Case No: 2002/01644/D1
Neutral Citation Number: [2005] EWCA Crim 1880
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CRIMINAL DIVISION)
ON APPEAL FROM THE CROWN COURT AT MANCHESTER
(Mr Justice Field)

Royal Courts of Justice 
Strand, London, WC2A 2LL

Wednesday, 13 July 2005
Before:

LORD JUSTICE SCOTT BAKER
MRS JUSTICE GLOSTER
and
JUDGE METTYEAR
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Between :

	REGINA	Appellant	
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	FAQIR MOHAMMED	Respondent	

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Mr Stephen Kamlish Q.C and Mr Ali Bajwa (instructed by Stephensons) for the Appellant
Mr Paul Reid Q.C (instructed by The Crown Prosecution Service) for the Respondent

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Judgment

Lord Justice Scott Baker: 

1.	This application was listed first as an application to re-list a renewed application for permission to appeal against conviction and, if granted, with the renewed application to follow.
2.	The applicant was convicted of murder in the Crown Court at Manchester before Field J and a jury on 18 February 2002. He was sentenced to life imprisonment. He was refused leave to appeal against conviction by Tomlinson J. He renewed his application, which was refused by the full court on 18 March 2003, the court being presided over by the Lord Chief Justice.
3.	The present application first came before a different division of this court presided over by Clarke LJ on 26 October 2004. The circumstances are set out in Clarke LJ’s judgment and we do not repeat them here. Suffice it to say that the court accepted there had been an administrative error, and that, if that error had not occurred, the strong likelihood was that the applicant’s renewed application would have been adjourned with the view to being argued by the applicant’s new legal team rather than disposed of as a non-counsel application.
4.	The court was, however, concerned with the delay of about a year that had occurred after 18 March 2003 before the application to re-list was made in March or April 2004. It adjourned the application for an explanation.
5.	 That explanation has now been provided in the form of an affidavit sworn by Mr Campbell Malone. The Crown, having read that affidavit, do not seek to argue that the application should be refused on the grounds of delay. We too have read the affidavit and are of the same opinion. We have therefore considered the applicant’s application for permission to appeal on its merits. Mr Kamlish Q.C, who has appeared for the applicant, has advanced this application on the basis of his perfected grounds of appeal. They have entirely replaced the earlier grounds. Before dealing with them in detail it is necessary to describe broadly the facts of the case.
6.	The deceased, Shahida, was the applicant’s daughter. She lived with him in the family home at Longsight near Manchester. He was a devout Muslim. On the evening of 28 June 2001 he returned from the mosque to discover Bilal Amin, a young man with whom she had been having a relationship since the previous February, in her bedroom. The applicant, who had previously obtained a spare key to the bedroom door, locked the door and fetched a knife from his bedroom. He returned to Shahida’s bedroom. Bilal was by then leaving through an upstairs window. The applicant went downstairs and found Shahida whom he then stabbed to death. The pathologist noted at least 19 knife injuries.
7.	The applicant accepted he was guilty of manslaughter but ran two defences, either of which would have reduced murder to manslaughter, namely lack of intent and provocation.
8.	The Crown’s case was that the relationship between Bilal and Shahida was kept secret, except from Shahida’s sisters. About a month before Shahida was killed, the applicant became suspicious and accused her of going out with Bilal. When Shahida denied it, the applicant became angry and threw a television remote control at her. Majida, one of her sisters, witnessed this and said the applicant made a gesture and also said that he would, “get her later.” Shahida faced up to him, saying: “go on, hit me.” The applicant apologised. About this time, Shahida’s brother and step brother warned Bilal off.
9.	We turn in a little more detail to events on the day of the killing. On 28 June 2001, Majida said that her father had been unhappy as she and Shahida had not got up until about 1pm. His mood later lightened. He went to the mosque. On his way back he visited the restaurant of his son in law, Mohammed Ishfaq, who testified that the applicant was in a good mood, albeit concerned that his daughters were not spending much time at home.
10.	Whilst the applicant was out, Shahida arranged for Bilal to visit her later that evening when the applicant would again be visiting the mosque. The applicant returned home, where an aunt and uncle dined with the family. The applicant remained in a good mood before leaving for the mosque at 8.15pm. He was expected back at between 11.30pm and midnight. Bilal came round, and he and Shahida went into her bedroom. At about 10pm Majida heard the applicant’s car return, and so telephoned Bilal on his mobile to warn him. She got a response but there was no conversation.
11.	The applicant asked where Shahida was. He went upstairs and knocked on her door. Majida heard some conversation between them. Shahida came downstairs after locking her bedroom door and went to make tea. There was a commotion upstairs. Shahida went into the hallway and asked the applicant in Punjabi what was wrong. She then screamed three times in English, “some one help me!” The applicant had her in a headlock, and was stabbing her in the stomach with a knife. She had her hands over her stomach, trying to stop the knife. He was trying to look her in the face, and to get her on the floor. She was trying to stay on her feet. She said in Punjabi, “hit me, go on hit me” but this made no difference. The applicant stabbed her three or four times, pushing the knife in really hard. When Majida tried to grab his arm, which was around Shahida’s neck, he held the knife out, aiming at Majida’s neck. Majida backed off and tried to telephone the police on her mobile, but could not get the digits correct. The applicant carried on stabbing Shahida. Majida eventually got out of the house and saw some neighbours. The applicant was in his drive. He was covered with blood. When Majida called him a “bastard” he started to run at her, but the girl next door took her in. The police arrived and took him away.
12.	Bilal’s evidence was that he had stayed overnight at the house on the day before Shahida’s death, leaving at 12 noon. Immediately before the killing, he was in Shahida’s bedroom with her when they heard the applicant’s footsteps and learned that he had returned unexpectedly. Shahida went downstairs at the applicant’s request to make a cup of tea, locking the bedroom door behind her. When the applicant unlocked and opened the door shortly afterwards, he appeared calm but had an angry look. As Bilal climbed out of the window, the applicant left the room, locking the door behind him.
13.	Sajida, one of Shahida’s sisters, said that, in the month before the killing, the applicant’s attitude changed and he appeared to be quieter. Quite often he mentioned a boy to Sajida but did not name him. Sajida suggested he take the car away from Shahida. The applicant said, “I am just watching. If there is a lad, I will either kill her or myself.”
14.	When interviewed, the applicant, through an interpreter, said that what Bilal and Shahida had done was not permitted by his religion. He wanted to catch Bilal but Shahida had stopped him. He could not control himself, lost his temper and killed Shahida. There were the following questions and answers:
“Q. Despite it being against your culture, do you think it is reasonable to kill somebody for what your daughter did?
A. Absolutely. It is in our religion it’s in our holy book, the Koran, without marriage, a man and women can not sleep together on the same bed. If they sleep together, they can’t call themselves Muslim. There is no alcohol allowed in our religion and there is no sex allowed before marriage. This not allowed in our religion. If it was disallowed in your religion, you would have done that.
Q. Would your daughter not have been entitled to some sort of trial, under the Muslim religion, sir?
A. No. You can speak to someone amongst the family or in the bazaar or market, but not in bed.” 
And a little later:
“Q. So, you believe that what you did to your daughter was reasonable, Mr Mohammed?
A.	I can’t say that it was reasonable, or not, but at that time, I had lost my temper and I had killed her.
Q.	Do you have a habit of losing your temper, sir?
A.	Not like that but, but if something like that happens I, myself, is not a Muslim. Three times I have been to Saudi Arabia for pilgrimage.
Q.	Do you have a problem controlling your temper, on a day to day basis?
A.	No, that is a normal life, if one always is in anger.
Q.	And you are not an angry man, I take it?
A.	No.
Q.	Are you a, normally violent man, Mr Mohammed?
A.	No.”
15.	The Crown called a great deal of evidence that showed the applicant was a man of violent disposition. It is this evidence that gives rise to the applicant’s main ground of appeal. The evidence was given by the applicant’s children. It can be summarised for present purposes as follows.
16.	Majida said the applicant was a strict, violent and angry man who used to beat her mother breaking her arms and bruising her. On one occasion she tried to jump out of the window. He also beat Abida and Shahida on one occasion and, on another, hit her aunt with a stick. The younger boy, Acmal, suffered most and she and Shahida the least.
17.	Abida said the children would be beaten when they broke a rule. The applicant would strike anywhere or everywhere, using his hand or a shoe or a stick. When she was late for school she was required to undertake a punishment known as “chicken” which involved squatting with her head through her legs and her hands on her ears until her legs gave way. Isgar suffered the same punishment. Abida ran away from home on two occasions because of the applicant’s violence. Acram was beaten with a stick and left outside naked. In re-examination Abida said she feared the applicant might react to Shahida’s relationship with Bilal by killing Shahida.
18.	Khalada Rashid gave evidence that the applicant lost his temper a lot and was violent to all the family. When she was 14 he hit her over the eye with an axe handle, she required stitches and still has the scar. On another occasion he held her hand in scalding steam. Once she was put in a cold bath for wetting the bed. She too ran away from home and complained to social services about the applicant’s violence. The applicant frequently assaulted her mother.
19.	Acram’s evidence was that the applicant was violent to all the family. As the eldest he bore the brunt. When he was 4 or 5 the applicant split his head open with a poker leaving permanent scarring. He was once hit with a scythe leaving two scars on his lower left arm. The applicant used to beat his wife with whatever came to hand. In cross-examination Acram he said he was in a state of shock about Shahida’s death but that it was inevitable sooner or later.
20.	Isgar described the applicant as short-tempered. He did not think twice about lashing out at his wife and children. When he was 10 or 11 he was stripped naked and beaten with a brass bar. His grandfather saved him. He too was subjected to the “chicken” punishment. On one occasion he was tied up and threatened with having boiling water poured over him unless he owned up to a misdemeanour. Once the applicant apologised for his anger, saying he could not control it.  
21.	Turning to the defence case, the applicant denied that he was violent. His children were not telling the truth. His children had caused problems but he had only disciplined them in the ordinary way. His religion forbade hitting daughters with a weapon. He admitted throwing a remote control at Shahida but had not intended to hit her. When Shahida told him she did not have a boy friend, he accepted it and was no longer suspicious. He said that, on 28 June, when he went to Shahida’s room, the way that Bilal Amin looked at him said: “I have just slept with your daughter.” The thrust of his evidence was that, from that point on, he effectively lost it. For two weeks he could not remember what happened next.
22.	The essence of the case on provocation, for it was provocation rather than lack of intent that was in reality his main defence, was that, as a Muslim of devote belief, he believed that his daughter should not have boyfriends but should enter an arranged marriage. Also, sex outside marriage is a grave offence which, if discovered, brings shame on the families of the individuals involved. What he discovered on the fateful night caused him sudden loss of self-control and to behave in an entirely uncharacteristic way. His wife had died in 2000, since when he had had problems with depression. There was independent evidence of this, including medical evidence. He had been badly affected by his wife’s death. 
23.	We proceeded to hear full argument from both sides notwithstanding that the case was before the court on a leave application only. At the conclusion of the hearing we indicated that we were prepared to give leave to appeal on grounds 1 and 4 but not on the other four grounds. Mr Kamlish did not wish to advance any further argument on grounds 1 and 4. We deal with those grounds therefore as an appeal, with the leave of the court, notwithstanding that, for convenience, we shall continue to refer to Mr Mohammed as the applicant.
Ground 1
The prosecution called inadmissible and prejudicial evidence of the applicant’s past violence towards his second wife and his children.
24.	The summary of the evidence that we have recited makes it clear that the evidence of past violence adduced by the prosecution was indeed very considerable. It spanned for the most part a period of between 20 and 6 years before Shahida’s death. Indeed the judge asked counsel, after the close of the evidence and during submissions prior to summing up, why the Crown had called, “all this evidence…..to suggest that the defendant is of a violent disposition.”
25.	It is necessary to examine with a little care how the trial proceeded. The Crown’s case was that the genesis of the incident that led to Shahida’s death was to be found a month before, when the applicant threw the remote control at her. He brooded on what he had learned and, if Sajida’s evidence was correct, had said that he was watching and would kill either himself or her. Unbeknown to Shahida and her sisters, he had obtained a key to her room.
26.	The Crown approached the trial on the basis that the first issue was whether the applicant lost his self-control. His violence was, so the Crown submitted, severe, controlled and motivated by anger; it was not something that emerged for the first time on the day of the killing. What he believed to be the relationship between Shahida and Bilal had been gnawing away at him for some time. The violence, although sadly far graver in result, was no different in pattern, from what had gone before. The burden was on the Crown to disprove provocation. The applicant had said in interview that he was a placid and peaceful man and was running his defence on that basis. Evidence of violent disposition was therefore relevant to negative that aspect of his personality and to refute the suggestion that he was of such a nature and that his conduct could only be properly understood as brought about by loss of self-control as a consequence of grave provocation.
27.	The applicant was represented at trial by experienced leading and junior counsel, Mr Stephen Riordan Q.C and Mr Ahmed Nadim, as well as a very experienced solicitor, Mrs Unterman. In a letter of 3 February 2005 Mrs Unterman wrote:
“We would like to confirm that the issue of Mr Mohammed’s character was anxiously and critically considered both before the evidence was put before the jury and after the jury returned the verdict of guilty. Upon mature reflection, we remain of the view that in the light of our instructions and the overall evidential dynamics of the prosecution faced by Mr Mohammed it was inevitable that evidence of his character would be brought before the jury.”
28.	An earlier attendance note of 29 January 2002 makes it plain that the defence intended to call witnesses to prove the applicant was a good kind man, who loved his children. In the event such witnesses were called. Mrs Unterman’s letter continues:
“Strategically, from Mr Mohammed’s prospective, if the evidence of character was going to be heard by the jury it was preferable that it be heard in chief as opposed to the prosecution calling it by way of rebuttal evidence.
In the circumstances, it was felt inappropriate to raise arguments against the admissibility of evidence when our collective judgment was that they were doomed to fail.”
29.	In January of this year, privilege having been waived, leading counsel signed a note dealing with this and other criticisms that had been made of the conduct of the trial. In it, he pointed out that the applicant’s defence was that he was a peaceable, non-violent man, with deep and sincerely held religious beliefs, who possessed ordinary powers of self-control. He was a man of (effectively) good character. The behaviour of Shahida and Bilal under his roof was intensely provocative and caused him to lose his self-control and kill Shahida. His behaviour was sufficiently excusable to reduce murder to manslaughter. The Crown’s case was that this was a completely misleading picture. The truth was the applicant was a man who lost his temper easily and had shown this over a lengthy period with repeated violence towards his daughters and second wife. The witness statements of the applicant’s children showed that his violence was severe, apparently controlled, and motivated primarily by anger.
30.	Mr Riordan said that the defence was faced with the contention that this evidence was admissible, first to show that, on the fateful night, the applicant lost his temper rather than his self-control and, second, that his violent disposition was a characteristic which the jury ought to have in mind when deciding whether the applicant’s conduct was sufficiently excusable to warrant a verdict of manslaughter rather than murder. In the light of the law of provocation as it is now understood, it is no longer relevant to consider whether a defendant’s conduct was sufficiently excusable to warrant a verdict of manslaughter rather than murder. Accordingly the evidence was not admissible on the issue of excusability. There was in truth no such issue. We shall turn later in this judgment to the recent change in the law.
31.	Mr Riordan went on in his note to say that the defence team had considered the admissibility of the evidence before the trial began. He said they came to the conclusion the evidence was relevant and admissible for the two purposes advanced by the Crown. Any application to exclude it was bound to fail. Mr Riordan was in our view correct, albeit as the law is now understood there was no issue of excusability on which past violence could be relevant. However, the main and underlying reason why the evidence was admissible was to refute the defence case that the applicant was a placid and peaceful man. The evidence was properly admissible on that ground. Mr Riordan said that the defence team considered three further questions: (i) whether the interviews could be edited by redacting reference to his peaceable non-violent nature; (ii) whether the more ancient allegations of violence could be excluded; and (iii) whether the judge could be persuaded to exclude the evidence in the exercise of his discretion on the ground its prejudicial effect outweighed its probative value. 
32.	In our judgment the first of these questions really holds the key to this ground of appeal. Mr Riordan points out in his note that redaction was not a viable option because reference to the applicant’s alleged peaceable and non-violent nature was such an important feature of the case that the defence would be hopelessly emasculated without it. It is a trite observation that the defence in a criminal trial has to be conducted within the ambit of the defendant’s instructions. No one was better placed than the applicant’s counsel and solicitors to assess the “feel” of how the applicant sought to answer the allegations against him. Mr Reid, for the Crown, readily conceded that it would have been simple to edit the interviews so as to exclude the questions and answers relating to peaceable and non-violent nature. But there was little point in doing so if the issue was going to emerge at a later stage in the trial. Much better for the jury to have the whole story from the beginning rather than for devastating new information to come out during the trial. As Mr Riordan pointed out, strictly speaking the evidence was in rebuttal of the defence of provocation, but this was foreshadowed in the interviews and the burden was on the Crown to disprove provocation. It was therefore sensible for the evidence to be led so that the applicant knew what case he had to meet from the start. It also occurs to us, in a case such as this where the Crown’s evidence about the applicant’s past behaviour came exclusively from members of his family, that he may well have hoped, or even anticipated, that the Crown’s witnesses would not come up to proof. We shall come in a moment to what three of the daughters did in the course of the trial which perhaps bears this out.
33.	On the second point, we agree that it would have been unrealistic to exclude the earlier part of the evidence, as the Crown’s case was that the evidence, as a whole, presented a continuous picture. On the third point, it is difficult to evaluate the strength of an application that was not made. Much would depend on the context and stage of the trial at which it was made. If the applicant was not advancing a positive case that he was a peaceable non-violent man (i.e. with the interviews redacted) the position would have been very different. It would have been much easier to advance an argument that the prejudicial effect of introducing the evidence outweighed its probative value. But that is not what in the event what happened. It is possible that other counsel might have applied to exclude the evidence and the judge would then have had to exercise his discretion. Even if the evidence was initially excluded, it might have been admitted in rebuttal following the applicant’s own evidence. It is apparent that junior counsel had some initial misgivings after the trial about whether the right course had been taken (see attendance note of conference with junior counsel immediately after the trial). However, three days later, on 21 February 2002, another attendance note records that a long discussion had taken place between leading and junior counsel and that they were satisfied that the judgments made and decisions taken did not fall outside the scope of those which could have been made and taken by competent counsel. We agree with this assessment, self-serving as it was, and we certainly do not agree with the submission by Mr Kamlish that failure to object to the admissibility of the evidence and/or to edit the interview was “flagrantly incompetent.” For reasons which will become apparent, we do not think the admission of this evidence rendered the conviction unsafe.
The judge’s direction to the jury.
34.	The judge was plainly concerned how he was to direct the jury about the relevance of evidence of the applicant’s violent disposition and raised the matter with counsel before final speeches. Counsel had conducted the trial, and the judge summed up, on the basis that the law on provocation was as decided by the House of Lords in R v Smith (Morgan) [2001] 1 AC 1; that is to say, that, when the jury came to consider the objective element of provocation, they should adopt the approach advocated by Lord Hoffmann in that case, the critical question being whether the applicant’s loss of self-control was excusable. We shall return in more detail to the law and in particular the recent change in a moment. 
35.	Mr Kamlish complains that there was some change of position by Mr Reid, for the Crown, during the course of argument at the trial and that this illustrates that he was, himself, not clear about the relevance of the evidence. We are, however, unpersuaded that there is anything in this because, by the morning of 15 February 2002, when submissions were being made as to how the judge should direct the jury, his position was plain enough. What, in the end, is critical is the manner in which the judge directed the jury. This is to be found at 6D of the summing up.  The judge directed the jury that, provocation having been raised, they had to consider two questions. First, was or might the applicant have been provoked by things said or done by Shahida and/or Bilal into a sudden loss of self-control so that he was no longer the master of his mind and killed as he did? And second, were the circumstances of the killing such, or might they have been such, as in their reasonable view to make the applicant’s loss of self-control, so that he acted as he did, sufficiently excusable to reduce the gravity of the offence from murder to manslaughter?
36.	The judge gave the jury the standard direction that loss of self-control was more than mere loss of temper. The applicant had to be so overcome that he was incapable of controlling his behaviour. He told them they should take into account any characteristic which increased, or may have increased, the effect of the provoking conduct and, in particular, his Muslim and cultural beliefs. Also they should take into account his depression and, “any conclusions you may reach on whether or not the defendant had a violent disposition.” He directed the jury that, on the second question, they should ask themselves whether there was anything about the applicant’s own personality, character, or religious beliefs which reduced his power of self-control and, if so, whether it amounted to a sufficient excuse for the killing to reduce the crime from murder to manslaughter. He told them a man cannot rely on his own violent disposition by way of excuse. There then followed this passage at 7H:
“The defendant contends that he is a peaceable, non-violent man. The prosecution have sought to rebut that by calling evidence from six of his children, to the effect that he was violent to them and to their mother. You must, therefore, consider whether you are sure that the defendant has a violent disposition, that is to say he is prone to lose his temper and resort to violence much more readily than you would regard as reasonably normal. If you are sure that the defendant is a man of violent disposition, go on and ask yourselves whether you are sure that it was his violent disposition which was the sole, I emphasise sole cause of his loss of self-control. In answering this question, you must bear in mind the defendant’s other characteristics, namely, his depression and his strongly held religious and cultural beliefs. If, notwithstanding these other characteristics, you are sure that the sole reason for the defendant’s loss of control was his violent disposition, this will not be a case of provocation. If you are not sure that the defendant is a man of violent disposition or you are not sure that a violent disposition was the sole cause of this loss of control, go on and consider his other characteristics and ask whether anything about them provides a sufficient excuse to reduce his crime from murder to manslaughter.
Mr Kamlish submits that it never was the Crown’s case that the sole reason the applicant lost his self-control was his own violent disposition. Be that as it may, the judge had to direct the jury how to approach their decision on the basis of the various findings that were open to them.
37.	The judge returned to the applicant’s temperament at 13G where he said:
“Temperament is, of course, a characteristic and it is something for you to take into account when considering the issue of provocation. The defence say that the defendant is a peaceable, non-violent man, who did not have a quick temper. The prosecution have sought to rebut that, by calling evidence from six of his children, to the effect that the defendant was a violent father and husband.”
38.	The judge then summarised their evidence, the applicant’s response to it and the evidence of the defence witnesses, who had testified that he was a kind man. He then directed the jury as to the relevance of evidence about the applicant’s temperament in these terms at 28B:
“It is relevant, first, to whether the defendant lost his self-control. The prosecution say that the defendant was a man who could be violent in a calm and calculated way. The fact that you lose your temper does not mean that you have lost your self-control, say the prosecution. They point to the evidence of cold baths, the chicken punishment and use of boiling water, and that the defendant could be violent, in this calm calculated way. They say that on the occasion of the death of Shahida, the defendant did not lose his self-control when he found Bilal in Shahida’s bedroom and when Shahida blocked his way. The prosecution say that the defendant did not lose it, he was angry, lost his temper, but acted in a cool calculated manner.”
39.	The judge then continued as follows at 28E:
“The defendant’s temperament is also relevant to the second question that arises, on the question of provocation. I will remind you, members of the jury of what that second question is. The second question is this: were the circumstances of the killing such or might they have been as, in your reasonable view, to make the defendant’s loss of self-control sufficiently excusable to reduce the gravity of this offence from murder to manslaughter. Now members of the jury, in respect of this second question, you must consider whether you are sure that the defendant was a man with a violent disposition, that is to say, that he is prone to lose his temper and resort to violence much more readily than you would regard as being reasonably normal.”
40.	It seems to us, therefore, that the effect of the judge’s direction was as follows. On the first question, whether the applicant lost his self-control, if the sole reason for loss of control was the applicant’s violent temperament, then provocation could not arise. If, on the other hand, the reason the applicant lost his self-control was either nothing to do with his violent temperament, or only partly caused by it, then the jury had to go on and consider the second question, namely whether there was anything about his other characteristics, strongly held cultural and religious beliefs and depression, that provided a sufficient excuse to reduce murder to manslaughter. Earlier in his summing-up the judge had warned the jury that a man cannot rely on his violent disposition as an excuse and that everyone has a duty to try and exercise self-control. That is undoubtedly the law. But the second question, as framed by the judge, involved consideration of whether the appellant’s loss of self-control was excusable. In answering that question, the jury needed to look at what caused the applicant to lose his self-control. This may have been, in part, his religious and cultural beliefs and, in part, his violent disposition. It would have been unrealistic, in the circumstances of this case, to have sought to divide the applicant’s personality or character so that the jury were able to consider only a part only of it on the issue of excusability.
41.	The judge returned to this topic at the very end of his summing-up at 55A, when he told the jury that, if they were not sure that he was a man of violent disposition, or not sure that his violent disposition was the sole reason he lost his self-control, then they were to put on one side any question of violent disposition with regard to whether his loss of self-control was sufficiently excusable to reduce the gravity of the offence from murder to manslaughter. This appears on its face to be inconsistent with the earlier passage. However, he did go on to say that they should, have regard to the applicant “in the round”.
The current state of the law.
42.	The submission of counsel to the judge, and the directions of the judge to the jury, naturally proceeded on the basis of the law as it was then understood to be, which was as expressed in the majority speeches of their lordships in Morgan Smith. Very recently, indeed since the present appeal was argued before us, the Judicial Committee of the Privy Council has again considered the law of provocation and concluded, in H. M. Attorney General for Jersey v Holley (Privy Council Appeal No3 of 2004), by a majority of six to three, that Morgan Smith was wrongly decided and that the view of the minority in that case is to be preferred. We have given counsel on both sides the opportunity of making further written submissions in the light of the decision in Holley and this they have done. Although Holley is a decision of the Privy Council, and Morgan Smith a decision of the House of Lords, neither side has suggested that the law of England and Wales is other than as set out in the majority opinion given by Lord Nicholls in Holley and we have no difficulty in proceeding on that basis. In the circumstances we do not think that this change, or perceived change, in the law affects the outcome of this appeal because, as we shall explain in a moment, the objective yardstick against which the effect of provocation falls to be measured has become tighter. Indeed the law is once again as it used to be before the decision in Morgan Smith.
43.	Provocation is a statutory partial defence to murder and the burden of disproving it, once raised, rests on the prosecution. Section 3 of the Homicide Act 1957 provides: 
“Where on a charge of murder there is evidence on which a jury can find that the person charged was provoked (whether by things done or 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.”
44.	Stripped to its bare essentials two conditions are necessary for the defence. These are (i) the subjective condition that the accused was actually provoked so as to lose his self-control and (ii) the objective condition that the reasonable man would have done so. As Lord Nicholls of Birkenhead pointed out in Holley, at paragraph 6, this second condition has two elements. The first calls for an assessment of the gravity of the provocation and the second for application of an external standard of self-control; what is to be expected of a person of ordinary self-control.
45.	In the present case there was an issue whether the applicant in fact lost his self-control or merely lost his temper. The prosecution relied on the applicant’s past conduct as evidence that what he did was all part of a picture that had been the scene many times before, albeit on this occasion with far graver consequences. The line between loss of temper and loss of self-control is in our view incapable of precise definition and is in each case a matter for the jury.
46.	Turning to the objective condition, how the reasonable man would have reacted is too a matter for the jury, but as Blackstone’s Criminal Practice  2005 points out at page 141, how the judge should direct the jury as to the meaning of the reasonable man test has become a vexed question.
For many years the test adopted was that propounded by Lord Diplock in DPP v Camplin [1978] AC 705, 718:
“……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…..would affect the gravity of the provocation to him….”
47.	The question was not merely whether such a person would, in like circumstances, be provoked to lose his self-control but also whether he would react to the provocation as the accused did. Thus, see for example Luc Thiet Thuan v The Queen [1997] AC 131 where brain damage that merely affected the power of self-control rather than the gravity of the provocation was irrelevant to the reasonable man test. Luc Thiet Thuan however, itself a majority decision, gave rise to other expressions of view that the reasonable man test, as then understood, was too tightly drawn to operate justly in some cases. The House of Lords reconsidered the test in  Morgan Smith where the certified question was:
“Are characteristics other than age and sex, attributable to the reasonable man, for the purpose of section 3 of the Homicide Act 1957 relevant not only to the gravity of the provocation to him but also to the standard of self-control to be expected.”
48.	The House of Lords held by a majority of 3 to 2 that they were. The particular characteristic in question in that case was the defendant’s severe depression. Lord Slynn of Hadley said at p153 that it was not enough for the accused to say that he was a depressive and therefore could not be expected to excise control. The jury had to ask whether he had exercised the degree of self-control to be expected of someone in his situation.
49.	Lord Hoffmann said at 173C that, while not departing from the principle in section 3, rather than describing the objective element in the provocation defence by relevance to a reasonable man, with or without the attribution of personal characteristics, it might be more helpful to describe in simple language the principles of provocation. He went on at 173D:
“First, it requires that the accused should have killed while he had lost self-control and that something should have caused him to lose self-control. For better or 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 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 allowances for human nature and the power of the emotions but, on the other hand not allowing someone to rely on his own violent disposition. In applying these standards of behaviour, the jury represent the community and decide, as Lord Diplock said in Camplin [1978] 705, 717, 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 have to yield to a more important principle, which is to do justice in the particular case. So the jury may think that there was some characteristic of the accused, whether temporary or permanent, which affected the degree of control which society could reasonable have expected of him and which it would be unjust not to take into account. If the jury take this view, they are at liberty to give effect to it.”
50.	His conclusion was that the judge should not have directed the jury as a matter of law that the effect of Smith’s depression on his powers of self-control was “neither here nor there.”
51.	It was on the basis of Lord Hoffmann’s speech that the judge directed the jury. In particular he invited the jury to consider whether the circumstances were such as to make the appellant’s loss of self-control sufficiently excusable to reduce the offence from murder to manslaughter. Although the other members of the majority put it slightly differently and did not use the word ‘excusable’ they each sought to loosen the perception of the reasonable man in Section 3 so that the jury could consider the particular circumstance of the defendant and see whether he had measured up to the standard of self-control to be expected of him. In other words, in answer to the certified question characteristics other than age and sex were to be attributed to the reasonable man as relevant to the standard of self-control to be expected of him.
52.	It has always been the law, at least as far back as R v Kirkham (1837) 8 CP 115 that a man cannot pray in aid his own violent disposition to bolster a defence of provocation. Coleridge J observed at 119 that: “though the law condescends to human frailty, it will not indulge human ferocity. It considers man to be a rational being, and requires that he should exercise a reasonable control over his passions”. That passage was cited by Lord Clyde at 177F in Morgan Smith and also by Lord Nicholls in Holley. There are other references in the reports to an unusually excitable or pugnacious individual not being entitled to rely on provocation which would not have led an ordinary person to act as the defendant did. See e.g. Mancini v Director of Public Prosecutions [1942] A C 1, 9. 
53.	Lord Nicholls in Holley stressed that a ‘reasonable man’ in Section 3 means a person of ordinary  self-control citing Lord Diplock in Camplin at p717 and Lord Simon of Glaisdale in the same case. He said at paragraph 14 that the statutory reasonable man has the power of self-control to be expected of an ordinary person of like sex and age. In other respects, that is in respects other than power of self-control, the reasonable man shares such of the defendant’s characteristics as the jury think would affect the gravity of the provocation to him.
54.	In following the minority opinions in Morgan Smith, Lord Nicholls said this:
“Exceptional excitability or pugnacity is one thing. But what if the defendant is suffering from serous mental abnormality as in the Morgan Smith case where the defendant suffers from severe clinical depression? Is he, for the purposes of the defence of provocation, to be judged by the standard of a person having ordinary powers of self-control?
The view of the minority in the case of Morgan Smith is that he is. The standard is a constant, objective standard in all cases. The jury should assess the gravity of the provocation to the defendant. In that respect, as when considering the subjective ingredient of provocation (did the defendant lose his self-control) the jury must treat the defendant as they find him, ‘warts and all’ as Lord Millett observed. But having assessed the gravity of the provocation to the defendant, the standard of self-control by which his conduct is to be evaluated for the purpose of the defence of provocation is the external standard of a person having and exercising ordinary powers of self-control. That is the standard the jury should apply when considering whether or not the provocation should be regarded as sufficient to bring about the defendant’s response to it: see Lord Millett, at page 211.”
55.	Thus the majority of their Lordships in Holley returned to the view of the law that had been expressed by the majority of the Board in Luc Thiet Thuan.  They rejected the alternative view that the jury should apply the standard of control to be expected of the particular individual. It was not appropriate for the jury to ask themselves whether the defendant exercised the degree of self-control to be expected of someone in his situation. The standard of self-control to be expected of the reasonable man in section 3 is fixed and not variable. Lord Hoffmann’s test of excusability introduced an unwarranted development of the law by the courts. The law was as settled by Parliament in 1957 in section 3.
56.	The difficulty for the judge in the present case was to cope with the interplay between the applicant’s past history of violence on the one hand and his cultural and religious beliefs and depression on the other. This was complicated further by the applicant’s past violence showing either or both of calculated violence on the one hand and the loss of temper on the other. 
57.	In our judgment the judge’s summing-up accurately reflected the law of provocation as it is was then understood. But the law has changed, as is apparent from the majority opinion of the Board in Holley delivered by Lord Nicholls. The law is back where it was before Morgan Smith. What that means, for the purposes of this case, is that the applicant’s temperament was relevant to the first or subjective element of provocation. It was also relevant to the gravity of the provocation to him where as Lord Nicholls noted, the jury has to take the appellant ‘warts and all’. It was not, however, relevant to how the reasonable man would have reacted for the reasonable man is a fixed rather than a variable creature. The yardstick is a person of the age and sex of the appellant having and exercising ordinary powers of self-control.
58.	Properly directed the jury should therefore have applied a narrow and strict test of a man with ordinary powers of self-control rather than the wider test of excusability that was put to them by the judge. The jury having convicted on the basis of the wider test, we cannot see any unsafety in the conviction. The same result would have been inevitable if the provocation direction had been on the basis of Holley.
Ground 4.
The judge erred in failing to direct the jury not to allow the evidence of the applicant’s past violence to prejudice them towards the applicant.
59.	This is the other ground on which we granted leave to appeal. Mr Kamlish submitted that this ground should logically be taken with ground 1 and we agree.
60.	The applicant’s past violence was, submitted Mr Kamlish, of a serious and scandalous nature. It was likely to excite emotion and cause hostility and prejudice towards the applicant. Indeed, he submitted, there was even a suggestion by Majida that the applicant had killed his second wife. This was not, however, part of the Crown’s case and emerged unexpectedly in cross-examination. The judge, understandably, made no reference to it in his summing-up. Mr Kamlish submitted the potential prejudice was made worse because the applicant’s six children gave evidence from behind a screen. There were a great many allegations of past violence and if the jury were satisfied that they, or only some of them, had occurred, the jury was likely to take an adverse view of the applicant as an individual. The jury should have been warned specifically not to let the evidence of past violence prejudice them against the applicant and to put it out of their minds if they were not sure it was relevant to the issue of provocation.
61.	The judge at the beginning of his summing up gave the jury the standard warning to put aside emotion and sentiment and try the case on the evidence. He drew attention to the fundamental issue between the applicant and the Crown whether he was a peaceable non-violent man or someone who readily resorted to violence. He summarised the evidence and directed the jury as to the relevance of violent disposition if that was what they found. He told them at 28A that his temperament was relevant to whether he lost his self-control. If they were not sure he was a man of violent disposition, or they were not sure his violent disposition was the sole course of his loss of control, they had to go on and consider the second question, namely whether there was anything about his other characteristics to amount to a sufficient excuse to reduce his crime from murder to manslaughter. He said at 28E, rightly in our view, that the applicant’s temperament was relevant to this second question as the law then required it to be put. We are unpersuaded that any additional warning about the evidence of the applicant’s violent disposition was required.
Grounds 2, 3, 5 and 6
62.	We declined to grant permission to appeal on these grounds and give our reasons briefly.
Ground 2 
The judge erred in refusing the defence application to discharge the jury in the light of letters received from two prosecution witnesses qualifying the evidence they had given.
63.	On 11 February 2002 after they had completed their evidence, but before the close of the prosecution case, the court received letters from Sajida and Khaleda. The broad purport of these letters can be described as partial retraction. They were directed to the statements they had made to the police rather than to the evidence they had given at the trial. The judge was invited to discharge the jury. He heard full argument, reserved his decision overnight and declined to do so. He had a discretion. Mr Kamlish no longer pursues this ground, conceding that the judge was entitled to reach the conclusion that he did, on the basis that the witnesses would be available to be recalled if the defence required this. 
Ground 3
The applicant’s counsel’s decision not to have Sajida and or Khaleda recalled renders the conviction unsafe.
64.	Mr Kamlish submits that the position	could not have been made any worse by recalling these witnesses. We do not agree. The defence legal team was understandably suspicious of the circumstances that caused Sajida and Khaleda to write to the court. There had been contact over the previous weekend between Sajida’s husband and Aslam, the applicant’s son by his former marriage, who was very supportive of his farther. Also, Sajida had not gone so far as to withdraw her evidence that the applicant had mentioned the possibility of killing Shahida or himself.
65.	It is plain from the notes supplied by Mr Riordan that the defence team gave careful consideration to whether these witnesses ought to be recalled and decided, on balance, that the dangers of doing so were too great. That was why an application was made to discharge the jury. Decisions of this kind are highly dependant on the “feel” of those who have the conduct of the defence. We do not think any justifiable criticism can be made of those then acting for the applicant. Nor is the safety of the conviction threatened by the course that was followed.
Ground 5
The judge erred in failing to direct the jury that the applicant’s good character was relevant in his favour to the likelihood of his having committed murder.
66.	The applicant had a conviction in 1971 for malicious wounding, contrary to section 20 of the Offences against the Person Act 1861, for which he was bound over to keep the peace and fined £10. The judge directed the jury that they should treat the applicant as a man of previous good character and directed them that it was relevant to his credibility. He gave no	“propensity” direction.  That was in accordance with the law as then understood: see R v Vye (1993) 97 CAR 134, 139: “It might be thought that in such a case (where the defendant charged with murder admits manslaughter) a second limb direction would be little help to the jury.” Subsequently, in Paria v R [2004] Crim LR 228, the Privy Council quashed a murder conviction and substituted manslaughter because the judge had not given any good character direction. The defence at the trial had been provocation. The jury should have been reminded that a man of good character might be unlikely to indulge in very serious violence without first being provoked. We were also referred to R v Gray [2004] EWCA Crim 1074, where Rix LJ set out various principles relating to the good character direction, albeit Paria does not appear to have been referred to.
67.	Any direction on propensity in the present case would have to have dealt separately with whether or not the jury thought the applicant had committed the acts of past violence alleged against him. It does not seem to us that any direction that the applicant’s good character was relevant as showing a lack of propensity to commit offences of violence would in the circumstances have been of any material assistance to him.
Ground 6
The judge erred in failing to direct the jury that certain evidence was not evidence against the applicant.
68.	 The evidence of which complaint is made was given by Mohammed Ishfaq and Bilal. The judge referred to Mohammed Ishfaq’s evidence at 11A in the summing up:
“The defendant’s son in law, the man who is married to Sajida and works in Mr Aslam’s restaurant, told you that he, like the defendant, is a very strict Muslim. He said, “if we see a girl….” He meant a daughter, “…..have sex outside marriage, we will kill her.” At the same time, he told you that it is undoubtedly the case that killing is forbidden by the Muslim religion.”
69.	Bilal gave evidence that he was warned off by Acmal, Shahida’s brother, and by Aslam his step brother. The judge directed the jury at 11F:
“The fact that he was warned off in this way, shows the attitude in the Pakistani community in England, that Pakistani girls should not have a boyfriend, they must remain chaste until marriage and then must only have sex within the marriage.”
70.	This evidence was all part of the overall picture in the case. It did not require any comment or direction from the judge.
71.	Following the decision in Holley, the applicant, through counsel, sought leave to add a further, seventh, ground of appeal in the following terms:
The learned judge misdirected the jury in directing them that they could reject the defence of provocation if they found that the sole reason for the applicant’s loss of self-control was his violent disposition.
In our judgment there is nothing in this ground and we refuse leave to appeal on it. The judge was simply covering the possible, albeit unlikely, situation where the only reason the applicant lost his self-control was his own violent disposition rather than as required by the section, “…….provoked (whether by things, done or things said or by both together), to lose his self-control.”
Conclusion.
72.	This was an unusual case in which the jury heard a great deal of evidence about the applicant’s previous violence to his family. The reason that it was called by the Crown was to refute the defence case that the applicant was a peaceable and non-violent man, whose loss of self-control was completely out of character and explicable only by the provocation to which he was subjected. The evidence was led, understandably in our judgment, without objection from the defence. The judge’s summing-up was fair and appropriate for the case. He explained the law to the jury as it was then understood, following the decision of the House of Lords in Morgan Smith. What we have to decide is whether we are satisfied the conviction is safe in the light of the law as it now is following Holley.
73.	The trial proceeded and the judge summed up on the basis of the law of provocation as it was understood to be at the time. That involved a more favourable interpretation to the applicant of the second limb, or objective condition, than is now the law. The jury was invited to consider, broadly, the excusability of the applicant’s conduct in accordance with Lord Hoffman’s speech in Morgan Smith, whereas they should have been invited to consider whether a person of the age and sex of the applicant of ordinary self-control would have acted as the applicant did. The jury should have been told that the applicant’s disposition for violence, if that is what they found that he had, could not assist him on that question; it was irrelevant. The jury, by their verdict, following the directions the judge had given them were satisfied, assuming the other criteria for provocation were met, that the applicant’s behaviour was not excusable so as to reduce the offence of murder to manslaughter. It is impossible to conclude that their verdict would have been any different if they had been directed on the tighter test, as explained in Holley. Accordingly, on the two grounds on which we have granted leave, the appeal is dismissed.