Case No: 200106700Z2
Neutral Citation No: [2003] EWCA Crim 815
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM MRS JUSTICE HALLETT
Royal Courts of Justice
Strand, 
London, WC2A 2LL

Wednesday 26th March 2003
Before :

LORD JUSTICE MANTELL
MR JUSTICE JACK
and 
MR JUSTICE HEDLEY

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	REGINA		
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	DAVID WELLER		

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(Transcript of the Handed Down Judgment of
Smith Bernal Wordwave Limited, 190 Fleet Street
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Mr C Campbell-Clyne Appeared for the Appellant
Mr N Ford QC & Mr W Hart Appeared for the Crown

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Judgment

Lord Justice Mantell: 

1.	On 1 November 2001 the appellant, David Weller, was convicted of the murder of his girlfriend, Ziggy Fisher, at the conclusion of his trial before Hallett J. in the Crown Court at Bristol. The sole issue for the jury at the trial was whether the appellant was guilty of murder as charged or guilty of manslaughter by reason of provocation. There was no dispute that he had strangled Ziggy Fisher. The appeal turns on the directions given by the judge to the jury with regard to provocation. It involves consideration of how a jury is to be directed on provocation following the decision of the House of Lords in R v Smith (Morgan) [2001] A.C.146, [2001] 1 Cr.App.R. 31. The appeal is brought with the leave of the full court.

2.       It is unnecessary to refer to the facts in any detail. The appellant and Ziggy      Fisher had been lovers for about 12 months.  She was 18 years old; he was 34. On Friday, 27 October 2000 after they had been living together for about five months there was a heated argument because she wished to end the relationship. It appears that this was because he was unduly possessive and jealous as to which there was considerable evidence.  She spent the night with a friend and over the weekend attempted to collect her belongings from the flat they shared in Bridgwater. On Monday 30 October they met up and went back to the flat. Another heated argument occurred over her conduct with other men.  The appellant grabbed her by the throat and strangled her. He hid her body.  He gave himself up to the police on Wednesday, 1 November 2001.
The law of provocation 
3.  	The issue raised by the appeal is whether the judge’s directions to the jury on the issue of provocation were adequate. We do not intend any wider review of the law relating to provocation than is necessary to set the legal context and to deal with the matters that arise on this appeal.
4.     	As is well known, there are two elements to the ‘defence’ of provocation.  For present purposes they may be identified as follows:
(a)   whether the defendant lost his self-control;
(b)   whether he should reasonably have controlled himself.
They are sometimes called the ‘subjective element’ and the ‘objective element’. The first element sets up the defence. The second sets a limit.

5.    	The first element raises a question of actual fact: at the time of the killing had the defendant suddenly and temporarily lost his self-control?  Whether or not the defendant was likely to lose his self-control because of the position in which he found himself or because of the kind of man he was, is at first sight irrelevant because the issue is not why he lost his control but whether he did. We refer to the Judicial Studies Board model direction published in August 2000, which does not include any reference to the ‘characteristics’ of the defendant at this point.

6.   	There may, however, be inconclusive direct evidence as to whether the defendant did lose his self-control. Evidence coming from the defendant that he did lose his self-control may be challenged. Then other factors as mentioned may come into play. The relevance of such evidence to this question was accepted in Smith – see per Lord Slynn [2001] 1 A.C. 146 at 152H. 

7.    	Section 3 of the Homicide Act 1957 is concerned with the second element and not with the first. It provides:
3.   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 said and done according to the effect which, in their opinion, it would have on a reasonable man.
8. 	In  Smith the House of Lords was concerned with the effect of the section and what would be an appropriate direction to a jury. Although it was probably only Lord Hoffmann among the majority in the House in favour of dismissing the appeal who directly considered how juries should be directed, the speeches of Lord Slynn and Lord Clyde (who with Lord Hoffmann constituted the majority) necessarily touch upon the question.  The specific issue on the facts of Smith was whether, in considering whether the defendant should have controlled himself, his depressive illness was to be taken into account. The answer was ‘yes’.

9.   	Lord Slynn stated at [2001] 1 A.C. at 155F that: 
“In my view the section requires that the jury should ask what could reasonably be expected of a person with the accused’s characteristics. …  It is thus not enough for the accused to say “I am a depressive, therefore I cannot be expected to exercise self-control.” The jury must ask whether he has exercised the degree of self-control to be exercised by someone is his situation.”
10.   	At [2001] 1 A.C. 163C  Lord Hoffmann concluded in relation to the construction of section 3:
“It follows, in my opinion, that it would not be consistent with section 3 for the judge to tell the jury that they should ignore any factor or characteristic of the accused in deciding whether the objective [i.e. the second] element of provocation has been satisfied. That would be to trespass upon their province.”
11.   	Likewise, at page 166G/H he concluded his review of R v Camplin [1978] A.C. 705 with these words:
“The jury is entitled to act on its own opinion of whether the objective element of provocation has been satisfied and the judge is not entitled to tell them that for this purpose the law requires them to exclude from consideration any of the circumstances or characteristics of the accused.”
12.	Later at page 169F,  he considered the Australian case of R v Stingel (1990) 171 C.L.R. 312. An infatuated man had stabbed his former girlfriend’s lover. The High Court of Australia held that the judge had been right to withdraw the issue of provocation from the jury. Lord Hoffmann agreed, saying ‘Male possessiveness and jealousy should not today be an acceptable reason for loss of self-control leading to homicide,…. .’  He went on to say that section 3 forbad an English judge from withdrawing the issue from the jury.  He then said: ‘So, it is suggested, a direction that characteristics such as jealousy and obsession should be ignored in relation to the objective element is the best way to ensure that people like Stingel cannot rely on the defence.’  We note that Lord Hoffmann is here simply restating a suggestion and not commending an approach.

13.  	At the beginning of his first paragraph under the heading ‘Guiding the jury’, page 171A, Lord Hoffmann referred to the concern that, if certain characteristics were not excluded from the jury’s consideration, they might receive the impression the law actually required them to take such matters into account.  This was, he said, the risk which followed from section 3: but judges could guide juries taking account of their different roles.

14.   	Later ([2001] 1 A.C. at 173D) Lord Hoffmann set out how he considered that juries should be directed on this objective element of the law of provocation:
“In my opinion, therefore, judges should not be required to describe the objective element in the provocation defence by reference to a reasonable man, with or without attribution of personal characteristics. They may instead find it more helpful to explain in simple language the principles of the doctrine of provocation. First, it requires that the accused should have killed while he lost self-control and that something should have caused him to lose self-control. For better or for worse, section 3 left this part of the law untouched.  Secondly, the fact that something caused him to lose self-control is not enough. The law expects people to exercise control over their emotions. A tendency to violent rages or childish tantrums is a defect in character rather than an excuse. The jury must think that the circumstances were such as to make the loss of self-control sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This is entirely a question for the jury. In deciding what should count as a sufficient excuse, they have to apply what they consider to be appropriate standards of behaviour; on the one hand making allowance for human nature and the power of the emotions but, on the other hand, not allowing someone to rely upon his own violent disposition. In applying these standards of behaviour, the jury represent the community and decide …. What degree of self-control “everyone is entitled to expect that his fellow citizens will exercise in society as it is today”.
The general principle is that the same standards of behaviour are expected of everyone, regardless of their individual psychological make-up. In most cases, nothing more will need to be said. But the jury should in an appropriate case be told, in whatever language will best convey the distinction, that this is a principle and not a rigid rule. It may sometimes yield to a more important principle, which is to do justice in the particular case. So the jury may think that there is some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonably have expected of him and which it would be unjust not to take into account. If the jury takes this view they are at liberty to give effect to it.”
He continued:
“My lords, I do not wish to lay down any prescriptive formula for the way in which the matter is explained to the jury. I am sure that if judges are freed from the necessity of invoking the formula of the reasonable man equipped with an array on unreasonable “eligible characteristics”, they will be able to explain the principles in simple terms. Provided that the judge makes it clear that the question is in the end one for the jury and he is not seeking to “impose a fetter on the right  and duty of the jury which the Act accords to them”, the guidance which he gives must be a matter for his judgment on the facts of the case.”
15.  	Lord Clyde was the third among the majority of their Lordships in favour of dismissing the appeal. At the conclusion of his speech he stated his agreement with the speeches of Lord Slynn and Lord Hoffmann.  He considered (at [2001] 1 A.C. 177H) the position of a battered wife and stated:  
“The reasonable person in such a case should be one who is exercising a reasonable level of self-control for someone with her history, her experience and her state of mind. On such an approach the jury should be perfectly capable or returning a realistic answer and thus achieve a verdict which would fairly meet any peculiarities of the particular case consistently with the recognition of the importance of curbing temper and passion in the interest of civil order.”
Later, at page179G, he stated:
“It seems to me that the standard of reasonableness in this context should refer to a person exercising the ordinary power of self-control  over his passions which someone in his position is able to exercise and is expected by society to exercise. By position I mean to include all the characteristics which the particular individual possesses and which may in the circumstances bear on his power of self-control other than those influences which have been self-induced. Society should require that he exercise a reasonable control over himself, but the limits within which control is reasonably to be demanded must take account of characteristics peculiar to him which reduce the extent to which he is capable of controlling himself. Such characteristics as an exceptional pugnacity or excitability will not suffice. Such tendencies require to be controlled. Section 3 requires that the accused should have made reasonable efforts to control himself within the limits of what he is reasonably able to do. This is not to destroy the idea of the reasonable man not to reincarnate him; it is simply to clothe him with a reasonable degree of reality.  But as the statute prescribes, the matter comes to be one of the circumstances of the case and the good sense of the jury. Although the statute expressly refers to a reasonable man it does not follow that in directing a jury on provocation a judge must in every case use that particular expression. The substance of the section may well be conveyed without necessarily importing the concept of a reasonable man.”
16.     	In our view it is to be concluded from the majority speeches in  Smith that the question whether the defendant should reasonably have controlled himself is to be answered by the jury taking all matters into account. That includes matters relating to the defendant, the kind of man he is and his mental state, as well as the circumstances in which the death occurred. The judge should not tell the jury that they should, as a matter of law, ignore any aspect. He may give them some guidance as to the weight to be given to some aspects, provided he makes it clear that the question is one which, as the law provides, they are to answer, and not him.

17.   	This approach has the considerable advantage that it is unnecessary to determine whether what has been called a “characteristic” of the accused is an eligible characteristic for the purposes of the second element in provocation, the objective element, or is one of which no account should be taken. It avoids categorising human defects into one category or the other, which would otherwise be necessary and is surely artificial.  We refer in particular to the difficulties which arose in R v Dryden  [1995] 4 All E.R. 987 and to R v Humphreys [1995] 4 All E.R. 1008.  It is all a matter for the jury.
18.	One of the leading authorities considered by their Lordships in Smith  and to which  we were referred by Mr Campbell-Clyne for the appellant was R v Camplin [1978] A.C. 705. We need say no more for the purposes of this judgment than that the jury were there directed by the judge that they should not consider whether the provocation was sufficient to make a reasonable boy or lad lose his control, but a reasonable man. The House of Lords upholding the Court of Appeal held that the jury should have been directed in different terms including taking account of the age and sex of the defendant. The well-known passage is at [1978] A.C. 718F in the speech of Lord Diplock.
The present case
19.    The complaint is that the judge did not direct the jury that, in considering whether the defendant should reasonably have controlled himself,  they could take into account his jealousy and possessiveness.
20.	In accordance with good practice the proposed direction on provocation was discussed between the judge and counsel.  The transcript is incomplete.  However, it is clear that with regard to the second element leading counsel for the appellant was anxious that the jury should be invited to take the appellant’s unusually possessive and jealous nature into account.  The judge said 
 “I think I would probably tell them to consider all the circumstances, make allowances for emotions and the like and conclude with, ‘they have to consider what society expects of a man like this defendant.’  I don’t think I am prepared to add ‘an unusually possessive and jealous man like this defendant.’”
There was then an exchange between counsel and the judge in which counsel seems to have been distinguishing between an ever present characteristic such as extreme pugnaciousness and qualities or characteristics which only emerge in response to particular situations.  The judge’s response was to say that she could follow the reasoning more willingly if this had been a case were jealously was unjustified.  She continued
“I don’t therefore see that this reaches the stage of being irrational or exceptional in the sense that I think, looking at the speeches in Smith, it needs to be.”
Quite what that all added up to we find difficult to see but, in any event, what is important is not the route but the result, that is the direction which was eventually given to the jury.  So far as the second element of provocation is concerned the direction is to be found at 6D to 7D of the transcript.  
“The second aspect is this.  The fact that someone may have lost their self-control as a result of some provocative act cannot by itself be a defence to murder, because if it were it would mean anybody who found it difficult to control their emotions or their temper could kill and then say, “Well, I lost my self-control.  I’m not guilty of murder.”  The law isn’t that stupid, members of the jury.  The law expects people to control their emotions.  It expects people to exercise reasonable restraint.  Even if you are an unusually excitable sort of person the law expects you to control yourself.  So that is why you have the second aspect and that is why the section  keeps referring to the role of the jury and what a reasonable person would do.  So the law says, right, you the jury, you decide, representing the community as you do, you decide whether the circumstances were such or may have been such as to make the loss of self-control excusable so that you reduce the offence from murder to manslaughter. You apply the appropriate standards of behaviour and again you consider all the circumstances. You of course make allowances for human nature and the power of emotions but you have to consider and decide what society expects of a man like this defendant in his position.  If you are sure his behaviour was not a reasonable reaction, if you are sure his behaviour was inexcusable, then the verdict would be one of guilty of murder. If it was or may have been excusable your verdict would be ‘not guilty of murder but guilty of manslaughter by reason of provocation.”
21.	The first thing to be noted is that the judge did not remove obsessiveness and jealousy from the jury’s considerations.  Indeed having emphasised those features when dealing with the first element she advised the jury to take into account “all the circumstances” and decide the question by applying the standard of “what society expects of a man like this defendant in his position.”  That direction, it seems to us, leaves entirely open for the jury’s consideration the particular characteristics upon which the appellant was seeking to rely.  Indeed, a specific mention coupled with a comment that the jury may think that such characteristics constitute defects of character rather than an excuse for killing could be seen as far less favourable to the appellant than the direction which was actually given.  

22.	However, the matter does not end there.  Following retirement it is clear that the jury had difficulty in following the direction on provocation.  They sent a note.  We do not have its terms.  We do have a transcript of what passed between leading counsel for the appellant and the judge.  At one point counsel said 
“I would respectfully suggest the first thing that you do is, after you have dealt with, as it were the preliminaries and dealt with the ingredients of murder, I would respectfully suggest that you do repeat your directions on provocation.  The jury may be able to haul them in more easily a second time.”
	The judge accepted the suggestion.  When the jury returned she told them that she intended to read out what she had said previously.  That she then proceeded to do save that second time round she missed out what she had said earlier about “what society expects of a man like this defendant in his position.”  
23.	We think that the omission was unfortunate.  But does it render the conviction for murder unsafe?  We think not.  The original and the repeat direction have to be taken together.  The nature of the provocation together with the appellant’s characteristics must have been in the forefront of the jury’s considerations.  They had not been told at any stage to disregard those matters.  It is inconceivable that they would not have taken into account the appellant’s obsessive and jealous nature in determining whether or not the provocation was sufficient to provide such excuse as might reduce the offence from murder to manslaughter.  
24.	Accordingly this appeal is dismissed.
25.	However, we would not wish to leave this case without adding some further comments, particularly as appeals concerning the appropriate direction on provocation seem to have increased since the decision in Smith. 
26.	It is plain from the majority speeches in Smith that characteristics such as jealousy remain with the jury as matters which fall for consideration in connection with the second, objective element of provocation and section 3.  Plainly the jury must not be directed that they should take no account of them and it is essential that it is made clear that such matters may form part of their deliberations.  In this case we have concluded that the direction given was sufficient.  In many cases, however, it might well prove the better course to identify the particular characteristics relied upon whether or not accompanied by further guidance.
27.	In Lowe, unreported 21 February 2003 a decision of this Court, the practice was commended by which the judge places the proposed direction on provocation in writing before counsel for their consideration.  In that case, as in this, the jury came back with a question showing that they were having difficulty in understanding the direction.  It seems to us that there may also be considerable advantages in giving the direction to the jury in writing at the appropriate moment in the summing up before taking them through it.  It is asking a lot of a jury to absorb the direction as they listen to it and to carry it in their minds with them into the jury room.