would be whether they considered that the accused, placed as he was,
and having regard to all the things that they find were said, and all the
things that they find were done, only acted as a reasonable young man might
have acted, so that, in compassion, and having regard to human frailty,
he could to some extent be excused even though he had caused a death.
I consider that the Court of Appeal came to the correct conclusion and
agreeing with what my noble and learned friend Lord Diplock has said
as to the direction to a jury, I would dismiss the appeal.
9
Lord Simon of Glaisdale
MY LORDS,
The accused, the respondent to this appeal, was indicted for murder.
He pleaded Guilty of manslaughter, but Not Guilty of murder. His defence
was provocation. He was found guilty of murder; but the verdict was
quashed on appeal and a verdict of manslaughter was substituted. The
prosecution now appeals to your Lordships’ House.
At the time of the offence the accused was 15 years of age. It was the
common assumption of his counsel, of the trial judge, Boreham J., and of
the Court of Appeal that the jury might have thought that the age of the
accused could have been a factor affecting his self-control—in other words,
that the jury might have held that a boy of 15 was more liable to lose
his self-control than a man of full age. It was for this reason that
Boreham J., no doubt feeling constrained to do so by Bedder (1954) 38
Cr. App. R. 133, directed the jury that, to justify a verdict of manslaughter,
the provocation might be sufficient to make a reasonable man (expressly,
not a reasonable boy or lad), in like circumstances to those of the accused
at the time of the homicide, act as the accused did. And it was for this
reason that the Court of Appeal, distinguishing Bedder, allowed the appeal
and substituted a verdict of manslaughter. Your Lordships must, I think,
proceed on the same assumption for the purposes of this appeal.
In Bedder, the defendant, who was sexually impotent, had in vain
attempted to have intercourse with a prostitute. The woman jeered at him
for his impotence ; and when he tried to hold her she slapped his face and
punched him in the stomach ; and as he pushed her back she kicked him in
the private parts. He took a knife from his pocket and struck her two blows
with it, which killed her. It was argued on his behalf that the ” reasonable
” man ” (whom a long line of previous authorities since 1859 had established
as the standard for measuring the self-control required where a defence of
provocation is in question) should be invested with the physical qualities of
the defendant (in that case, impotence), and that the question should be
asked, that would be the reaction of an impotent reasonable man in the
circumstances? But the judge directed the jury in these terms:
” The reasonable person, the ordinary person, is the person you must
” consider when you are considering the effect which any acts, any
” conduct, any words, might have to justify the steps which were taken
” in response thereto, so that an unusually excitable or pugnacious
” individual, or a drunken one or a man who is sexually impotent is
” not entitled to rely on provocation which would not have led an
” ordinary person to have acted in the way which was in fact carried
” out . . .”
This direction was upheld both in the Court of Criminal Appeal and in your
Lordships’ House.
It is, I think, important to note what was the point of law certified by the
Attorney General for the consideration of this House, because it defines the
scope of the decision. The crucial passage is as follows:
” Where provocation is set up as the defence to a charge of murder,
” to what extent (if at all) it is relevant, in considering the effect on a
” reasonable man of the alleged provocation, that the accused suffers
” from a physical infirmity or disability likely to render a person similarly
” affected more susceptible to the provocation alleged than a person
” not so affected ; . . .”
Lord Simonds L.C., with whose speech the other members of the House
agreed, gave three main reasons for dismissing the appeal:
(1) ” 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 characterisic, be it impotence or another.” (p. 141)
10
(Lord Simonds’ reference to ” unusually excitable or pugnacious ” was a direct
citation from the speech of Viscount Simon, with whom the rest of the
House concurred, in Mancini [1942]AC 1, 9, where, approving Lesbini
[1914)3 K.B. 1116, he said:
“… an unusually excitable or pugnacious individual is not entitled
” to rely on provocation which would not have led an ordinary person
” to act as he did.”)
(2) ” Moreover, the proposed distinction appears to me to ignore the
” fundamental fact that the temper of a man which leads him to react
” in such and such a way to provocation, is, or may be, itself conditioned
” by some physical defect. It is too subtle a refinement for my mind or,
” I think, for that of a jury to grasp that the temper may be ignored
” but the physical defect taken into account.” (p.141).
(3) To invest the hypothetical reasonable man with the peculiar character-
istics of the accused would make nonsense of the test established by authority.
” If the reasonable man is then deprived in whole or in part of
” his reason, or the normal man endowed with abnormal characteristics,
” the test ceases to have any value.” (p. 142)
When Bedder was decided your Lordships’ House was bound by the rule
of precedent; Bedder followed preceding authorities in your Lordships’
House ; and the speech of Lord Simonds is closely reasoned in the light of
those authorities. (It is presumably in consequence of this that some critics
of the decision would wish to go back beyond 1859 and dispense with
the ” reasonable man ” test altogether). Subsequent discussion of Bedder
has, however, shown that some of its implications constitute affronts to
common sense and any sense of justice. By way of example only, a blow
on the face might be quite insufficient to make an ordinary reasonable man
lose his self-control, whereas if he had a severe abscess in his cheek the
situation might be very different; but, according to Bedder, the abscess
would have to be disregarded. And it is accepted that the phrase ” reasonable
” man ” really means ” reasonable person “, so as to extend to ” reasonable
“woman” (see, specifically, Holmes [1946]A.C. 588, 597). So, although
this has never yet been a subject of decision, a jury could arguably, consistent
with Bedder and its precedent authorities, take the sex of the accused into
account in assessing what might reasonably cause her to lose her self-control.
(A ” reasonable woman ” with her sex eliminated is altogether too abstract
a notion for my comprehension or, I am confident, for that of any jury.
In any case, it hardly makes sense to say that an impotent man must be
notionally endowed with virility before he ranks within the law of provoca-
tion as a reasonable man, yet that a normal woman must be notionally
stripped of her femininity before she qualifies as a reasonable woman).
If so, this is already some qualification on the ” reasonable person ” as a
pure abstraction devoid of any personal characteristics, even if such a
concept were of any value to the law. This qualification might be crucial :
take the insult ” whore” addressed respectively to a reasonable man and
a reasonable woman. Nevertheless, as counsel for the appellant sternly
and cogently maintained, Bedder would preclude the jury from considering
that the accused was, say, pregnant (Annie Smith (1914) 11 Cr. App.R. 36),
(or presumably undergoing menstruation or menopause).
Such refinements, anomalies and affronts to common sense invite courts
to distinguish an authority. In the instant case the Court of Appeal dis-
tinguished Bedder on the ground that age is a universal quality not a personal
idiosyncrasy. It is certainly not a ” physical infirmity or disability “. This
distinction is, further, arguably justified by the implications of the ” reasonable
woman ” as a standard. It could be said that the law, in distinguishing from
personal idiosyncrasy something universal like age, was doing no more
than it had already done in distinguishing implicitly something universal
like sex.
Nevertheless, the distinction drawn by the Court of Appeal leads to great
difficulties. If youth is to be considered (and, presumably, advanced years
11
too), what about immaturity in a person of full years or premature senility?
These would seem to fall on the other, on the Bedder, side of the line.
One calls to mind what Lord Reid said in Reg. v. Nat. Ins. Comr. Ex. p.
Hudson [1972]A.C. 944, 966:
” It is notorious that where an existing decision is disapproved but
” cannot be overruled courts tend to distinguish it on inadequate
” grounds.”
The fine distinctions and the anomalies inherent in distinguishing Bedder
are such as, in my judgment, to make it incumbent to face the issue whether
Bedder should be followed or is so inconvenient an authority that it should
be regarded as no longer representing the law. The latter course involves
considerable retracing of judicial steps. In order to see where it would be
necessary to go, it is desirable to investigate the reasons for the various
rules which have been evolved in the law of provocation.
The original reasons in this branch of the law were largely reasons of the
heart and of common sense, not the reasons of pure juristic logic. The law here, as
so often, has been moulded by living experience. The
potentiality of provocation to reduce murder to manslaughter was, as Tindal
C. J. said in Hayward (1833)6 C. & P. 157, 159, “in compassion to human
” infirmity.” But justice and common sense then demanded some limitation:
it would be unjust that the drunk man or one exceptionally pugnacious or
bad-tempered or over-sensitive should be able to claim that these matters
rendered him peculiarly susceptible to the provocation offered, where the
sober and even-tempered man would hang for his homicide. Hence, I think,
the development of the concept of the reaction of a reasonable man to the
provocation offered—even though it may have originally come into this
branch of the law by way of testing the credibility of the claim of the
accused (who could not at that time himself give evidence) that he had
been so deprived of his self-control as to be incapable of forming the
relevant intent. But it is one thing to invoke the reasonable man for the
standard of self-control which the law requires: it is quite another to sub-
stitute some hypothetical being from whom all mental and physical attributes
(except perhaps sex) have been abstracted.
Nevertheless, although your Lordships are no longer bound to follow a
previous decision of your Lordships’ House, and are free to retrace steps if
it appears that the following of authority has led into a false position, and
although the inconveniences, anomalies and injustices implicit in the Bedder
decision are now apparent after the lapse of a quarter cf a century, I am
most reluctant to urge your Lordships to overrule Bedder. This is partly
for the reasons given by Lord Reid in Knuller [1973] A.C. 435, 455 B-E.
But these are reinforced in the instant case. The issue here involves important
questions of public safety ; and Parliament as a whole constitutes a more
suitable matrix for the framing of legal rules which concern such issues.
Moreover, in August 1976 the Criminal Law Revision Committee put out
a Working Paper which covers the issue involved in this appeal: the paper
invited comments on provisional proposals for amendment of the law;
and no doubt the Committee will shortly be producing its final report. I feel
great reluctance in taking any step which might pre-empt the consequent
decision.
But there is one factor here which makes the instant situation a peculiar
one. Section 3 of the Homicide Act 1957 has supervened on Bedder and
makes it incumbent to determine whether Bedder has thereby been weakened
as an authority—particularly in view of the unsatisfactory consequences of
merely distinguishing Bedder. It reads as follows:
” Where on a charge of murder there is evidence on which the jury
” can find that the person charged was provoked (whether by things done
” or by things said or by both together) to lose his self-control, the ques-
” tion whether the provocation was enough to make a reasonable man do
” as he did shall be left to be determined by the jury ; and in determining
” that question the jury shall take into account everything both done and
” said according to the effect which, in their opinion, it would have on a
” reasonable man.”
12
The main changes affected by this section were, first, to provide that words
alone could constitute provocation in law and, secondly, to make the issue
one for the jury alone. I would also draw particular attention to the words
” the jury shall take into account everything . . . according to the effect which,
” in their opinion, it would have on a reasonable man.”
The provision that words alone can constitute provocation accentuates the
anomalies, inconveniences and injustices liable to follow from the Bedder
decision. The effect of an insult will often depend entirely on a characteristic
of the person to whom the insult is directed. ” Dirty nigger ” would probably
mean little if said to a white man or even if said by one coloured man to
another; but is obviously more insulting when said by a white man to a
coloured man. Similarly, such an expression as ” Your character is as crooked
” as your back ” would have a different connotation to a hunchback on the
one hand and to a man with a back like a ramrod on the other. (I would,
however, wish to emphasise that I do not suggest that a jury would neces-
sarily, or even probably, consider such insults as I have cited in this speech
as in themselves excusing homicidal violence, any more than it must be
assumed that I think it likely that a jury would hold that a mid or late teenager
was to be credited with any exceptional incapacity for self-control so as to
excuse homicidal violence). But if the jury cannot take into account the
characteristic which particularly points the insult, I cannot see that they are
taking ” into account everything . . . according to the effect … it would have
” on a reasonable man.” In my judgment the reference to ” a reasonable
man ” at the end of the section means ” a man of ordinary self-control “.
If this is so the meaning satisfies what I have ventured to suggest as the
reason for importing into this branch of the law the concept of the reasonable
man—namely, to avoid the injustice of a man being entitled to rely on his
exceptional excitability (whether idiosyncratic or by cultural environment or
ethnic origin) or pugnacity or ill-temper or on his drunkenness. (I do not
purport to be exhaustive in this enumeration.)
There is another respect in which the 1957 Act may have affected the
rigour of the Bedder doctrine and thus undermined its authority. There have
been differences of opinion lately in your Lordships’ House on how far one
may have forensic recourse to a public or parliamentary report. I cite para-
graph 53 of the Working Paper to which I have referred of the Criminal Law
Revision Committee (as I would an authoritative text-book) as an expression
of view of the law formed by a body of criminal lawyers of outstanding emin-
ence and wide-ranging experience:
” In this country the law on this matter [provocation] has been in-
” directly affected by the introduction of the defence of diminished
” responsibility. It is now possible for a defendant to set up a combined
” defence of provocation and diminished responsibility, the practical
” effect being that the jury may return a verdict of manslaughter if they
” take the view that the defendant suffered from an abnormality of mind
” and was provoked. In practice this may mean that a conviction of
” murder will be ruled out although the provocation was not such as
” would have moved a person of normal mentality to kill.”
In the exceptional circumstances whereby the reasoning of a decision of
your Lordships’ House, and that of the authorities on which it was founded,
has been undermined by a subsequent Act of Parliament (even though the
decision has not been clearly and expressly abrogated), I think that your
Lordships are justified in saying that Bedder should no longer be followed.
I think that the law as it now stands in this country is substantially the same
as that enacted in the New Zealand Crimes Act 1961 section 169(2) as
explained by the Court of Appeal of New Zealand in The Queen v. McGregor
[1962] NZLR. 1069.
I think that the standard of self-control which the law requires before
provocation is held to reduce murder to manslaughter is still that of the
reasonable person (hence his invocation in section 3); but that, in determining
whether a person of reasonable self-control would lose it in the circumstances,
the entire factual situation, which includes the characteristics of the accused,
must be considered.
13
There is only one other matter which I would desire to add., It was
suggested on behalf of the DPP that if what his counsel called the ” completely
” objective test” as established by Bedder were modified, so that it was open
to the jury to consider such mental or physical characteristics of the defendant
as might affect his self-control in the relevant situation, the jury might
require evidence as to how a person of reasonable self-control would be
likely to react in such circumstances—or at least that it would be open to
either side to call such evidence. In other words, evidence would be
required, or alternatively be admissible, to show, for example, how a pregnant
woman or a 15-year-old boy or a hunchback would, exercising reasonable
self-control, react in the circumstances. I cannot agree. Evidence of the
pregnancy or the age or the malformation would be admissible. But whether
the defendant exercised reasonable self-control in the totality of the circum-
stances (which would include the pregnancy or the immaturity or the
malformation) would be entirely a matter for consideration by the jury
without further evidence. The jury would, as ever, use their collective
common sense to determine whether the provocation was sufficient to make a
person of reasonable self-control in the totality of the circumstances (includ-
ing personal characteristics) act as the defendant did. I certainly do not think
that is beyond the capacity of a jury. I have heard nothing to suggest that
juries in New Zealand find the task beyond them.
My Lords, for the foregoing reasons I would dismiss the appeal.
I have had the privilege of reading in draft the speech prepared by my
noble and learned friend on the Woolsack ; and 1 agree with what he proposes
as the appropriate direction to the jury.
Lord Fraser of Tullybelton
my lords,
I have had the advantage of reading in draft the speech prepared by my
noble and learned friend Lord Diplock. I entirely agree with it, and for
the reasons given by him I would dismiss the appeal.
Lord Scarman
my lords,
I have had the advantage of reading in draft the speech delivered by my
noble and learned friend Lord Diplock. I agree with it, and would dismiss
the appeal.
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