Once the subjective requirement is satisfied, that the defendant was provoked to lose self control, the court must go on to consider the objective requisite: The circumstances must be such that a reasonable man would have reacted as the defendant did. Perplexity arises over the expectation of a 'reasonable man', who is he? There is an implicit paradox – reasonable persons do not kill. Are we to measure D's behaviour against the vast majority of non-killing people, the defence would be bound to fail.
So if we believe that the defence should have meaning, what should be taken into account in deciding to allow it to succeed? That remains a decision of the jury, and not for the judge, unlike at common law to withdraw the issue from the jury if, in his opinion, there is no evidence upon which a jury could reasonably consider that the reasonable man might have done as the defendant did, as in the case of Pearson (1992) 13.
As a corollary of this, the section prevents the judge from instructing the jury how the reasonable man would have reacted in the circumstances. I my view a reasonable man could be a Sikh man, D, who in the execution of his faith wears a turban and while in the pub is enjoying a drink with his friend, S, who jokingly makes a remark and knocks his turban off his head is violently attacked by D resulting in the death of S.
The mere touching of someone's turban is a highly derogatory action in east-Indian cultures (not only religion), so the knocking of a turban would only make sense to someone who has an understanding of the culture, although the law remains idiosyncratic to cultural needs it is worth mentioning, that in order to be meaningful, Andrew Ashworth describes, "the "gravity" of the provocation must be expressed in relation to persons in a particular situation or group…
and personal characteristics should be considered by the courts14. It would be preferable, if juries were expressly and sensibly directed as to what they should and should not consider, rather than leaving the matter to their intuition and sympathies, these were the views of the Royal Commission on Capital Punishment15. Individual peculiarities which bear on the gravity of the provocation should be taken into account, whereas individual peculiarities bearing on the accused's level of self-control should not16
The question which came before the House of Lords in DPP v Camplin (1978)17 was whether the rule in Bedder v DPP (1954)18 which adumbrated the idea that the 'reasonable person' was not to be endowed with the defendants characteristics in which the House of Lords approved that the jury should ignore the fact that the youth was impotent when considering whether the deceased's conducted amounted to such provocation as would cause a reasonable or ordinary person to do as the defendant did.
In effect the jury were instructed to allow the defence only, if in their opinion, the ordinary, potent man would have responded in the same way as the accused. Bedder was bad law, for it is surely impossible to access the gravity of provocation without reference to the characteristics of the accused at which the taunts were directed19. The objective reasonable man was about to be emancipated from the defence of provocation. In Camplin, the appellant a boy aged 15, lost his self-control and killed a man who had buggered him and then laughed at him.
When the case reached the House of Lords it was held by Lord Diplock, that the accused's age was to be taken into account in determining the degree of self-control to be expected of an ordinary person. 20 He went on to say, in assessing the gravity of provocation, the defendant's history or personal circumstances might also be relevant. The same principles dictated the case of Morhall21. Taunts of the defendant's persistent glue sniffing addiction, ended up in violent fight, killing the deceased.
The House of Lords felt that the glue-sniffing characteristic should be attributed to the reasonable man when considering the gravity of provocation, i. e. how a reasonable glue sniffer would react in such circumstances22. However mental affirmity was an issue under contemplation. The Privy Council case Luc Thiet Thuan (1996) rejected mental abnormalities in the attribution to the reasonable man. However on the other hand the Court of Appeal considered mental impairments, in case such as Ahluwalia (1992), Humphreys (1995)23, Thornton (1996)24 and parker (1997)25
The issue arose for the consideration of the House of Lords in the case of Smith (2000)26 During the course of an argument the defendant Morgan James Smith stabbed his friend, McCullagh several times with a kitchen knife killing him, in his trial Smith put forward a number of defences including diminished responsibility and provocation. He claimed he lost his self-control as a result of McCullagh denial of the theft of his tools. The defence put forward psychiatric evidence that Smith was suffering from a severe form of depression, which made him more volatile.
In his summing up the trial judge advised excluded the depressive illness and its disinhibitive effects of the Smith's violent behaviour when consideration of provocation was concerned i. e. when deciding weather a reasonable person with ordinary powers, would have done as the defendant did. The Jury convicted him of murder. On appeal, the court of Appeal substituted the conviction to manslaughter. The court recognised however thorough review of authorities was necessary, gave leave to appeal and certified the following point of law of general public importance for the House of Lords consideration
"Are characteristics other than age and sex attributable to the reasonable man, for the purpose of s. 3 of the Homicide Act 1957, relevant not only to the gravity of the provocation to him but also to the standard of control expected? " The House of Lords, Lord Hobhouse and Millet dissenting, answered the question affirmatively and dismissed the appeal. 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'.
It was for the jury to make a measurement of the accused's behaviour against the standard of self-control, which ought reasonably expected of him27. In Camplin, Lord Diplock stated that the question whether the reasonable man would have done as the defendant did is to be decided by the jury 'drawing on there experiences of how ordinary human beings are to behave in real life' and that since the question is one of opinion of the jury, the evidence of witnesses as to how they think a reasonable man would react to provocation is not admissible28.
It would seem therefore that expert psychiatric evidence as to the effects of mental abnormalities is, strictly speaking, inadmissible. This was the view taken by Lord Clyde in Smith. Medical evidence concerning the effect the characteristics might have on self-control was not admissible. In my opinion this would beg the question are the jury supposed to have medical degrees in order to make assessments of the defendant's mental impairment!
Lord Hoffman took the view that section 3 of the Homicide Act 1957 made the jury sovereign in respect to the objective element. It was for them to determine not only whether the behaviour of the accused complied with the standard of self-control, but what the reasonable standard in the particular case should be. Lord Hoffman also stated, that it would be inconsistent with the section for the judge to tell the jury that they should ignore characteristics of the accused when deciding the qualification of the objective element of the defence.