My lord, the defence of provocation can be used to reduce the sentence of murder to the still serious offence of manslaughter. It exists to protect human frailty a matter i shall refer to later.
To begin if I may refer your lordship to s3 homicide act 1957 to be found at tab… of the bundle before you
‘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 both together) to lose his self control, the question whether 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.’
The defence of provocation has two elements:
1) What is known as the subjective test, taking into account everything both said and done to asses the gravity of provocation of the individual?
2) The objective element, capacity of self control, assessed to the standards as S3 states of the Reasonable man.
This has been explained in the case of cRown against Holly  volume 2 appeal courts at page 580, my lord are you familiar with the facts of the case?
Summary of facts to be found at tab of the bundle before you my lord
R v Holley
-The D and deceased lived together for a number of years and were both alcoholics.
– When drunk they had rows and were violent, during which the deceased would make derograty comments affecting the D’s self of steam
– After heavy drinking by both parties the D told the deceased she had just slept with another man
-the D picked up an axe intending to chop wood and the deceased said ‘you haven’t got the guts’
– Whereupon he lifted the axe and struck the deceased 7 to 8 times.
My lord I submit that We can distinguish the reffered case strongly against the case in question in this court today, that being the cause of provocation was largely a result of alcohol, I must also note this being self induced unlike the appellant in the case in question today.
The question to be asked therefore is what characteristics may be put forward for the jury to consider if a person acted reasonably as to the standards of a reasonable person after being provoked
What is the reasonable person, the purpose of this test and how should the jury be directed as to this hypothetical person are questions which must be put forward in this court to assess if justice has been achieved for either the deceased or the appellant,
I do not need to remind the court of the situation of the appellant. Prolonged abuse, unconsensual sex living a life of unhappiness… The ‘Battered woman syndrome’ can most certainly be linked to the appellant here.
My lord if I may submit the case of
cRown agasint Ahluwalia  volume 4 All England Reports at page 889, is your lordship familiar with the facts of the case? They can be found on tab…
Facts. Battered woman syndrome considered resulted in a conviction of manslaughter rather than murder due to diminished responsibility
Subject to 10 years of abuse the D poured petrol over her spouse whilst he was asleep causing his later death.
No evidence at trail was given of ‘Battered woman syndrome;. The court of Appeal held that hearing the evidence of the syndrome the D was not guilty of Murder but that of Manslaughter.
My lord if may I quote Lord Chief justice Taylor of Gosforth in the reffered case to define what is now known as battered woman syndrome?
At tab.. of the bundle before you will find page 897 of the judgment of the referred case. At the highlighted paragraph, D
‘This ground of appeal therefore turns upon the one characteristic which it is complained the learned judge ignored …..Not only had the appellant suffered violence abuse and humiliation over some ten years and thereby undergone a dreadful ordeal. That the course of ill-treatment had affected her personality so as to produce a state of ‘learnt helplessness’. A phrase used by experts who have identified this condition’
As my learned friend senior council has indicated ((on page 896 the)) ‘Slow burn’ reaction to cumulative provocation differs to the traditional view of reacting to provocation, that is the reaction following immediately the provocative act. ((on page 896 the))
In understanding this syndrome.. the appellant in the case today is suffering from I submit the argument the ‘reasonable person’ to who she must be judged under statute, 1957 homicide ACT should include these characteristics. There is a need to replace the objective test with the subjective elements used to assess if the defendant was provoked in the first place, it is then using these characteristics can we decide if a reasonable person would of acted in the manner the defendant did.
My lord may I submit the case director of public prosectutions against Camplin [1978[ appeals court page 705.
Is your lordship familiar with the facts of the case?
it represents the ability for the court to take each case on its own merits to identify what characteristics are to be considered when analysing such a situation.
-The Defendant a 15 year old boy was buggerd by the deceased and then taunted.
-using a chapatti pan the defendant killed the deceased
– convicted of murder by being judged as to the standards of the reasonable man, not the reasonable 15 year old boy.
– Appeal was allowed on the grounds that this was an incorrect interpretation of s3 homicide act 1957
Page 716 of the refferd case, which you will find at tab…. Lord Diplock summarises the role of S3 1957 Homicide Act
It retains the dual test, subjective and objective elements, but eliminates the limitations of what can amount to provocation.
Also at para D … ‘However slight it may appear to the judge, he was bound to leave to the jury the questions, which is one of opinion not of law; whether a reasonable man might have reacted to that provocation as the accused did’
He goes on… the reason for adopting the reasonable man test at point F.. was to reduce the incidences of fatal violence by preventing a person relying upon his own exceptional pugnacity or excitability as an excuse for the loss of self control’
At G,, ‘although it is 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 no powers of ratiocination bear no obvious relationship to powers of self control.’
Lord Diplock goes on to say that the judge may suggest considerations as to what is the reasonable person, to determine if the test is satisfied but.. point H.. ‘It is for them and no one else to decide what weight, if any, ought to be given to them’
Therefore my lord.
We have a recognised characteristic, which can be applied to any woman in the appellants situation,.. a statute stating how such information should be used,… but a clear misdirection from the judge to not even allow consideration of the facts by the jury. …The sole purpose of why we have juries in court is to analyse points of fact. Judging character,… how a person should behave according to the reasonable man, are points of fact and not law…. Not distinguishing R against Holley would ignore fundamental points of law.
I anticipate the respondents’ argument; that being we need to have set standards to judge people against, I submit we are not changing these standards but are just following s3 Homicide act 1957, in conjunction of this there may be an argument that without guidance to a reasonable man test a jury may not judge as to the standards they should
If I may submit the case of R v Smith (Morgan)  volume 4 All ER 289,
Is your lordship familiar with the facts?
In 1996 Morgan smith received a visit from his old friend James McCullagh, Both being alcoholics. They spent the night drinking an argument arose as to the belief of tools being stolen my McCullagh, one of many arguments spanning for 20 years. Smith took a knife to McCullagh resulting in his death.
The question was regarding the judge’s direction to the jury of the defence of provocation. Held characteristics were able to be considered regarding the gravity of provocation and the capacity of self control.
Lord Hoffman discussing the construction and reasoning of S3 Homicide act 1957,
Page 302 at paragraph H, which you will find at tab… of the bundle my lord
‘The traditional way in which judges attempt to deflect the jury from a perverse verdict of this kind is to withdraw the issue. But s3 was intended to deprive the judge of even this method of control. The jury was to be sovereign and have the power in theory as well as in practice to decide whether the objective element was satisfied.’
303, para b ‘ it follows in my opinion that it would not be consistent with s3 for the judge to tell the jury as a matter of law that they should ignore any factor or characteristic of the accused in deciding whether the objective element of provocation had been satisfied. That would be to trespass upon their province.’
Page 312 para G ‘ 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 characteristics.’
We are then given what lord Hoffman believes to be the proper direction, that is simply the principles of provocation should be explained to the jury so that a correct decision can be made in light of what parliament intended by S3.
the accused should have done something to provoke, s3 leaves what this ‘something is’ untouched
this ‘something’ is not enough, there are standards of self control society expects.
The jury must think that the circumstances were such as to excuse the defendant to reduce the capacity of self control as judged to societies standards of the current time
I close this submission by putting forward to your lordship these facts to show that the strict reasoning of following the objective ‘reasonable man’ test as in cRown against Holley is not sufficient to provide justice for the appellant today in receiving a fair trial.
May I remind the court we are not here to suggest the appellant is innocent, nor guilty, simply the jury should have decided upon this but with the opportunity of hearing the evidence they should have so as to judge in corresponded with statute, case law and the standards of society of the current day, (which are not being changed we still need standards, just in a court room they are to be judged by the jury as a matter of fact, not law)
If I can be of no further assistance your lordship that concludes my submission
Possible answers to judges questions
If I may refer your lordship to tab . Here If I may submit the quotation of Lord Nichols of Birkenhead on page… (Just before dissenting)… 36.. Continues at 37 alcohols.
It needs to be noted that reasons for the decision in Holley.. alcohol.
717 para A camplin definition of a ‘reasonable man’
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 will exercise in society as it is today.
308 R v Smith – why we will not use the defence of diminished responsibility.
‘There are in practice bound to be the cases in which the accused will not be suffering from abnormality of mind within the meaning of S2 ( a state of mind so different from that of ordinary human beings that the reasonable man would term it abnormal’)
but will nevertheless have mental characteristics (temporary or permanent) which the jury may think should be taken into account for the purpose of the provocation defence.
The boundary between the normal and abnormal is very often a mater of opinion. Some people are entirely normal in respects and behave unusually in others.
There are people (such as battered wives) who would reject any suggestion that they were ‘different from ordinary human beings’ but have undergone experiences which, without fault or defect of character on their part have affected their powers of self control. In such cases the law now recognises that the emotions which may cause loss of self control are not confined to anger but may include fear and despair.’
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