The Homicide Act

The House held that no distinction should be drawn, when attributing characteristics for the purpose of the objective part of the test imposed by section 3 of the Homicide Act, between their relevance to the gravity of the provocation to a reasonable man and his reaction to it. Consideration may be taken of a relevant characteristic in relation to the accused's power of self-control, whether or not the characteristic is the object of provocation.

Lord Hoffman denied that there was justice in applying a standard of self-control that the defendant was incapable of attaining, In Camplin, although provocation was not directed at the boys age, his youthfulness was to be considered by the jury because the principle of human infirmity required one to do so, and the majority concluded there was nothing in the judgement to say that the same principle of compassion was not applicable to other characteristics which the jury might think need be taken into account.

The decision in Morgan Smith has enlarged the scope of the defence of provocation, it is prima facia obvious the leave it has taken regarding the traditional views on the defence of provocation, i. e. , from Camplin, Morhall and section 3. The majority in the House of Lords reasoned that Lord Diplock, in Camplin had not confined those characteristics relevant to self-control to age and sex.

However, Lord Hoffman recognised that if there was no limit to the characteristics which could be taken into account, there was a danger that the objective element would be worn out29 I believe that this is rather contradictory of Lord Hoffman as he stated earlier in his judgement that the jury remain 'sovereign', well why cant their assessments be to whatever limit they feel necessary? (see footnote 25). However the rationale of the reasonable man test is to set an objective standard by reference to 'the degree of self-control to be expected of the ordinary person with whom the accused's conduct is to be compared'30.

Whilst agreeing that those who are incapable of exercising ordinary self-control, is desirable, the minority pointed out that the defence was not an appropriate one. Where a mere trivial insult was enough to suffice provocation due to mental abnormality which in result renders a deficient exercise of self-control, his loss of self-control should be vested in his psychological make-up rather than the provocation he received, hence making the defence of provocation inappropriate.

Section 2 of the 1957 Act specifically deals with the defence of diminished responsibility, excusing those individuals whose mental liability is impaired, due to abnormality in mind. In Smith such abnormal characteristics were attributed in assessment of the reasonable man, indirectly incorporating the section 2 defence with that of section 3. The issue with this overlap is that burden of proof now lies with the prosecution, whereas the burden of proving diminished responsibility fell on the defendant.

The majority decision in Smith allowed this overlap, and escape the burden of proof required by section 2 by raising the provocation defence on its own or in conjunction with diminished responsibility, and introducing medical evidence of an abnormal condition impairing the defendant's power of self-control. In conclusion it can be said that the approach of the majority in Smith means that the accused is to be judged by his own impaired powers of self-control and questions the need for objective element of the defence.

The variable standard of self-control has left the defence in a destabilized state. The key issues in Smith focused on the entirety of a jury question as to whether D had measured up to the standard of self-control which is reasonably expected of him. Overall doubts remained as no model direction was given for juries to follow, the use of the image of the reasonable person is not recommended anymore.

The jury question is as: per Lord Slynn: whether D "has exercised the degree of self-control to be expected of someone in his situation"; per Lord Hoffman: whether D has exercised "the degree of self-control which society could reasonably have expected of him" or per Lord Clyde: whether D has exercised "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". Smith seems to have come up with a solution for 'battered women's syndrome ' and a better solution for cases such as Alhuwalia and Thornton by the overlapping of section 2 by 3.

Smith gives a stronger argument for mercy killers, who can plead the defences, as their characteristics will be considered and their mental impairments during the killing hence giving more better and fair judgments in case such as Cocker31, nevertheless problems are faced as the objective test in section 3 now becomes more subjective and is in a process of evaporation. 1 [1975] QB 691 – where the provocation came from a man who was having an affair with the wife of the accused. The courts accepted that it was acceptable for provocation to come from a person other than the deceased, the wife. 2 (1986) 83 Cr App R 319 3 [1997] 2 Cr App R 94